Hungarian Yearbook of International Law and European Law 2014 9789462741973, 9789462365032

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Hungarian Yearbook of International Law and European Law 2014

Hungarian Year bo ok of International Law and European Law 2014

Marcel Szabó (Editor-in-Chief ), Petra Lea Láncos, Réka Va r g a a n d T a m á s M o l n á r ( E d s . )

Published, sold and distributed by Eleven International Publishing P.O. Box 85576 2508 CG The Hague The Netherlands Tel.: +31 70 33 070 33 Fax: +31 70 33 070 30 e-mail: [email protected] www.elevenpub.com Sold and distributed in USA and Canada International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786, USA Tel.: 1-800-944-6190 (toll-free) Fax: +1 503 280-8832 [email protected] www.isbs.com Eleven International Publishing is an imprint of Boom uitgevers Den Haag.

ISBN 978-94-6236-503-2 ISBN 978-94-6274-197-3 (E-book) © 2014 | Eleven International Publishing This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. Printed in The Netherlands

Table of Contents Contributors

xi

Editor’s Note

xiii

Part I Thematic Part: Identity, Nationality and Citizenship 1

The Background and the Functions of the European Convention on Nationality Péter Kovács

3

2 The Right to a Nationality as a Human Right? Mónika Ganczer

15

3 Fear of Autonomy for Minorities Gábor Kardos

35

4 The ‘Genuine Link’ Principle in Nationality Law Judit Tóth

45

5

Multiple Citizenship in Hungary: Recent Developments in a European Perspective Tamás Wetzel and Kinga Debisso The Prohibition of Arbitrary Deprivation of Nationality under International Law and EU Law: New Perspectives Tamás Molnár

57

6

7 Dual Citizenship in the Force Field of the European Union Laura Gyeney Multiple Citizenship – A Break with the One Man, One Vote Principle? Petra Lea Láncos

67

93

8

v

107

Table of Contents Part II Forum: The Baka Case 9 The Baka Case – The Unbearable Price of Individual Justice Mart Susi

121

10 The Labour Lawyer’s Reading of the Baka Case Gábor Kártyás

131

Part III Developments in International Law 11

The Benefits and Limitations of a Human Rights Approach to Environmental Protection Dinah Shelton Law in Mind: Towards an Explanatory Framework for Customary International Law László Blutman

141

12

13 Jurisdiction v. State Immunity in the 21st Century László Burián Understanding the Responsibility to Protect: Textual Anomalies and Interpretative Challenges in the 2005 World Summit Outcome Gábor Sulyok

157

191

14

15 14, 15, 16… Reforms of the European Court of Human Rights Tamás Lattmann Repetitive Cases before the Strasbourg Court: The Pilot Judgment Procedure at the European Court of Human Rights Sándor Szemesi

207

223

16

243

17 Human Rights, Civil Rights and Eternity Clauses Zsuzsa Szakály

259

18 GMO as a Weapon – a.k.a. a New Form of Aggression? Anikó Raisz

275

vi

Table of Contents Part IV Developments in European Law 19

The Compensation for Agricultural Land Confiscated by the Beneš Decrees in the Light of Free Movement of Capital Ágoston Korom and Laura Gyeney European Values, Fundamental Rights and the Private International Law of the European Union Sarolta Szabó

289

20

The Connecting Factor of Nationality in Relation to the Principles of EU Law Katalin Raffai

307

21

327

22 Legal Issues of Harmonizing European Legal Migration Ágnes Töttős

343

23 European Dilemmas of Family Reunification Szigeti Borbála

369

24 The Myths We Built around EU Consumer Law Tamas Dezso Ziegler

377

25

How to Regulate? The Role of Self-Regulation and Co-Regulation Lóránt Csink and Annamária Mayer The Possibilities of the Restraint of Media Content Prior to Publication András Koltay

403

26

Quota Rules in Respect of Audiovisual Media Regulation – On the Borderline of Economic and Cultural Considerations Levente Nyakas

421

27

447

Part V Hungarian State Practice 28

Traps of Judicial Cooperation in Criminal Matters: The Tobin Case Petra Bárd

vii

469

Table of Contents

29

On the Issue of the Representation of Nationalities in the Parliament Gábor Kurunczi Case-Law of the Supreme Court and the Curia in Administrative and Labour Law Cases András Kovács

507

30

Case-Law of the Supreme Court and the Curia in Civil and Economic Law Cases András Osztovits

525

31

Case-Law of the Supreme Court and the Curia in Criminal Law Cases Gábor Molnár

535

32

‘You Could Have Put It More Politely’ – Remarks on the Constitutional Regulations of Freedom of Assembly Barnabás Hajas

549

33

34 Children’s Rights in the Hungarian Ombudsman’s Practice Agnes Lux The Effectiveness of the Principle of Equal Pay in Hungarian Judicial Practice – With Special Attention to the New Directions of European Legal Practice Márton Leó Zaccaria

559

573

35

36

Summary of Decision No. 14/2013 (VI. 17) AB of the Constitutional Court of Hungary – On The Constitutionality of Article 17(3) of the Act No. CXCVI of 2011 on National Assets and of Article 4 of the Act No. LXXI of 1994 on Arbitration

Constitutionality of Precluding Arbitration Regarding National Assets Mónika Ganczer

587

603

37

The Hungarian Constitutional Court’s Judgment on Hungary’s New Anti-Arbitration Rules Csongor István Nagy

619

38

viii

629

Table of Contents Part VI Review of Hungarian and International Scholarly Literature 39

About the Monograph on the Incorporation of Norms of International Origin into the Hungarian Legal System Sándor Szemesi

641

40 Handbook on European Private Law Tamas Dezso Ziegler

645

41 The Legal Status of the Arctic in International Law János György Drienyovszki

649

Index

653

ix

Contributors Chairman of the Editorial Board: Péter Kovács (Pázmány Péter Catholic University, Budapest; Constitutional Court of Hungary) Members of the Editorial Board: László Blutman (University of Szeged) András Jakab (Hungarian Academy of Sciences) Gábor Kardos (Eötvös Loránd University, Budapest) Eszter Kirs (University of Miskolc) Judit Lévayné Fazekas (Széchenyi István University, Győr) András Osztovits (Károli Gáspár University of the Reformed Church, Budapest; Curia of Hungary) Csaba Pákozdi (Ministry of Foreign Affairs, Hungary) Laura Gyeney (Péter Pázmány Catholic University, Budapest) Gábor Sulyok (Széchenyi István University, Győr; Hungarian Academy of Sciences) Elisabeth Sándor-Szalay (National University of Public Service, Budapest) Ernő Várnay (University of Debrecen) László Milassin (Széchenyi István University, Győr) Zsuzsanna Horváth (University of Pécs) Editor-in-Chief: Marcel Szabó (Péter Pázmány Catholic University, Budapest; Deputy Ombudsman responsible for the protection of the interests of future generations) Editors: Petra Lea Láncos (Péter Pázmány Catholic University, Budapest) Réka Varga (Péter Pázmány Catholic University, Budapest) Tamás Molnár (Corvinus University, Budapest) Peer Reviewers: René de Groot (Maastricht University) Robert D. Sloane (Boston University) Olivier Vonk (Maastricht University) Pogonyi Szabolcs (Central European University, Budapest)

xi

Contributors

Anne Peters (Max Planck Institute for Comparative Public Law and International Law, Heidelberg) Alberto Alvarez Jimenez (University of Waikato) Roger Blanpain (Catholic University of Leuven) Charlotte Steinorth (Central European University, Budapest) Törő Csaba (Hungarian Institute of Foreign Affairs, Károli Gáspár University) Bronwen Manby (London School of Economics and Political Science – Centre for the Study of Human Rights) Ulf Linderfalk (Lund University) Komanovics Adrienne (University of Pécs) Bostjan Zalar (University of Ljubljana) Kees Groenendijk (University of Nijmegen) Pasqualetti Gergő (Permanent Representation of Hungary to the EU) Klopfer Ádám (Ministry of Interior, Hungary) Pető Gábor (Permenant Representation of Hungary to the EU) Tom Gibbons (University of Manchester) Stefan Hinghofer-Szalkay (Max Planck Institute for Comparative Public Law and International Law, Heidelberg) Polyák Gábor (Corvinus University, Budapest) Christian Tomuschat (Humboldt University Berlin) Simon Hentrei (Max Planck Institute for Comparative Public Law and International Law, Heidelberg) Norbert Reich (University of Bremen) Paul Macmahon (London School of Economics and Political Science)

xii

Editor’s Note In 2012 the European Union was awarded the Nobel Peace Prize ‘for over six decades contributed to the advancement of peace and reconciliation, democracy and human rights in Europe.’1 The unprecedented success of European integration lies in the functionalist, low politics method envisaged by Jean Monnet and Robert Schuman, premised on the attainment of the political goals of peace and the ever closer union of the peoples of Europe through relentless economic convergence. The Nobel Committee laid high hopes in the democratization mission of the European Union, stating that the desire for EU membership promotes democracy and human rights as well as bolstering the reconciliation process in aspirant states.2 However, the entrenched method of democratizing through free trade seems to have reached its limits in Eastern Europe, the showcase being the escalation of the conflict in the Ukraine in the wake of the polemics surrounding the European Union-Ukraine Association Agreement and the Deep and Comprehensive Free Trade Area. A warning sign could have been Armenia backing out of the same deal, choosing to join the Russian led Eurasian Union/Customs Union instead. Russia’s hold on the post-Soviet states is a mixture of economic threats and Russian nationalism. While the EU may mitigate Russian punitive economic measures targeting disobedient states, the promise of trade preferences is inapt in tackling the interwoven issues of identity, nationality and minority status. The European Neighbourhood Policy guided by the imperative of convergence through trade and a package of democracy and human rights requirements may have to be refocused to better suit the complex ethnic and cultural characteristics of Central and Eastern Europe shaped predominantly by the history of the last two centuries. In particular, the deeply rooted and contentious questions of identity, historical wounds and ensuing political cleavages cannot be addressed through a ‘one size fits all’, economically driven process of integration. Already the experience of the Central and Eastern European Member States of the Union shows that political integration and economic prosperity cannot serve as a panacea for deep-seated animosities between the peoples of the region: following accession, political opposition was rekindled. European states have sought various solutions to bind nationals living beyond state borders to the home country, especially by granting such nationals the status of citizenship. In 2010 the Hungarian Parliament amended Act LV of 1993 on Hungarian Citizenship in order to allow for the naturalization of ethnic Hungarians living

1 2

Source: www.nobelprize.org/nobel_prizes/peace/laureates/2012/eu-facts.html. Ibid.

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Editor’s Note

beyond the country’s borders as a form of historical compensation and kin-state constitutional commitment. The thematic part of the present volume centres around these questions of nationality, offering insights into the different solutions European states employed to deal with the difficult issues of identity, loyalty and citizenship. The authors explore the gradually changing state approaches to multiple citizenship, as well as the shift in the focus of international conventions dealing with nationality. The interrelatedness of Member State and Union citizenship is vividly illustrated by the notorious Rottmann case, shedding light on the limits of Member State discretion in withdrawing citizenship. Although Union citizenship has failed to solve deeply rooted problems magnified in the process of Central and Eastern European nation state building, free movent and residence rights result in a gradual deterritorialization of citizenship, prompting the need for a rethinking of the established genuine link principle under international law. Besides the thematic part, the second volume of the Hungarian Yearbook of International Law and European Law reports on current developments in the field of international law and European law, concluding with the latest implications of international law and European law in Hungarian state practice. We wish you a good read in the hope of welcoming in you among the readers of our upcoming 2015 volume of the Hungarian Yearbook in International Law and European Law! Marcel Szabó and Petra Lea Láncos

xiv

Part I Thematic Part: Identity, Nationality and Citizenship

1

The Background and the Functions of the European Convention on Nationality

Péter Kovács*

1.1

Introduction

Under the auspices of the Council of Europe, the contemporary context of citizenship legislation and the states’ attitude towards double citizenship are shaped in light of the European Convention on Nationality. This does not mean however, that this treaty law instrument was the mechanism that triggered the current legislative activity of European states. On the contrary, this convention should much rather be understood as the fruit and consequence of the progressive metamorphoses in the approach of the states to dual citizenship.

1.2

The Exclusiveness of the Nation-State Version of Citizenship

As is known, citizenship is by no means an eternal legal institution: even if rights and obligations had already been afforded to free inhabitants belonging to a given territory (i.e. generally to cities, ‘polis’ etc. in the antiquity and the medieval times), the instrument assumed greater relevance in wake of the burgeoning nation-state concept during the 19th and 20th centuries. On the one hand, the individual was no longer attached to a town or a city but to a ‘state’ i.e. a smaller or larger organized territory composed of numerous cities, villages and other territorial units. On the other hand, this attachment was of a long term and exclusive character: the possession of one citizenship generally excluded the simultaneous possession of an other. The reasons for this exclusivity were rooted in historical and political factors such as the animosity and mistrust between states, compulsory military service, state taxation policy, etc. Loyalty, as an inherent element of citizenship must however also be taken into account: in case of the simultaneous possession of citizenships of hostile or warrior countries, the double national was considered at least suspect by both sides. Double citizenship could also have an influence on the individual’s professional carreer in public administration,

*

Judge of the Constitutional Court of Hungary; Head of Department, Péter Pázmány Catholic University, Faculty of Law. E-mail: [email protected].

3

Péter Kovács

which became either closed as such to him or at least restricted without access to important, high ranking posts. (Whatsmore, compliance with the military obligation in country A could be legally considered as high treason in country B.) In order to avoid these situations and recognizing the automatisms inherent in the two main philosophical – technical approaches to the acquisition of nationality (jus sanguinis and jus soli), coupled with the institution of naturalization, states first attempted to conclude bilateral agreements to avoid cases of double nationality. As regards children born to multinational families, parents were generally obliged the choose either of their respective nationalities, while in the case of immigration, the renunciation of the previous nationality was perceived as a precondition for naturalization. After the redrawing of the borders of the Central European states following World War I, the new frontiers brought with them the automatic acquisition of a new nationality complete with the infamous right of option: those affected were free to express their will to preserve their previous nationality, at the same time, they were obliged to leave the country. The notorious and unsuccessfull 1930 The Hague Codification conference followed this philosophy introducing – albeit not as a main rule – a certain automatism in the acquisition and loss of nationality.1

1.3

The Council of Europe and the Follow-Up of the Old Philosophy

Already in 1963, the Council of Europe tackled the general items, including the most important issue of multiple nationality: the question of military service. The Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality was nevertheless framed according to the old method: the Convention was aimed expressly at the prevention of double nationality,2

1

2

1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws, 12 April 1930, (infra: LoN Convention of 1930) Art. 7: ‘In so far as the law of a State provides for the issue of an expatriation permit, such a permit shall not entail the loss of the nationality of the State which issues it, unless the person to whom it is issued possesses another nationality or unless and until he acquires another nationality’ (emphasis added). 1963 Strasbourg Convention on Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, 6 May 1963 (infra: CoE Convention of 1963). Chapter I – Reduction of cases of multiple nationality Article 1: ‘(1) Nationals of the Contracting Parties who are of full age and who acquire of their own free will, by means of naturalisation, option or recovery, the nationality of another Party shall lose their former nationality. They shall not be authorised to retain their former nationality. (2) Nationals of the Contracting Parties who are minors and acquire by the same means the nationality of another Party shall also lose their former nationality if, where their national law provides for the loss of nationality in such cases, they have been duly empowered or represented. They shall not be authorised to retain their former nationality.’ (emphasis added).

4

1

The Background and the Functions of the European Convention on Nationality

abolishing the different financial obstacles attached to renunciation.3 Although the states’ right of consent to renunciation was recognized, this was far from a genuine right of veto: states were called upon to consider the individual’s decision with understanding.4 As far as military obligations were concerned, the convention emphasized that the service should be effectuated in principle in one country only and namely in the country of habitual residence.5 The question of voluntary service, as well as service in the reserve were also duly taken into consideration. The 1977 additional protocol6 contemplated introducing a notification system on every new acquisition of nationality by individuals possessing the citizenship of another contracting party.7 This notification had to contain all the personal data identifying the given person. (name, birth, address, etc.). An amending protocol8 of 1977 added some new facilities to the system. In 1993, a second amending protocol was opened for signature.9 This latter protocol already opened the door towards multiple nationality.10) 3

CoE Convention of 1963, Art. 3: ‘The Contracting Party whose nationality a person desires to renounce shall not require the payment of any special tax or charge in the event of such renunciation.’ 4 CoE Convention of 1963, Art. 2: ‘(1) A person who possesses the nationality of two or more Contracting Parties may renounce one or more of these nationalities, with the consent of the Contracting Party whose nationality he desires to renounce. (2) Such consent may not be withheld by the Contracting Party whose nationality a person of full age possesses ipso jure, provided that the said person has, for the past ten years, had his ordinary residence outside the territory of that Party and also provided that he has his ordinary residence in the territory of the Party whose nationality he intends to retain […] (emphasis added). 5 CoE Convention of 1963: see Arts. 5 and 6. 6 Additional Protocol to the Convention on Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, Strasbourg, 24 November 1977. 7 Additional Protocol, Art. 1: ‘Each Contracting Party undertakes to communicate to another Contracting Party any acquisition of its nationality by an adult or a minor who is a national of this State, which has taken place according to the conditions contained in Art. 1 of the Convention.’ Art. 2: ‘(1) This communication is to be made by means of a form according to the appended model within a delay of not more than six months from the date the acquisition of nationality has become effective. The information printed on the form shall be drafted in all the languages of the member States of the Council of Europe and in the languages of non-member States adhering to the Convention. The Secretary General of the Council shall produce the necessary translations and communicate them to the governments of the member States of the Council and States acceding to the Convention. (2) The authorities of the State issuing the communication may decline to complete the information relating to item 4 of the form.’ 8 The Protocol amending the Convention on Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, Strasbourg, 24 November 1977. 9 Second Protocol amending the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, 2 February 1993. 10 The protocol would add three new, complementary paragraphs in Art. 1 of the CoE Convention of 1963:

5

Péter Kovács

The popularity of these instruments remained limited even though all of them are still in force: the Convention of 1963 has thirteen11 contracting parties, the first amending protocol has only eight12 while its additional protocol13 only four contracting parties. Today, the second amending protocol has only two ratifications.14

1.4

The Council of Europe and the New, Understanding Philosophy

The Council of Europe was confronted in the nineties with a situation where the facts did not correspond with the coordinates of the sixties. On the one hand, the number of the member countries increased with the collapse of the Berlin Wall and the end of the East-West conflict. Due to the progressive admission of nearly all the Central and Eastern-European countries, former allies or members of the Soviet Union, today the Council of Europe numbers fourty-seven countries. On the other hand, it was an undeniable fact that the number of multinational Europeans increased – instead of saying dramatically, I should rather say: naturally. This development was of course very much a consequence of the implementation of the principle of free movement of workers in the European Communities and the European Union’s concept of European citizenship. The matrimonial consequences of free movement, migration and immigration, coupled with the automatisms of the jus sanguinis and jus soli principles inevitably increased the number of binational children. Meanwhile, the dismemberment of several multinational states such as the Soviet Union, Czechoslovakia and Yugoslavia brought into this complex picture problems of double nationality and also of statelessness. Due to the above, the Council of Europe also changed its approach and struggled with a new paradigm: if multiple citizenship is inevitable, instead of aiming for its decrease, it should be regulated, especially the details of the consequences of double nationality.

11 12 13 14

‘[…] where a national of a Contracting Party acquires the nationality of another Contracting Party on whose territory either he was born and is resident, or has been ordinarily resident for a period of time beginning before the age of 18, each of these Parties may provide that he retains the nationality of origin. […] in cases of marriage between nationals of different Contracting Parties, each of these Parties may provide that the spouse, who acquires of his or her own free will the nationality of the other spouse, retains the nationality of origin. […] when a national of a Contracting Party who is a minor and whose parents are nationals of different Contracting Parties acquires the nationality of one of his parents, each of these Parties may provide that he retains the nationality of origin.’ Austria, Belgium, Denmark, France, Germany, Ireland, Italy, Luxemburg, The Netherlands, Norway, Spain, Sweden, United Kingdom (status as of May 2013). Belgium, Denmark, Luxemburg, The Netherlands, Norway, Spain, Sweden, United Kingdom (status as of May 2013). Belgium, Luxemburg, The Netherlands, Norway (status as of May 2013). Italy and The Netherlands (France denounced the protocol) (status as of May 2013).

6

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The Background and the Functions of the European Convention on Nationality

With its twenty contracting parties15 the European Convention on Nationality16 – a ‘remarkable convention’ as de Groot puts it17 – is definitely more popular than the Convention of 1963, which nevertheless preserved its legal validity. Understanding nationality as citizenship irrespective of etnicity,18 the European Convention on Nationality is built on the following structure: i. general principles, ii. acquisition, loss and recovery of nationality, iii. procedures, iv. multiple nationality (in general, in case of state succession and in case of military obligations), v. cooperation, vi. final clauses. The general principles cover the question of competence, non-discrimination as well as four guiding principles. Competences19 are regulated nearly verbatim in the same way as in the Convention of 1930.20 The sovereign regulatory competence is counterbalanced with the requirement of its conformity to international law.21 The non-discrimination rule adds to the traditional wording of international human rights treaties the prohibition of discrimination between individuals acquiring nationality by birth or naturalization.22 Article 4 stipulates,

15 Albania, Austria, Bosnia and Herzegovina, Bulgaria, Czech Republic, Denmark, Finland, Germany, Hungary, Iceland, Moldova, Montenegro, The Netherlands, Norway, Portugal, Romania, Slovakia, Sweden, FYROM, Ukraine (status as of May 2013). Signatures – for the time being – not followed by ratification: Croatia, France, Italy, Latvia, Luxemburg, Poland, Russia. 16 European Convention on Nationality, Strasbourg, 6 November 1997 (infra: Coe Convention of 1997). 17 G.R. de Groot, ‘The European Convention on Nationality: A Step towards a Ius Commune in the Field of Nationality Law’, 2 Maastricht Journal of European and Comparative Law (2000), p. 117. 18 Coe Convention of 1997, Art. 2: ‘»nationality« means the legal bond between a person and a State and does not indicate the person’s ethnic origin.’ 19 CoE Convention of 1997, Art. 3: ‘(1) Each State shall determine under its own law who are its nationals. (2) This law shall be accepted by other States in so far as it is consistent with applicable international conventions, customary international law and the principles of law generally recognised with regard to nationality.’ 20 LoN Convention of 1930, Art. 1: ‘It is for each State to determine under its own law who are its nationals. This law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality.’ The deliberate identity of the wording is confirmed in § 28 of the explanatory report of the Convention of 1977. (www.conventions.coe.int/Treaty/en/Reports/ Html/166.htm). 21 As Tanel Kerikmäe puts it, ‘Thus, the discretion of a state to determine by law who its nationals are is relative rather than absolute.’ T. Kerikmäe, ‘European Convention on Nationality and States’ Competence: The Issue of Human Rights’, II Juridica international (1997), p. 26. 22 CoE Convention of 1997, Art. 5: ‘(1) The rules of a State Party on nationality shall not contain distinctions or include any practice which amount to discrimination on the grounds of sex, religion, race, colour or national or ethnic origin. (2) Each State Party shall be guided by the principle of non-discrimination between its nationals, whether they are nationals by birth or have acquired its nationality subsequently.’

7

Péter Kovács

The rules on nationality of each State Party shall be based on the following principles: a. everyone has the right to a nationality; b. statelessness shall be avoided; c. no one shall be arbitrarily deprived of his or her nationality; d. neither marriage nor the dissolution of a marriage between a national of a State Party and an alien, nor the change of nationality by one of the spouses during marriage, shall automatically affect the nationality of the other spouse. Based on the above principles, the acquisition, loss and recovery of the nationality are regulated in a balanced manner. States are obliged to grant ex lege citizenship for children, foundlings born or found on their territory if at least one of the parents is their citizen or if the children do not possess or acquire any other nationality.23 (Here, we encounter a mix of the principles jus sanguinis and jus soli.) In other related cases acquisition of nationality may be linked to an express application of the individual following a five or ten year period of lawful residence.24 According to common traditions, the acquisition of nationality should be facilitated for spouses, born or adopted children and stable, habitual residents.25 The loss of nationality can take place either ex lege or based on the individual’s request. Ex lege loss cases – stipulated in an exhaustive list with no possible reservations thereto26 – embrace either reasons linked to the individual’s attitude considered to be questionable or condemnable from the point of view of ‘loyalty’27 or reasons substantiating the obsoleteness of the institution.28

23 24 25 26

1997 CoE Convention Arts. 6(1) a, b, 6(2) a. 1997 CoE Convention Arts. 6(2) b, 6(3). 1997 CoE Convention Arts. 6(4) a-g. See also: L. Pilgrim, ‘International Law and European Nationality Laws’, Eudo Citizenship Observatory, Robert Schuman Centre for Advanced Studies in collaboration with Edinburgh University Law School, March 2011, p. 14. 27 1997 CoE Convention Art. 7(1): ‘a. voluntary acquisition of another nationality; b. acquisition of the nationality of the State Party by means of fraudulent conduct, false information or concealment of any relevant fact attributable to the applicant; c. voluntary service in a foreign military force; d. conduct seriously prejudicial to the vital interests of the State Party;’ 28 CoE Convention of 1997, Art. 7(1): ‘e. lack of a genuine link between the State Party and a national habitually residing abroad; f. where it is established during the minority of a child that the preconditions laid down by internal law which led to the ex lege acquisition of the nationality of the State Party are no longer fulfilled; g. adoption of a child if the child acquires or possesses the foreign nationality of one or both of the adopting parents.’

8

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The Background and the Functions of the European Convention on Nationality

As van Eijken points out ‘the decision to revoke nationality is not solely within the sovereignty of Member States, but finds its limits in international law norms in the form of treaties or customary law.’29 Why are the voluntary acquisition of another nationality and the voluntary service in a foreign military force listed among the reasons for the ex lege loss of nationality? The voluntary acquisition of another nationality was conceived as a situation leading to the compulsory revocation of citizenship in the Convention of 1963, while according to the Convention of 1997 this is only an option.30 The explanatory report fails to clarify the motivation, it refers only to the ‘voluntary’ character of the acquisition i.e. the individual’s free will.31 (Although there is a cross reference to Article 132 of the Convention of 1963, we cannot truly identify all the details of the original will of the treaty makers in lack of a proper explanatory report attached to said Convention. It must be noted however, that the Convention of 1930 contains a slightly similar wording, albeit only in the context of expatriation.33) The same voluntary character is emphasized in case of military service effectuated in the army of state B while the individual is still the citizen of state A. The fact that the explanatory report of the Convention of 1997 underlines that – instead of prescribing an objective obligation – a State may decide whether or not to revoke citizenship34 gives to understand that the voluntary individual act may somehow hurt the national pride of the state moving it to react in such a way. Does such a voluntary act however constitute an effective threat to the state’s supreme interests? It cannot be said that this follows from Article 7 (1)a, as a special disposition was enshrined in Article 7(1)d foreseeing a ‘conduct seriously prejudicial to the vital interests of the State Party.’35

29 H. van Eijken, ‘European Citizenship and the Competence of Member States to Grant and to Withdraw the Nationality of Their Nationals’, 27(72) Merkourios, Criminal Justice and Human Rights (2010), p. 68. 30 See in this sense the § 60 of the Explanatory report. 31 Idem. 32 1963 CoE Convention Art. 1: ‘(1) Nationals of the Contracting Parties who are of full age and who acquire of their own free will, by means of naturalisation, option or recovery, the nationality of another Party shall lose their former nationality. They shall not be authorised to retain their former nationality.’ 33 1930 LoN Convention Art. 7: ‘In so far as the law of a State provides for the issue of an expatriation permit, such a permit shall not entail the loss of the nationality of the State which issues it, unless the person to whom it is issued possesses another nationality or unless and until he acquires another nationality. […] The State whose nationality is acquired by a person to whom an expatriation permit has been issued, shall notify such acquisition to the State which has issued the permit.’ 34 See in this sense the § 58, 59, 66 of the Explanatory report. 35 See § 67 of the Explanatory report: ‘The wording “conduct seriously prejudicial to the vital interests of the State Party” is drawn from Article 8, Paragraph 3.a.ii of the 1961 Convention on the Reduction of Statelessness. Such conduct notably includes treason and other activities directed against the vital interests of the State concerned (for example work for a foreign secret service) but would not include criminal offences of a general nature, however serious they might be.’

9

Péter Kovács

Moreover, bilateral or multilateral international conventions may induce the state to accept several types of foreign military services without ‘retaliating’.36 So what can be the reason for the loss of citizenship in case of a voluntary acquisition of a second nationality and under which conditions is the state entitled to benefit from this prerogative? As referred to in a footnote supra, a textual importation from another convention, namely the 1961 UN Convention on the Reduction of Statelessness took place. The explanatory report attests it expressis verbis only vis-à-vis the ‘conduct seriously prejudicial to the vital interests of the State Party.’37 It is worth noting that one of the subsequent examples of the 1961 UN Convention can however be invoked as interfering with the voluntary acquisition of a new citizenship, namely ‘that the person has taken an oath, or made a formal declaration of allegiance to another State.’38 As known from state practice, the wilfull acquisition of a citizenship is generally linked to special, final, solemn steps where taking an ‘oath’ has both symbolic and legal importance. Inherited from the antiquity and medieval royal traditions, swearing fidelity constitutes an element of the oath. Nevertheless, the material content of the oath should fit current European legal standards and an a priori required loyalty should not be exaggerated. As Rainer Bauböck and Bernhard Perchinig emphasize: We have no normative objections to a declaration or an oath of loyalty to the legal order of the state granting naturalisation. Although native-born citizens do not have to pledge such allegiance unless they are sworn in for high public office, a democracy may require that newcomers who have had previous commitments to another state should express their loyalty in this particular way. The content of such oaths or declarations should, however, be confined to respect for the constitution and the legal order. It should include neither renouncing allegiances to other states (since this would implicitly rule out 36 See § 65 of the Explanatory report: ‘However, participation in a multilateral force on behalf of the State of which the person concerned is a national cannot be considered as service in a foreign military force. Furthermore, voluntary military service in another country, in accordance with a bilateral or multilateral Convention, is also not covered by this provision.’ 37 See the Convention on the Reduction of Statelessness, New York, 30 August 1961 (infra: UN Convention of 1961) Art. 8(3): ‘Notwithstanding the provisions of Paragraph 1 of this article, a Contracting State may retain the right to deprive a person of his nationality, if at the time of signature, ratification or accession it specifies its retention of such right on one or more of the following grounds, being grounds existing in its national law at that time: (a) that, inconsistently with his duty of loyalty to the Contracting State, the person (i) has, in disregard of an express prohibition by the Contracting State rendered or continued to render services to, or received or continued to receive emoluments from, another State, or (ii) has conducted himself in a manner seriously prejudicial to the vital interests of the State;’ (emphasis added). 38 See the 1961 UN Convention Art. 8(3) b.

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The Background and the Functions of the European Convention on Nationality

multiple nationality) nor a list of values that may support the democratic institutions but need not necessarily be shared by all citizens.39 In 1961, where the period of the devastating nazi expansionism and the Komintern had not long passed, such a rule was not surprising. (It should be pointed out however, that even the 1961 Convention refers to the maintenance – but not the introduction – of such a sanction in nationality law40 which had also to offer a fair trial.41) In the well established democracies of the second half of the XXth century and today’s Europe that had overcome the East-West confrontation, bringing with it the enlargement of the NATO and the European Union, these historically rooted fears no longer persist. Nevertheless, a few European countries remain rather hostile to double nationality not wanting to share the citizen’s fidelity. (While some states abolish42 this rule, other states maintain43 or introduce44 it.) Current international law does not consider this constitutional perception as a violation of international commitments. The question arises, however, whether there is an option (a facultas alternativa) or contradiction hidden in the text. If the acquisition of the new (second) nationality of country B and the underlying national legislation seem to run against ‘applicable international conventions, customary international law and the principles of law generally recognised’, is the first country (country A, the country of current citizenship) free to refuse it? If country A does not accept it and thus the new citizenship is not recognized, this means that the acquisition cannot produce effects vis-à-vis country A, i.e. it is non-existens and so it does not truly justify the revocation of the citizenship.

39 R. Bauböck and B. Perchinig, ‘Evaluation and Recommendations’, in R. Bauböck et al. (Eds.), Acquistion and Loss of Nationality – Policies and Trends in 15 European States – Summary and Recommendations, Results of the EU-Project: The Acquisition of Nationality in EU Member States: Rules, Practices and Quantitative Developments (NATAC), January 2006, Institute for European Integration Research, Austrian Academy of Sciences, Vienna, pp. 45-46. 40 See the introductory sentence of 1961 UN Convention Art. 8(3). 41 See 1961 UN Convention Art. 8(4) ‘A Contracting State shall not exercise a power of deprivation permitted by Paras. 2 or 3 of this article except in accordance with law, which shall provide for the person concerned the right to a fair hearing by a court or other independent body.’ It has to be underlined that the fair trial principle is indirectly also expected according to Art. 4/c of the Convention of 1997 stipulating that: ‘no one shall be arbitrarily deprived of his or her nationality;’. 42 ‘Sweden and Finland abolished the corresponding provision within the past five years and Austria, the Netherlands and Spain have introduced extended possibilities for retention of nationality for certain groups of nationals in cases where naturalisation takes place abroad. The main counter-example is Germany which, in 2000, abolished the rule that nationality is not lost if a foreign nationality is acquired, but residence in Germany is maintained.’ R. Bauböck et al., ‘Executive Summary’, in R. Bauböck et al., op. cit. p. 7 (http://diversity.commedia.net.gr/files/studies/meletes/NATAC_recommendations.pdf). 43 Ukraine. 44 Slovakia, since 2010.

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Péter Kovács

If however country A does not consider the nationality legislation of country B to be a violation of ‘applicable international conventions, customary international law and the principles of law generally recognised’ why does it react in such a strict and selfish manner? Is this only due to historical, constitutional traditions or is is based on an evident, legitimate fear? Moreover, one may raise the question whether the attitude of country A may be different depending on whether the second citizenship is that of country B, C or D. In case the answer is yes – should the underlying motivation of country A be made public in the given case? It is worth pointing out that in case the attitude of country A to the acquisition of a second nationality differs depending on the second country of citizenship, this is probably not based on evident national constitutional traditions but on a pragmatic, purely political decision. (This consideration may be lawful and politically correct in itself, in case it is substantiated by proper argumentation…). The wording and the explanatory report of the Convention do not provide a clear answer to this hypothetical dilemma. Moreover, the Convention of 1997 prescribes that States ‘shall permit the renunciation of its nationality provided the persons concerned do not thereby become stateless’45 and that the states of habitual residence facilitate the recovery of their own former nationality.46 The rules on the applicable procedure put emphasis on fairness and the right of review47 but according to the Explanatory report, the ex lege acquisition and loss do not necessarily require a precise written reasoning.48 As far as multiple nationality is concerned, the Convention obliges contracting parties to allow children possessing different nationalities acquired automatically at birth to retain

45 1997 CoE Convention Art. 8(1). 46 1997 CoE Convention Art. 9: ‘Each State Party shall facilitate, in the cases and under the conditions provided for by its internal law, the recovery of its nationality by former nationals who are lawfully and habitually resident on its territory.’ 47 1997 CoE Convention Art. 11: ‘Each State Party shall ensure that decisions relating to the acquisition, retention, loss, recovery or certification of its nationality contain reasons in writing.’ Art. 12: ‘Each State Party shall ensure that decisions relating to the acquisition, retention, loss, recovery or certification of its nationality be open to an administrative or judicial review in conformity with its internal law.’ 48 See an important exception concerning the ex lege issues in §§ 86-87 of the Explanatory report: § 86 ‘All decisions relating to nationality, and not just those following an application, must contain reasons in writing. As a minimum, legal and factual reasons need to be given. However, the mere registration of cases of ex lege acquisition and loss of nationality do not require reasons to be given in writing. […]’ § 87: ‘In addition, all decisions must be subject to an administrative or judicial review. On the basis of this provision individuals must enjoy a right of appeal against decisions relating to nationality. The procedural aspects of the implementation of this right are left to the internal law of each State Party. […] The general recognition of the right to appeal has indeed been estimated to be of prominent importance.’

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The Background and the Functions of the European Convention on Nationality

these nationalities,49 as well as nationals to possess another nationality in case the other nationality was acquired automatically by marriage.50 Multiple nationals shall have the same rights and duties on the territory of the State as those who possess only the citizenship of the State of residence51 without prejudice to the traditional rules of diplomatic and consular protection52 and private international law.53 In the context of state succession, the aim is to avoid statelessness, while the applicable rules should be based on a. the genuine and effective link of the person concerned with the State; b. the habitual residence of the person concerned at the time of State succession; c. the will of the person concerned; d. the territorial origin of the person concerned,54 encouraging states to regulate related problems in international treaties.55 According to Kerikmäe: One purpose of the Convention was to develop an exhaustive body of normative rules with regard to the consequences of state succession on nationality. […] The drafting process was complicated due to the divergent domestic legislative attempts of the contracting states. Thus, the final result includes only a framework of principles which allow states to formulate specific and exact rules by themselves.56 Military service is regulated in length, but more or less in accordance with the philosophy of the 1963 Convention,57 granting preference to the country of residence.58 In the chapter devoted to interstate cooperation, the exchange of information is formulated in an optional manner with – contrary to the rule foreseen in the unsuccessfull additional protocol of 1977 – the possibility of avoiding the identification of persons voluntarily acquiring a new nationality.59 49 50 51 52 53 54 55 56 57

1997 CoE Convention Art. 14(1) a. 1997 CoE Convention Art. 14(1) b. 1997 CoE Convention Art. 17(1). 1997 CoE Convention Art. 17(2) a. 1997 CoE Convention Art. 17(2)b. 1997 CoE Convention Art. 18(2). 1997 CoE Convention Art. 19. Kerikmäe: op. cit. p. 28. As § 124 of the Explanatory report puts it ‘Given the general acceptance of the rules contained in Chapter II of the 1963 Convention, they have been taken over, without any substantive changes, in this Convention (Art. 21), together with the provisions of the 1977 Protocol amending the 1963 Convention, which relate to alternative civil service and exemption from military obligations (Art. 22).’ 58 1997 CoE Convention Arts. 21-22. 59 1997 CoE Convention Art. 24: ‘Each State Party may at any time declare that it shall inform any other State Party, having made the same declaration, of the voluntary acquisition of its nationality by nationals of the other State Party, subject to applicable laws concerning data protection. Such a declaration may indicate the conditions under which the State Party will give such information. The declaration may be withdrawn at any time.’ According to § 134

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1.5

Conclusions

Laura van Waas rightly emphasized that ‘without a doubt, in the European regional context, the most significant instrument of international law to place limits on the regulation of nationality by states is the European Convention on Nationality.’60 She adds that ‘the European legal frameworks include several key innovations that really solidify the region’s position at the forefront of international developments in this field.’61 One must not forget however Pilgrims’warning that the well defined ‘exhaustive lists’ deter important European states from joining the Convention.62 She is also correctly points out that there is ‘a more general lesson to be learned about obstacles preventing states from ratifying the ECN, namely that international law on nationality is undergoing a progressive gradual transition from an understanding of citizenship, or naturalisation, as privilege to an understanding of citizenship as right. Whereas the European Convention on Nationality was born out of a ‘rights culture’, not all national Codes have followed suit or, in fact, intend to do so. Many instances of incompatibility between national law and the Convention can thus be traced back to an emerging difference in the understanding of the concept of citizenship that informs individual legal provisions.’63 Finally, I must also draw attention to the fact that the European Convention on Nationality constitutes a cornerstone in the new European legal tendencies of modern citizenship legislation. Its rules reflect the commun standards of States, framed generally much more open to recognizing multiple citizenship than before. On the other hand however, States are still eager to preserve important remnants of their sovereignty and the European Convention on Nationality can coexist with the requirements expressed by the States at the time of signature and ratification.

60 61 62 63

of the Explanatory report the elastic wording is a result of the unsuccess of the corresponding but precise formulation in the Additional protocol of 1977. L. van Waas, ‘Fighting Statelessness and Discriminatory Nationality Laws in Europe’, 14 European Journal of Migration and Law (2012) (http://arno.uvt.nl/show.cgi?fid=128787) p. 245. Waas: op. cit. p. 259. See in this sense: Pilgrim: op. cit. pp. 16-17. Pilgrim: op. cit. p. 16.

14

2

The Right to a Nationality as a Human Right?

Mónika Ganczer*

2.1

Introduction

When interpreting the right to a nationality as a human right, one must take into account that matters of nationality fall within the domestic jurisdiction of states. Although human rights issues were removed from domestic jurisdiction, the right to a nationality as a human right is nevertheless pervaded by that nationality matters form part of the domaine réservé. This clearly manifests itself in the fact that its regulation on the international level reflects the interests of states, and the wording of relevant documents is typically vague and lacking in order to enable states to retain the regulation of nationality as far as possible within their respective domestic spheres. Thus, the right ensured on the international level is frequently rendered meaningless in practice. Divergent interpretations of its content also give rise to problems. It is believed that the right to a nationality should be construed as a right to one nationality, and as such, it includes the prohibition of dual nationality.1 Yet others urge the recognition of dual nationality as a human right.2 Personally, I do not share any of these views. I think that the right to a nationality is primarily meant to eliminate statelessness, since the right was originally created for this objective. The aim of the present study is to provide an overview of international instruments and documents containing the right to a nationality, to unveil the shortcomings of international regulation and to promote a better understanding of this particular right.

2.2

Formulation of the Right to a Nationality

The right to a citizenship as a precursor of the right to a nationality had emerged during the 16th century in a lecture of an outstanding member of the Spanish school of interna-

*

1 2

Research fellow, Hungarian Academy of Sciences, Centre for Social Sciences, Institute for Legal Studies; Assistant professor, Széchenyi István University, Deák Ferenc Faculty of Law and Political Sciences. E-mail: [email protected]. W.L. Griffin, ‘The Right to a Single Nationality’, 40 Temple Law Quarterly (1966), p. 58. P.J. Spiro, ‘Dual Citizenship as a Human Right’, 8(1) International Journal of Constitutional Law (2010), pp. 111-130.

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tional law, Francisco de Vitoria. He boldly claimed that certain persons ‘cannot be excluded’ from citizenship.3 However, the formulation of right to a nationality as a human right only took place in the mid-20th century. This right was first mentioned in a non-binding regional document, the American Declaration on the Rights and Duties of Man.4 The draft of the declaration was negotiated at a conference in Bogotá between 30 March and 2 May in 1948, parallel to the Charter of the Organization of American States, and was adopted on 2 May, eight months before the naissance of the Universal Declaration of Human Rights. The universal protection of the right to a nationality was envisaged by the Universal Declaration of Human Rights,5 adopted on 10 December 1948 by a resolution of the United Nations General Assembly, a non-binding document, which has since become binding as customary international law.6 The drafting process of the Universal declaration of Human Rights was certainly influenced by the American Declaration on the Rights and Duties of Man, which was attached as a background material.7 However, it is worth mentioning that the references to the right to a nationality, the change of nationality as well as to statelessness had already emerged at the beginning of the drafting in 1947.8 The Chilean government presented the draft proposal of the Inter-American Juridical Committee, which included the right to a nationality, the prohibition of deprivation of nationality and the right to change nationality in June 1947.9 Subsequently, René Cassin submitted a detailed proposal containing the right to a nationality and ensuring the elimination of statelessness by member states of the United Nations,10 but the latter was not endorsed for incorporation into the Universal Declaration by other members of the Drafting Committee. In May 1948, India and the United Kingdom proposed an amendment, inter alia, to the article concerning nationality, in which the provision ‘Everyone has the right to a nationality’ was replaced by the phase ‘No one shall be arbitrarily, deprived of

3

F. de Vitoria, ‘De Indis prior Relectio’, in F. de Vitoria (Ed.), Relectiones Theologicae, Manuel Martin, Matriti, 1765, p. 229. 4 American Declaration of the Rights and Duties of Man, O.A.S. Res. III, Ninth International Conference of American States, Bogotá, 2 May 1948. 5 The Universal Declaration of Human Rights, G.A. Res. 217A, 10 December 1948. 6 For more details with regard to Art. 15 see G.G. Schram, ‘Article 15’, in A. Eide et al. (Eds.), The Universal Declaration of Human Rights: A Commentary, Scandinavian University Press, Oslo, 1992, p. 233. 7 American Declaration on the Rights and Duties of Man, Commission on Human Rights, 3rd Session, E/CN.4/122, 10 June 1948. 8 A. Verdoodt, Naissance et signification de la Déclaration Universelle des Droits de l’Homme, E. Warny, Louvain, 1964, pp. 156-157. 9 Commission on Human Rights Drafting Committee, International Bill of Rights, E/CN.4/AC.1/3/Add.1, 11 June 1947. p. 273. 10 Commission on Human Rights, Drafting Committee on an International Bill of Human Rights, First Session, Report of the Drafting Committee to the Commission on Human Rights, E/CN.4/21, 1 July 1947. p. 61.

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The Right to a Nationality as a Human Right?

his nationality.’11 Peng-Chun Chang and Eleanor Roosevelt supported this text and stated that it was more preferable to guard persons against the arbitrary deprivation of nationality than to attempt to provide everyone the right to a nationality. The representative of Uruguay, Roberto Fontaina, concurred and suggested an amendment to the joint proposal by the delegations of India and United Kingdom that the declaration should contain the right to change of nationality similarly to the American Declaration.12 Therefore, the Commission on Human Rights adopted the following text: ‘No one shall be arbitrarily deprived of his nationality or denied the right to change his nationality.’13 Finally, in the course of the debate of the draft declaration in the Third Committee of the UN General Assembly, the right to a nationality was included into the text after the proposal by René Cassin dated 8 October 194814 had been supported by a number of states, particularly by Cuba, Egypt, Lebanon and Uruguay.15 The proponents pointed out that the phrasing of deprivation of nationality was overly negative and the protection of stateless persons should enjoy priority.16

2.3

Protection of Persons by the Right to a Nationality – Alternations in International Documents and Their Interpretations

Nationality matters falling within the domestic jurisdiction of states are limited by international law to such extent only as the state concerned undertakes international obligations pertaining to that matter. Even though nationality is governed in detail by domestic law, the domestic regulation of the right to a nationality is a rare phenomenon. The explicit mentioning of the right to a nationality appears in international documents instead: primarily in human rights documents and, to some extent, in international treaties concerning nationality. The interpretation and thorough analysis of these documents should be based upon a distinction of universal and regional protection of the right at issue.

11 India and the United Kingdom: Proposed Amendments to the Draft Declaration on Human Rights, Commission on Human Rights, 3rd Session, E/CN.4/99, 24 May 1948. p. 4. 12 Commission on Human Rights, Summary Record of the Fifty-Ninth Meeting, E/CN.4/SR.59, 10 June 1948. pp. 6-7. 13 Report of the Third Session of the Commission on Human Rights, E/800, 28 June 1948. p.12. 14 Draft International Declaration of Human Rights. France: Amendments to the Draft Declaration (E/800). Third Committee, 3rd Session, A/C.3/244, 8 October 1948. p. 1. 15 Draft International Declaration of Human Rights. Recapitulation of Amendments to Article 13 of the Draft Declaration (E/800). Third Committee, 3rd Session, A/C.3/286, 18 October 1948. pp. 1-2; Draft International Declaration of Human Rights. Recapitulation of Amendments to Article 13 of the Draft Declaration (E/800). Third Committee, 3rd Session, A/C.3/286/Rev.1, 30 October 1948. pp. 1-2. 16 Verdoodt, 1964, p. 159.

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2.3.1

Universal Protection

The universal protection of the right to a nationality commenced with the adoption of the Universal Declaration of Human Rights. Article 15 provides that everyone has the right to a nationality and states that no one shall be arbitrarily deprived of his or her nationality, nor denied of the right to change his nationality.17 Thus the right to a nationality is guaranteed to a wide group of persons, and the prohibition of arbitrary deprivation offers both protection against statelessness and a possibility to change nationality. Therefore, the Universal Declaration of Human Rights simultaneously recognizes the right to a nationality and the right to change nationality, and the prohibition of arbitrary deprivation of these rights. The formulation of the right to a nationality is vague and scanty, but it obviously strives to provide the right to acquire a nationality to stateless persons. One shortcoming of the text is that it fails to clarify which state has the obligation to grant nationality, and as such, the right to a nationality loses much of its importance. The wording of arbitrary deprivation of nationality and denying the right to change the nationality is equally inappropriate, as the expression ‘arbitrary’ is not defined. In accordance with the first paragraph, every deprivation of nationality that results in statelessness needs to be considered arbitrary, because it would not serve the purposes of the declaration. Furthermore, the right to change nationality needs to be interpreted so that the former state of nationality has an obligation to withdraw its nationality upon a request by a person who acquires another nationality. However, this right may easily become illusory. It cannot provide effective protection, if a person renounces his or her nationality, but is unable to acquire a new nationality. The Declaration on the Rights of the Child of 195918 was also adopted as a resolution of the UN General Assembly, but, unlike the Universal Declaration of Human Rights, it has never gained binding force. Principle 3 of this declaration only offers the ‘child’ the right to a nationality from his or her birth,19 in conformity with the limited scope of the document. At the meeting of the Third Committee of the UN General Assembly on 6 October 1959, Thailand suggested the deletion of this principle from the draft declaration claiming that it raised too many complex legal questions, including the differences between domestic legal systems applying either the principle of ius soli or ius sanguinis, that cannot be resolved by the declaration.20 Later on, this position was modified due to the fundamental importance of the right to a nationality.

17 18 19 20

The Universal Declaration of Human Rights, G.A. Res. 217A, 10 December 1948, Art. 15. Declaration on the Rights of the Child, G.A. Res. 1386, 20 November 1959. Id., Principle 3. See G. Van Bueren, The International Law on the Rights of the Child, Kluwer Law International, The Hague, 1998, p. 366. See the remarks of Mr. Suphamonghon, the representative of Thailand. P.E. Veerman, The Rights of the Child and the Changing Image of Childhood, Martinus Nijhoff Publishers, Dordrecht & Boston, 1992, p. 171.

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The Right to a Nationality as a Human Right?

The Convention on the Reduction of Statelessness of 196121 does not contain the right to a nationality. Nevertheless, Article 8, paragraph 1, prohibits the deprivation of nationality. Hence states may not deprive anyone of his or her nationality if such deprivation would render him or her stateless – save for a few exceptions.22 Remarkably, the draft convention had envisaged a general prohibition of deprivation, but during the debates states pressed the inclusion of several exceptions into the final text, which substantially weakened the prohibition. Still, there are important guarantees, namely that the exceptions can only be exercised in accordance with law, and states must provide the right to a fair hearing by a court or other independent body.23 The International Covenant on Civil and Political Rights of 196624 does not contain the right to a nationality in general. Article 24, paragraph 3, only provides for the right to acquire a nationality, and only provides it to children.25 States agreed that every effort should be made to prevent the statelessness of children at the 17th and 18th meetings of the Third Committee of the UN General Assembly.26 This obviously represents a step back as compared to the Declaration on the Rights of the Child. While the declaration includes the right to a nationality of the child in general terms, the covenant only ensures the right to acquire a nationality – it does not offer protection against the loss of nationality. The drafters of the covenant believed that the taking over of the relevant principle from the Declaration on the Rights of the Child would not have been supported by states, as – as they claimed – it would have obliged states to grant nationality to children born in their territory.27 Nonetheless, this obligation would not exist even if the declaration was interpreted broadly. The Commission of Human Rights interpreted similarly the article and stated that Article 24, paragraph 3, of the covenant merely requires states to ‘adopt every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when he is born.’28 The Commission on Human Rights also pointed out that the purpose of this article ‘is to prevent a child from being afforded less protection by society and the State because he or she is stateless, rather than to afford an entitlement to a nationality of one’s own choice.’29 For that reason the body did not consider

21 22 23 24 25 26 27

1961 Convention on the Reduction of Statelessness, 989 UNTS 175. Id., Art. 8, Paras. 1-3. Id., Art. 8, Para. 4. 1966 International Covenant on Civil and Political Rights, 999 UNTS 171. Id., Art. 24, Para. 3. See A/C.3/SR.1172, A/C.3/SR.1177. See J.E. Doek, ‘The CRC and the Right to Acquire and to Preserve a Nationality’, 25(3) Refugee Survey Quarterly (2006), p. 26. 28 See Human Rights Committee (35th session, 1989), General Comment 17, Article 24 Rights of the Child, Para. 8. 29 Human Rights Committee, Communication No. 1134/2002, Fongum Gorji-Dinka v. Cameroon, UN Doc. CCPR/C/83/D/1134/2002 (2005), Para. 4.10.

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Mónika Ganczer

demands by persons possessing a nationality to acquire a new nationality substantiated under Article 24, paragraph 3, on several occasions.30 Similarly to the Universal Declaration of Human Rights, the covenant fails to clarify which state specifically bears the responsibility to provide nationality. Therefore, it may not be claimed that it is the obligation of the state of birth to do so.31 Besides, the provision does not concern cases of change or loss of nationality, even if persons indeed of protection happen to be children.32 The Declaration on Social and Legal Principles relating to the Protection and Welfare of Children of 1986,33 being a General Assembly resolution, is merely a recommendation. Article 8 of the declaration requires that ‘[t]he child should at all times have […] a nationality’.34 In keeping with the Declaration of the Rights of the Child, the document involves the recognition of the right to acquire a nationality and the elimination of statelessness caused by the loss of nationality. It also prohibits the deprivation of nationality of children, except for cases when they acquire a new nationality. In other words, the declaration expressly acknowledges that children may be deprived of their previous nationality upon becoming a dual or multiple national. Article 7 of the Convention on the Rights of the Child of 1989,35 a human rights instrument with the highest number of states parties, stipulates that ‘[t]he child shall be registered immediately after birth and shall have […] the right to acquire a nationality’. The convention further requires that states ‘shall ensure the implementation of these rights’ and the implementation needs to be ‘in accordance with their national law and their obligations under the relevant international instruments in this field in particular where the child would otherwise be stateless’.36 Suffice it to note that this was the first human rights document to pay special attention to statelessness. The registration of children is usually a key element for the acquisition of nationality, thus the Committee on the Rights of the Child emphasised that states should make every necessary effort to register children after birth.37 The article reveals that states have a sovereign right to determine the conditions

30 Id., Human Rights Committee, Communication No. 820/1998, Mr. Keshva Rajan and Mrs. Sashi Kantra Rajan v. New Zealand, UN Doc. CCPR/C/78/D/820/1998 (2003), Para. 7.5. 31 See e.g. J.L. Blackman, ‘State Successions and Statelessness: The Emerging Rights to an Effective Nationality under International Law’, 19(3) Michigan Journal of International Law (1998), p. 1172; J.M.M. Chan, ‘The Right to a Nationality as a Human Right. The Current Trend Towards Recognition’, 12(1-2) Human Rights Law Journal (1991), p. 5. 32 See J. Crawford, ‘Territorial Change and the Status of Inhabitants’, XXVII(1) Seoul Law Journal (1986), pp. 48-49. 33 Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, G.A. Res. 41/85, 3 December 1986. 34 Id., Art. 8. 35 1989 Convention on the Rights of the Child, New York, 1577 UNTS 3. 36 Id., Art. 7. 37 See Doek, 2006, p. 27.

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The Right to a Nationality as a Human Right?

for the acquisition and loss of nationality, but states are limited by the international obligations undertaken concerning nationality including the enforcement of the requirement to eliminate the occurrence of statelessness.38 Hence, Article 7 does not prescribe the application of ius soli principle, but states parties shall provide the acquisition of nationality for children, in particular where they would otherwise be stateless, according to their relevant international obligations including the Convention on the Reduction of Statelessness of 1961.39 In addition, Article 8 of the convention obliges states to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. This right is safeguarded by the requirement that states parties must provide appropriate assistance and protection, with a view to speedily re-establish the identity of the child, if he or she is illegally deprived of some or all of the elements of his or her identity. The right to retain nationality offers protection against statelessness in lieu of the prohibition of arbitrary deprivation, albeit in a weaker fashion, as the obligation of states to take appropriate measures in cases of illegal deprivation is not sufficiently specified. Article 8 further implies that when his or her parents lose their nationality due to of a legal provision, an administrative act or any other reason, the child does not automatically lose his or her nationality, and may retain that, particularly if he or she would otherwise become stateless.40 The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families of 199041 contains the right to a nationality in general terms, but only for a special group of subjects. In keeping with the limited scope of the convention, Article 29 recognizes the right to a nationality of children of migrant workers in much the same spirit as the Universal Declaration of Human Rights provides that right to ‘everyone’. The requirement of registration too affords protection to the child, similarly to the analogous stipulations of other instruments.42 The Convention on the Rights of Persons with Disabilities of 200643 follows the pattern of Article 7 of the Convention on the Rights of the Child, when it recognizes the right to a nationality. As a result of the specialized nature of the convention, the bearers of that right under Article 18, paragraph 2, are children with disabilities, to whom the instruments

38 See I. Ziemele, State Continuity and Nationality: The Baltic States and Russia: Past Present and Future as Defined by International Law, Martinus Nijhoff Publishers, Leiden & Boston, 2000, p. 283. 39 More detailed see S. Detrick, A Commentary on the United Nations Convention on the Rights of the Child, Martinus Nijhoff Publishers, The Hague, London, 1999, pp. 150-152. 40 See Doek, 2006, p. 30. 41 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 2220 UNTS 3. 42 Id., Art. 29. 43 2006 Convention on the Rights of Persons with Disabilities, 2515 UNTS 3.

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Mónika Ganczer offers registration and acquisition of a nationality.44 The requirement of registration is phrased similarly to its earlier counterpart. The instrument also resembles the Convention on the Rights of the Child in that it only lays down the right to acquire a nationality.

2.3.2

Regional Protection

In Europe, the Convention for the Protection of Human Rights and Fundamental Freedoms of 195045 contains neither the right to a nationality nor the prohibition of arbitrary deprivation of nationality. However, nearly four decades later, in April 1988, the Committee of Experts for the Development of Human Rights examined of the feasibility of incorporation of the right to a nationality into the convention by way of a questionnaire46 addressed to states parties. The survey revealed that European states had similar positions. There was widespread agreement that the draft should include the following elements: everyone has a right to a nationality; everyone has a right to acquire the nationality of the state in whose territory he or she was born, if he or she would otherwise become stateless; and no one can be arbitrarily deprived of his or her nationality or the right to change nationality.47 Although the envisaged regulation mostly conforms the prevailing domestic regulations of European states, there has not been any progress in the drafting of such a protocol to the convention since 1989. It appears that states are reluctant to extend the supervisory role of the European Court of Human Rights to matters of nationality. The case-law of the court indicates that the judicial organ seeks to provide protection to individuals against the consequences of statelessness by invoking the right to respect for private and family life as enshrined in Article 8 of the convention.48 The respect for 44 Id., Art. 18, Para. 2. 45 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221. 46 Five main questions were raised for states in the questionnaire made by the Committee of Experts for the Development of Human Rights: 1. Is every stateless person born in the country entitled to acquire its nationality? 2. Is every person entitled to change his or her nationality? 3. Can any person be arbitrarily deprived of his or her nationality? 4. To what extent does a stateless adult have a right to acquire the nationality of the given state? What are the reasons not to ratify, inter alia, the United Nations Convention on the Reduction of Statelessness and, for those countries that have ratified them, have they encountered any difficulties in implementing these conventions? See Chan, 1991, p. 7. 47 For more see Chan, 1991, pp. 7-10. 48 Several documents include the protection of private and family life and the prohibition of interference with the privacy or the family of the individual. At the same time, most of these documents contain the right to a nationality; therefore, an interpretation similar to the case-law of the European Court of Human Rights is hardly conceivable. See e.g. The Universal Declaration of Human Rights, G.A. Res. 217A, 10 December 1948, Art. 16, Para. 3; 1966 International Covenant on Civil and Political Rights, 999 UNTS 171, Art. 17, Art. 23, Para. 1; 1989 Convention on the Rights of the Child, 1577 UNTS 3, Art. 8, Para. 1, Art. 16; 1969 American Convention on Human Rights, 1144 UNTS 123, Art. 17, Para. 1; African Charter on the Rights and Welfare of the Child, Addis Ababa, 11 July 1990, OAU Doc. CAB/LEG/24.9/49 (1990), Art. 10. Similarly to the European Convention on Human Rights, certain documents do not contain the right to a nationality, and include the protection of family life only. See 1966 International Covenant on Economic, Social and

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private and family life was first associated with the issues of statelessness in 1997. Even the European Commission of Human Rights had pointed out in a report that, notwithstanding the absence of the right to a nationality from the convention, statelessness, at least to some extent, affects and perturbs the private and family life of the individual.49 The European Convention on Nationality, which was concluded in the same year, recalled Article 8 in its preamble in the following manner: ‘[a]ware of the right to respect for family life as contained in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms’.50 This reference also suggests the applicability of the said article in relation to statelessness. Two years later, the European Court of Human Rights remarked that [a]lthough right to a citizenship is not as such guaranteed by the Convention or its Protocols […], the Court does not exclude that an arbitrary denial of a citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual […].51 Hence an arbitrary deprivation of nationality may result in a violation of the right to respect for private and family life as provided for in the convention,52 but it should be emphasized that such a violation can occur only if the consequences of deprivation affect the life of the individual. The court subsequently reaffirmed this dictum,53 often with regard to persons, who had been rendered stateless by state succession.54 In these cases the individuals had spent most of their lives in the given territory, developed personal, social, cultural, linguistic,

49 50

51 52

53

54

Cultural Rights, 993 UNTS 3, Art. 10; 1981 African Charter on Human and Peoples’ Rights, 1520 UNTS 217, Art. 18. Kafkasli contre la Turquie, Appl. No. 21106/92, Report of the European Commission of Human Rights, 1 July 1997, Para. 33. 1997 European Convention on Nationality, 2135 UNTS 213. A reference to its effect on the interpretation of the convention see T. Kerikmäe, ‘European Convention on Nationality and States’ Competence: The Issue of Human Rights’, II Juridica International (Law Review – University of Tartu) (1997), p. 26. Karassev v. Finland, ECHR, Appl. No. 31414/96, Decision as to the admissibility of 12 January 1999, Part The Law, Para. 1.b). A. Komanovics, ‘State Succession, Nationality, and Human Rights. Application of Article 8 of the European Convention on Human Rights to Nationality Issues’, in R.I. Motica et al. (Eds.), Biennal International Conference, Timişoara, Universul Juridic, Bucureşti, 2011, p. 831. Slivenko and Others v. Latvia, ECHR, Appl. No. 48321/99, Decision as to the admissibility of 12 January 1999, Para. 77; Kuduzović v. Slovenia, ECHR, Appl. No. 60723/00, Decision as to the admissibility of 17 March 2005, Part The Law, Para. 2; Kurić and Others v. Slovenia, ECHR, Appl. No. 26828/06, Chamber Judgment of 13 July 2010, Para. 353. For a detailed analysis of Slivenko and Others v. Latvia and Kurić and Others v. Slovenia see Komanovics, 2011, pp. 824-831. Kuduzović v. Slovenia, ECHR, Appl. No. 60723/00, Decision as to the admissibility of 17 March 2005, Part The Law, Para. 2; Kurić and Others v. Slovenia, ECHR, Appl. No. 26828/06, Chamber Judgment of 13 July 2010, Para. 353.

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economic bonds, established families, and their children had already been born in that territory.55 As regards the emergence of the so-called ‘erased’ persons in the wake of postsuccession legislative measures in Slovenia, the court found that these measures had not been in conformity with Article 8, particularly in those instances, when they caused statelessness.56 Upon the determination of a violation of Article 8, the court also recalled the norms of international law, which call for the elimination of statelessness in cases of state succession.57 The court refrained in these cases from expressly recognizing the right to a nationality of the persons concerned (surely it could not have done that), but extended the right to respect for private and family life to persons, who had become stateless or foreigners as a result of state succession with a view to protect them from adverse consequences, such as expulsion.58 The settlement of the status of such persons in conformity with Article 8 might as well enable them to acquire nationality by ordinary or preferential naturalization. Three important treaties on nationality in the European continent have, to some extent, remedied this shortcoming. The Convention to Reduce the Number of Cases of Statelessness, concluded in Bern, in 1973,59 under the aegis of the International Commission on Civil Status, an inter-governmental organization, stipulates in Article 1 that ‘[a] child whose mother holds the nationality of a Contracting State shall acquire that nationality at birth if he or she would otherwise have been stateless’. This content of this provision is closely related to human rights instruments, and though it does not use the term ‘right’, it clearly recognizes the right to a nationality of the child. Similarly to the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, this convention does not make mention of the change or retaining of nationality either. Furthermore, the quoted provision fails to embrace children, whose mothers are stateless at the time of birth. The European Convention on Nationality of 1997,60 adopted by the Council of Europe, guarantees – similarly to the Universal Declaration of Human Rights – in Article 4, among 55 Kurić and Others v. Slovenia, ECHR (2012) Appl. No. 26828/06, Grand Chamber Judgment of 26 July 2012, Para. 336; Slivenko v. Latvia, ECHR (2003) Appl. No. 48321/99, Grand Chamber Judgment of 9 October 2003, Para. 96. 56 Kurić and Others v. Slovenia, ECHR (2012) Appl. No. 26828/06, Grand Chamber Judgment of 26 July 2012, Paras. 337, 359. 57 Kurić and Others v. Slovenia, ECHR (2010) Appl. No. 26828/06, Chamber Judgment of 13 July 2010, Para. 376; Kurić and Others v. Slovenia, ECHR (2012) Appl. No. 26828/06, Grand Chamber Judgment of 26 July 2012, Para. 338. 58 In certain cases, the status of stateless individuals was settled, and their expulsion was avoided. See Sisojeva and Others v. Latvia, ECHR (2007) Appl. No. 60654/00, Grand Chamber Judgment of 15 January 2007; Kaftailova v. Latvia, ECHR (2007) Appl. No. 59643/00, Grand Chamber Judgment of 7 December 2007; Shevanova v. Latvia, ECHR (2007) Appl. No. 58822/00, Grand Chamber Judgment of 7 December 2007. 59 Bern Convention of the International Commission of Civil Status to Reduce the Number of Cases of Statelessness, Bern, 13 September 1973. 60 1997 European Convention on Nationality, 2135 UNTS 213.

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the principles concerning nationality, the right to a nationality, according to which ‘everyone has the right to a nationality’. Principles in the convention includes the avoidance of statelessness and the prohibition of arbitrary deprivation of nationality, as well. Nevertheless, the convention permits states to decide on the loss of nationality in cases of voluntary acquisition of another nationality, unless the person concerned would otherwise be stateless. The preamble and the commentary of the Council of Europe Convention on the Avoidance of Statelessness in relation to State Succession of 200661 both recall the right to a nationality as contained in the Universal Declaration of Human Rights and the European Convention on Nationality. The convention recognizes the right to a nationality in cases of state succession only. Article 2 ensures that individuals having the nationality of the predecessor state at the time of the State succession ‘ha[ve] the right to the nationality of a State concerned’, if they have or would become stateless as a result of the State succession. The provision reveals that the aim of the convention is to eliminate statelessness caused by state succession, and does not affect cases of statelessness already existing in the predecessor state. In the American continent the American Declaration of the Rights and Duties of Man of 194862 is a non-binding document,63 which, as has been mentioned, was adopted eight months before the Universal Declaration of Human Rights. According to Article XIX, ‘[e]very person has the right to the nationality to which he is entitled by law and to change it’ and ‘if he so wishes, for the nationality of any other country that is willing to grant it to him’. As it has been adequately claimed, this article offers nothing else than persons should possess a nationality under any domestic law,64 and as such, it only lays down the right to acquire and change nationality as prescribed by law.65 However, the Inter-American Commission on Human Rights stated that the deprivation of nationality during war is an unwarranted punishment, and violates Article 19.66 The American Convention on Human Rights of 196967 was the first to spell out, upon recognizing the right to a nationality, which state is ultimately responsible to provide nationality to avoid statelessness. Nationality matters are regulated by Article 20 of the

61 2006 Council of Europe Convention on the Avoidance of Statelessness in relation to State Succession, 2650 UNTS 305. 62 American Declaration of the Rights and Duties of Man, O.A.S. Res. III, Ninth International Conference of American States, Bogotá, 2 May 1948. 63 On the legal status of the document, see T. Buergenthal, ‘The Revised OAS Charter and the Protection of Human Rights’, 69(4) American Journal of International Law (1975), pp. 828-836. 64 See e.g. P. Sieghart, The International Law of Human Rights, Clarendon Press, Oxford, 1984, p. 260. 65 For a similar formula see ASEAN Human Rights Declaration, Phnom Penh, 18 November 2012. 66 See Inter-American Commission on Human Rights, Third Report on the Situation of Human Rights in Chile, OEA/Ser.L/V/II.40, Doc. 10. 1977. pp. 33-34. 67 1969 American Convention on Human Rights, 1144 UNTS 123.

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Mónika Ganczer convention.68 Paragraph 1, granting the right to a nationality for everyone, and paragraph 3, prohibiting the arbitrary deprivation of nationality or the right to change nationality echo the wording of the Universal Declaration of Human Rights. Paragraph 2 declares the right of every person to the nationality of the state in whose territory he or she was born, if he or she is not entitled to any other nationality. This provision is at times recalled as an instrument of the elimination of statelessness evolving at birth,69 but it should be noted that it also protects persons, who subsequently become stateless by obliging, as a last resort, the state of birth to provide nationality. However, it is worth mentioning that Article 20 does not protect stateless individuals whose place of birth is unknown. For example, the place of birth of a foundling is not to be automatically presumed to be in the state, where he or she was found. The African Charter on the Rights and Welfare of the Child of 199070 also contains a clear obligation to provide nationality, along with the designation of state which is ultimately obliged to do so in order to avoid the statelessness of the child. According to Article 6 of the charter ‘[e]very child shall be registered immediately after birth’ and ‘[e]very child has the right to acquire nationality’. The necessity of registration of children is too regulated by the Article 7, paragraph 1, of the Convention of the Rights of the Child, with the difference that it does not contain the condition ‘immediately’. The importance of registration and the ‘strong and direct link between birth registration and nationality’ was highlighted by the African Committee of Experts on the Rights and Welfare of the Child,71 as children may become stateless without birth registration, if their place of birth or descent cannot be proven. Besides, the Committee stated that the requirement of birth registration in the charter ‘is not only limited to passing laws (and policies), […] but also extends to addressing all de facto limitations and obstacles to birth registration’.72 The charter restricts the scope of the right to a nationality to children and to the acquisition of a nationality. The right of the child to acquire a nationality reflects the provisions of Article 24, paragraph 3, of the International Covenant on Civil and Political Rights and Article 7, paragraph 1, of the Convention on the Rights of the Child. The expression ‘from his birth’ is not added to the right to acquire a nationality, but the African 68 See e.g. the violation of the right to a nationality and the prohibition of arbitrary deprivation of nationality Baruch Ivcher Bronstein v. Peru, Inter-American Court of Human Rights, Judgment of 6 February 2001, Paras. 95-97. 69 R. Donner, The Regulation of Nationality in International Law, Transnational Publishers, Inc., New York, 1994, p. 230. 70 African Charter on the Rights and Welfare of the Child, Addis Ababa, 11 July 1990, OAU Doc. CAB/LEG/24.9/49 (1990). 71 African Committee of Experts on the Rights and Welfare of the Child, Communication No. Com/002/2009, Institute for Human Rights and Development in Africa (IHRDA) and Open Society Justice Initiative on Behalf of Children of Nubian Descentin Kenya v. The Government of Kenya, Decision of 22 March 2011, No. 002/Com/002/2009, Paras. 38, 42. 72 Id., Para. 40.

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Committee of Experts on the Rights and Welfare of the Child declared that ‘as much as possible, children should have a nationality beginning from birth’, as the purpose of Article 6 is to prevent and reduce statelessness, and the ensuring of acquisition of nationality upon application after reaching eighteen years of age, cannot be seen as an effort to comply with the obligation indicated in the provision.73 Article 6, paragraph 4, of the charter is particularly important, which – similarly to Article 20, paragraph 4, of the American Convention on Human Rights – provides, as a last resort, the right to a nationality on the basis of the ius soli principle to eliminate statelessness. Nevertheless, it has a more restricted scope than the convention, as the bearer of the right is the child – in conformity with the subject-matter of the charter – and the ensured right is the right to acquire a nationality. But the charter goes beyond the American Convention on Human Rights by setting out additional obligations for states in order to ensure that right. It is also worth mentioning that the right to acquire a nationality provided on the basis of the ius soli principle does not imply the obligation to generally apply this principle. The principle needs to be applied, if the child born in the territory is not able to acquire another nationality, and would otherwise be stateless.74 Remarkably, states undertake to ensure that their constitutional legislation recognizes this principle. According to the interpretation by the African Committee of Experts on the Rights and Welfare of the Child, the phrase ‘undertake to ensure’ implies an obligation of result, that is, states need to take all necessary measures to prevent the child from becoming stateless.75 Thus, the charter is unique among human rights documents, as it prescribes the application of the ius soli principle, as a last resort, to avoid statelessness, and spells out further obligations for states to implement it. A resolution of the Conference on Security and Co-operation in Europe,76 adopted at a meeting in July 1992 as a soft law document, likewise contains the right to a nationality and the prohibition of arbitrary deprivation,77 similarly to the Universal Declaration of Human Rights. It requires states to govern all aspects of nationality by the process of law, and to take all appropriate measures not to increase statelessness. Measures taken by states should be ‘consistent with their constitutional framework’, which slightly weakens the requirement. It should be noted that this resolution is a political undertaking of the fiftytwo states participating at the summit, which was attended – among others – by the successor states of the Soviet Union.78 73 74 75 76

Id., Paras. 42, 44. Id., Paras. 50-51. Id., Para. 52. The name of the Conference on Security and Co-operation in Europe (CSCE) was changed to Organization for Security and Co-operation in Europe (OSCE) at its summit in Budapest, in December 1994. Budapest Summit Declaration. Towards a Genuine Partnership in a New Era, Budapest, 6 December 1994, Para. 3. 77 Declaration and Decisions from the Helsinki Summit, Helsinki, 10 July 1992, Part VI, Paras. 55-57. 78 For more see Donner 1994, p. 241.

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Three years later, the right to a nationality and the prohibition of deprivation of nationality was included into the Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms of 1995.79 This right appears in the English text of the document without an indefinite article and with the expression ‘citizenship’, which does not reveal substantial differences as compared to the meaning of the formula of the Universal Declaration of Human Rights. The prohibition of arbitrary deprivation of nationality also reflects the wording of the declaration, since the convention covers the right to both retain and change nationality. The initial version of the Arab Charter on Human Rights was adopted on 15 September 1994, but never entered into force. The charter did not include the right to a nationality; it only contained the prohibition of arbitrary deprivation of the original nationality and the deprivation of the right to acquire another nationality without a legally valid reason.80 The Council of the League of Arab States adopted resolutions in 2002 concerning the review of the charter, as it did not conform to human rights standards.81 The revised Arab Charter on Human Rights was adopted on 22 May 2004,82 and now includes the right to a nationality in Article 29. Paragraph 1 declares the right to a nationality in general, for everyone, and contains the epithets ‘unlawfully’ and ‘arbitrarily’ as alternatives with regard to the deprivation of nationality. The right of the child to acquire the nationality of his or her mother in paragraph 2 points towards the prohibition of discrimination.83 Paragraph 3 further states that ‘[n]o one shall be denied the right to acquire another nationality in accordance with the applicable legal procedures of his country.’ The African Charter on Human and Peoples’ Rights of 198184 does not make mention of the right to a nationality, and even its protocol on the rights of women in Africa of 200385 recalls it in the context of marriage only. The purpose of this provision is to ensure that marriage does not affect the nationality of a woman against her will. Therefore, its content encompasses only the right to retain nationality and the right to acquire a nationality, with the latter being limited to the nationality of the husband.86

79 Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms, Minsk, 26 May 1995, Art. 24. 80 Arab Charter on Human Rights, Cairo, 15 September 1994, Art. 24. 81 For more see M. Rishmawi, ‘The Revised Arab Charter on Human Rights: A Step Forward?’, 5(2) Human Rights Law Review (2005), pp. 361-362. 82 2004 Arab Charter on Human Rights, 12 Intl. Human Rights Rep. 893. 83 Cf. 1979 Convention on the Elimination of All Forms of Discrimination against Women, 1249 UNTS 13, Art. 9, Para. 2. 84 1981 African Charter on Human and Peoples’ Rights, 1520 UNTS 217. 85 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Maputo, 11 July 2003. 86 Id., Art. 6.

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The Covenant on the Rights of the Child in Islam,87 concluded in June 2005, under the aegis of the Organization of the Islamic Conference also includes a provision concerning nationality in Article 7.88 Given the subject of the charter, paragraph 1 designates the child as the beneficiary of ‘hav[ing] his [or her] nationality determined’ rather than the right to a nationality. Besides, this paragraph includes the necessity of registration of children with the authorities concerned. According to paragraph 2, states ‘shall safeguard the elements of the child identity, including his/her […] nationality […], in accordance with their domestic laws’, and states ‘shall make every effort to resolve the issue of statelessness for any child born on their territories or to any of their citizens outside the territory.’ Therefore, paragraph 2 excludes a potential interpretation of the curiously worded paragraph 1 that it does not refer to the right to acquire a nationality. The aim of the drafters seems to be obvious, namely to ensure the right to a nationality for children by virtue of both the ius soli and ius sanguinis principles. In case of its entry into force after the twentieth ratification,89 the covenant will offer an appropriate protection to children against statelessness.

2.4

Assessment of the Right to a Nationality

When analysing the content of the right to a nationality, one needs to make a distinction between the right to a nationality of every person and that of children in view of the divergences of various documents. The provision of the Universal Declaration of Human Rights, which states that ‘[e]veryone has a right to a nationality’,90 was subsequently taken over by several documents, such as the American Convention on Human Rights, the Arab Charter on Human Rights and the European Convention of Nationality. The records of debates that took place during the drafting of the Universal Declaration of Human Rights suggest that the purpose of this provision was to ensure protection against statelessness,91 but the obscure phrasing leaves room for divergent interpretations. The indefinite article ‘a’ before the expression ‘nationality’ is similar to the numeral ‘one’ in certain languages – for example, ‘une’ in French stands for either an indefinite article or a numeral. The real content of the paragraph is expressed exactly by the expression ‘valamely’ in Hungarian translation. Due to the fact that the purpose of regulation was undoubtedly to eliminate statelessness, neither a human right of dual nationality,92 nor a prohibition of dual

87 Covenant on the Rights of the Child in Islam, Sana’a, 28-30 June 2005. The covenant was adopted by the 32nd Islamic Conference of Foreign Ministers held between 28 and 30 June 2005. 88 Id., Art. 7, Paras. 1-2. 89 Id., Art. 23, Para. 1. 90 Universal Declaration of Human Rights, G.A. Res. 217A, 10 December 1948, Art. 15, Para. 1. 91 Verdoodt, 1964, pp. 156-161. 92 On the contrary see e.g. Spiro, 2010, pp. 111-130.

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Mónika Ganczer nationality93 can be deduced from the provision under consideration. Through this purpose, it can be accepted, that the right to a nationality includes the right to acquisition and retention of nationality.94 Notwithstanding that scholarly opinions significantly differ concerning the right to change nationality, as that particular right is related to the disposition of nationality rather than to the elimination of statelessness. Having analysed the regulation of the right of the child to a nationality, it may be pointed out that in the legally binding documents its content usually covers the acquisition of a nationality only, and aims to eliminate statelessness emerging at birth. The Convention on the Rights of the Child is a notable exception, for it includes not only the right to acquire, but also the right to retain a nationality; thus it even provides protection to children against becoming stateless at a later stage. This exceptional rule needs to be evaluated in light of the fact that the number of states parties of the convention exceeds 190, and as such, it is applicable in a much wider sphere than the above-mentioned and more frequent solution. In addition, the previous remarks concerning the indefinite article also hold true for the relevant right of the child. The main shortcoming of the right to a nationality is that documents usually do not designate the state that has an obligation to provide nationality for the individual. This substantially reduces the significance of that right, as states may easily shift onto one another the obligation of providing nationality. Thus, the right to a nationality may become an empty shell, and the efficiency of any reference to that right may be rendered dubious.95 Only two documents remedy this shortcoming. The American Convention on Human Rights and the African Charter on the Rights and Welfare of the Child obliges, as a last resort, the state of birth to provide nationality by applying the ius soli principle – the former for everyone, the latter for children. It is worth mentioning that even these documents cannot protect stateless persons, for example foundlings, whose place of birth is not determinable. The prohibition of deprivation of nationality cannot be directly deduced from the right to a nationality, albeit examples can be found in the practice of the Inter-American Commission on Human Rights. The prohibition of deprivation is closely linked to the right to a nationality, and it generally follows the right to a nationality in international instruments. The epithets ‘arbitrary’ and ‘unlawfully’ are frequently attached as attributes to the prohibition of deprivation, but their interpretation gives rise to debates. ‘Arbitrary’ as an attribute is used by the Universal Declaration of Human Rights, the American Convention on Human Rights, the Arab Charter on Human Rights and the European Convention on

93 On the contrary see e.g. Griffin, 1966-1967, pp. 57-64. 94 Chan, 1991, pp. 1-2, 3. 95 For a similar opinion see H.F. Van Pahuys, The Role of Nationality in International Law, Leyden, A.W. Sijthoff, 1959, p. 222.

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Nationality, while ‘unlawful’ appears in the Convention on the Rights of Child and in the Arab Charter on Human Rights – in the latter alongside ‘arbitrary’. The Universal Declaration of Human Rights includes the prohibition of arbitrary deprivation of nationality without offering a definition of arbitrariness. However, the drafting process reveals that the drafters reckoned the elimination of statelessness as the main purpose of the right to a nationality. The statement that a deprivation of nationality is arbitrary, if it results in statelessness can be deduced from the said purpose of the declaration. Therefore, if the right to a nationality is considered as a fundamental human right, any deprivation of nationality resulting in statelessness can be labelled as ‘arbitrary’, as it would be blatantly incompatible with the purposes of the declaration. It should be recalled that the Convention on the Reduction of Statelessness of 1961 stipulates that states shall not deprive a person of his or her nationality, if such deprivation would render him or her stateless.96 The text of the prohibition, however, does not contain any epithets. Although there are some exceptions from the above mentioned statement. According to the report of the UN Secretary-General on human rights and arbitrary deprivation of nationality of 14 December 2009, a deprivation resulting in statelessness would not be arbitrary if it would ‘serve a legitimate purpose that is consistent with international law’, or would ‘compl[y] with the principle of proportionality’.97 For example, a deprivation resulting in statelessness would observe the principle of proportionality, if the ‘nationality has been obtained by deception’ as indicated by the Court of Justice of the European Union in the Rottmann case.98 Consequently, the prohibition of arbitrary deprivation of nationality does not cover dual or multiple nationals, who will possess at least one nationality after losing a nationality through deprivation. This can be illustrated by Article 7 of the European Convention of Nationality that, in addition to the prohibition of arbitrary deprivation of nationality in Article 4(c), permits states to provide for the loss of nationality in their domestic enactments either ex lege, or at the initiative of the state, in case a person voluntarily acquires another nationality.99 The Explanatory Report of the convention also refers to Article 7 for an exhaustive list of grounds for deprivation, which likewise proves that an ex lege loss of nationality in consequence of a voluntary acquisition of another nationality cannot be

96 1961 Convention on the Reduction of Statelessness, 989 UNTS 175, Art. 8, Para. 1. 97 Human Rights and Arbitrary Deprivation of Nationality, Report of the Secretary-General, 14 December 2009. UN Doc. A/HRC/13/34. Paras. 25, 27, 59 See also Arbitrary Deprivation of Nationality, Report of the Secretary-General, 26 January 2009, UN Doc. A/HRC/10/34, Para. 49. (It is worth mentioning that the Human Rights Council regularly deals with various issues concerning nationality, such as the right to a nationality and arbitrary deprivation of nationality, for more see www.ohchr.org/EN/HRBodies/HRC/Pages/ HRCIndex.aspx.) 98 Judgment of 2 March 2010 in Case C-135/8, Rottmann v. Freistaat Bayern [1976] ECR, Para. 59. 99 1997 European Convention on Nationality, 2135 UNTS 213, Art. 4(c), Art. 7, Para. 1(a).

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Mónika Ganczer deemed arbitrary.100 The Declaration on Social and Legal Principles relating to the Protection and Welfare of Children of 1986 also mentions the acquisition of a new nationality– and the dual or multiple nationality of the child – as an exception to the prohibition of deprivation of nationality of the child.101 In other words, it permits the deprivation of the previous nationality. Since the prohibition of the deprivation has no epithet in the declaration, this prohibition is broader than the prohibition of arbitrary deprivation. Therefore, the deprivation of nationality of dual nationals obviously cannot be labelled as arbitrary. In addition, the above-mentioned Explanatory Report to the European Convention on Nationality and the report of the UN Secretary-General give guidelines concerning the prevention of arbitrary deprivation of nationality. According to these documents, the deprivation is arbitrary, if it is not foreseeable, proportional or prescribed by law, or if it is based on discrimination.102 Furthermore, the deprivation is also prohibited, if the person concerned would thereby become stateless, with the exception of the cases of ‘acquisition of the nationality […] by means of fraudulent conduct, false information or concealment of any relevant fact attributable to the applicant’. As regards the procedural safeguards, ‘[s]tates are […] expected to observe minimum procedural standards in order to ensure that decisions on nationality matters do not contain any element of arbitrariness’,103 so ‘decisions relating to nationality shall contain reasons in writing and shall be open to an administrative or judicial review.’104 In addition, arbitrariness was defined by the International Court of Justice as ‘substituted for’ or ‘opposed to’ the rule of law.105 The prohibition of denying the right to change nationality in the Universal Declaration of Human Rights and in the American Convention on Human Rights entails the prohibition of deprivation of both the right to renounce a nationality and to acquire another nationality. It cannot be construed, however, as a prohibition of deprivation of and a right to retain the former nationality, not to mention that the expression ‘change’ suggests the loss of that nationality. In sum, it may be declared that the inherent vagueness and shortcomings of the right to a nationality considerably decrease the effectiveness of the protection it affords, and 100 Explanatory Report to the European Convention on Nationality. Available at http://conventions.coe.int/ Treaty/en/reports/html/166.htm, Para. 36. 101 Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, G.A. Res. 41/85, 3 December 1986, Art. 8. 102 Explanatory Report to the European Convention on Nationality, Paras. 35-37; Human Rights and Arbitrary Deprivation of Nationality, Report of the Secretary-General, 14 December 2009, Paras. 22-46. 103 Human Rights and Arbitrary Deprivation of Nationality, Report of the Secretary-General, 14 December 2009. UN Doc. A/HRC/13/34. Para. 43. 104 Explanatory Report to the European Convention on Nationality, Para. 37. 105 Asylum Case (Colombia v. Peru), Judgment of 20 November 1950, 1950 ICJ Rep. 266, at 284; Case concerning Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy), Judgment of 20 July 1989, 1989 ICJ Rep. 15, at 76, Para. 128.

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The Right to a Nationality as a Human Right?

exposes its realization to the will of states. However, the elimination and reduction of statelessness usually become state interest due to problems originating from the status of stateless persons. Besides, provisions supplementing the right to a nationality concerning the prohibition of deprivation may offer appropriate protection against statelessness for individuals possessing a nationality. According to Hersch Lauterpacht, ‘nationality may not be a ‘natural’ or ‘inalienable’ right. Its importance is conditioned by the existence of sovereign States claiming to be the indispensable link between the individual and international law.’106 The international legal personality of the individual is known not to depend on nationality.107 Statelessness, therefore, should be eliminated because of problems that stateless individuals and their receiving states need to solve, rather than the legal personality of such individuals. In order to enhance the protection of stateless individuals, it is worth to consider Lauterpacht’s proposal, which advocates the granting of nationality by the state of birth as a last resort and the preconditioning of the acquisition of a new nationality for the deprivation of the previous nationality.108

106 H. Lauterpacht, International Law and Human Rights, Archon Books, London, 1968, p. 347. 107 Suffice is to mention the Art. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, according to which everyone within the jurisdiction of contracting parties – regardless of his or her nationality or statelessness – may submit an application to the European Court of Human Rights. See e.g. Sisojeva and Others v. Latvia, ECHR, Appl. No. 60654/00, Grand Chamber Judgment of 15 January 2007; Kaftailova v. Latvia, ECHR (2007) Appl. No. 59643/00, Grand Chamber Judgment of 7 December 2007. Applicant were stateless in these cases. See also P. Weis, Nationality and Statelessness in International Law, Stevens & Sons Ltd., London, 1956, pp. 258-259. 108 Hersch Lauterpacht proposed the following provision: ‘Every person shall be entitled to the nationality of the State where he is born unless and until on attaining majority he declares for the nationality open to him by virtue of descent. No person shall be deprived of his nationality by way of punishment or deemed to have lost his nationality except concurrently with the acquisition of a new nationality. The right of emigration and expatriation shall not be denied.’ Lauterpacht, 1968, p. 346.

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Gábor Kardos*

3.1

Autonomy for Minorities and the European Normative Framework

Article 4 paragraph 3 of the European Charter of Local Government, an international treaty signed in 1985 under the auspices of the Council of Europe, stipulating the principles governing such organs, states that ‘public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen.’ The Charter protects the independent jurisdiction, operational freedom and financial independence of local governments and their right of association in order to carry out tasks of common interest. And although it does not mention minority self-governments, where minorities constitute the local majority, its principles may also be considered normative in this aspect, since in their case, minority self-government is carried out through the implementation of general selfgovernment rights. The document adopted on the Copenhagen meeting on the human dimension of the Conference (as of 1994: Organization) on Security and Cooperation in Europe in 1990 covered autonomy in connection with the participation rights of persons belonging to a minority in a rather subtle and ambiguous way. Chapter IV, Paragraph (35) of the document reads as follows: ‘The participating States will respect the right of persons belonging to national minorities to effective participation in public affairs, including participation in the affairs relating to the protection and promotion of the identity of such minorities.’ The participating States note the efforts undertaken to protect and create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of certain national minorities by establishing, as one of the possible means to achieve these aims, appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of such minorities and in accordance with the policies of the State concerned. The text’s main merit was its birth, i.e., the fact that it recognized autonomy as a means of preserving minority identity. Its adoption is owed to two factors. On the one hand, the

*

Head of Department, Eötvös Loránd University, Faculty of Law; Member of the Committee of Experts of the European Charter for Regional or Minority Languages (Council of Europe). E-mail: [email protected]. This chapter, Parts 2 and 3 in particular, contains not only the thoughts of the quoted authors and the essayist. It also reflects ideas raised at numerous domestic and international conferences and in discussions held with international lawyers, political scientists, sociologists and other experts specializing in minority issues, as well as with minority politicians.

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euphoria ensuing in the wake of the democratic changes in Central and Eastern Europe and, on the other hand, its non-binding character. In July 1991 a meeting of experts on national minorities was held under the auspices of the CSCE in Geneva. Chapter IV of the report adopted deals with the conditions for persons belonging to national minorities to have equal opportunities for effective participation in public life, economic activities, and the development of their society. The text provides a detailed list of institutional forms recommended for the above purpose, e.g., advisory and decision-making bodies, elected bodies and assemblies, local and autonomous administration, self-administration and decentralized or local forms of government, without specifying what it meant by such categories. A participant wittily called this part of the text the ‘Geneva shopping list’.1 European states did not make much use of this shopping list, and even if they did, they were most certainly not shopping for autonomous administration by national minorities. The Lund Recommendations on the Effective Participation of National Minorities in Public Life were issued in 1999 upon the request of the OSCE’s High Commissioner for National Minorities. Part III of the Recommendations makes a clear distinction between territorial and non-territorial arrangements of self-governance. Regarding territorial arrangements, paragraph 19 recommends the principle of subsidiarity and the devolution of powers to the governments concerned. Paragraph 20 states that appropriate local, regional or autonomous administrations that correspond to the specific historical and territorial circumstances of national minorities may undertake a number of functions in order to respond more effectively to the concerns of such minorities. It lists certain functions over which such administrations have successfully assumed primary or significant authority: education, culture, use of minority language, environment, local planning, natural resources, economic development, local policing functions, as well as housing, health and other social services. It mentions taxation, administration of justice, tourism and transport as functions shared by central and regional authorities. As far as non-territorial arrangements are concerned, paragraph 18 points out that education, culture, the use of minority language, religion and other matters crucial to the identity and way of life of national minorities are the issues most susceptible to regulation through these arrangements. Therefore, the Recommendations draw the governments’ attention to the good practices of autonomies provided by certain European states. Part IV, paragraph 20 states that selfgovernance arrangements should be established by law and generally not be amended in the same manner as ordinary legislation. Article 11 of Recommendation 1201 (1993) of the Parliamentary Assembly of the Council of Europe (originally drafted as, but never becoming an additional protocol on

1

J. Helgesen, ‘Protecting Minorities in the CSCE Process’, in A. Rosas and J. Helgesen (Eds.), The Strength of Diversity: Human Rights and Pluralist Democracy, Martinus Nijhoff, Dordrecht, 1992, p. 181.

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the rights of national minorities to the European Convention on Human Rights) defines the national minorities’ right to autonomy. In the regions where they are in a majority the persons belonging to a national minority shall have the right to have at their disposal appropriate local or autonomous authorities or to have a special status, matching the specific historical and territorial situation and in accordance with the domestic legislation of the state. In my view, Article 11 may be characterized as follows. Firstly, it gives a relatively exact definition of the right’s substance: local or autonomous authorities or a special status – an international norm can hardly be more exact. Secondly, it incorporates a de facto community right, naming the persons belonging to a national minority as subjects, into the system of an agreement protecting individual rights. Thirdly, it leaves the regulation of autonomy to the domestic law – an international treaty may hardly define the organizational model of a state. Fourthly, although it fails to clarify some pressing issues (whether and how this concept can be construed in a state that formally doesn’t recognizing regions; how the local majority may be determined; how to understand the notion of national minority); clarification of such elements could be done by the European Court of Human Rights in the course of deliberating complaints received. In the absence of autonomy, such complaints would correspond to a unique historical and territorial situation. Even if we assume that the European Court will show due restraint in connection with such complaints, it will have to decide, albeit within certain limits, whether and in what forms autonomy should be provided. After the Summit of the Heads of State and Government of the Council of Europe had refused to adopt Recommendation 1201 (1993) as an additional protocol, the Parliamentary Assembly expressed its disapproval in Recommendation 1231 (1194). In its Recommendation 1255 (1995) the Assembly further maintained that an additional protocol on minorities would be necessary; however, it did not insist on the right to autonomy anymore. In Recommendation 1609 (2003) it stated that, relying on the experiences of autonomous regions, European states should preserve their territorial integrity, while at the same time they should ensure minority rights. Resolution 1334 (2003), in its entirety, elaborates on this particular statement. Clause 13 states that autonomous status may be applied in both unitary and federal states. Clause 15 points out that autonomy is not a panacea; however, failure should be blamed not on autonomy as such, but on the conditions in which it is applied. According to clause 22, it would be appropriate for the statutes and founding principles underlying autonomous status to be included in the states’ constitutions; however, both the central and autonomous authorities should be ready to renegotiate them. The decision-making powers and financial independence of autonomous authorities are also mentioned. CoE CLRAE Resolution 52 (1997) states that an appropriate form of self-government should be granted to minorities. In its Recommendation 43 (1998) the Council of Europe

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urges specific protective measures in territories where the members of a minority constitute a substantial proportion of the population, to create territorial authorities in such a way as to prevent dispersal of the members of a national minority, to guarantee their effective political participation and to avoid changing the geographical boundaries. Recommendation 70 (1999) calls for regulating and managing a substantial share of public affairs in the interest of the local population. The question is why and how the Committee of Ministers of the Council of Europe and the governments represented therein resist the temptation by ignoring all these recommendations. In my opinion, it may be explained by the negative consensus forged between European states guaranteeing minority autonomy and those abhorring even the concept thereof. On the one hand, if a state, dreading the transformation of its organization or curbing its powers, or fearing the secession of a part of its territory, does not want to grant autonomy, it will obviously adopt a negative stance in relation to the international codification of such norms. On the other hand, if a state has already granted autonomy, it may not see the point in addressing this issue in the international context or it may even be afraid of being lectured by international bodies interpreting such norms on what kind of autonomy to grant.

3.2

Perceiving a National Minority as a Threat

Why are national minorities considered dangerous, a threat to the very existence of the majority nation, as majority nationalists often perceive them? The answer is manifold. First and foremost, national minorities are different, they differ greatly from the majority, they have a different language, often their religion and financial means are different too – they may be wealthier or poorer. Language and the culture are the most important expressions of collective identity. However, great efforts notwithstanding, preserving collective identity may be jeopardized or even become impossible in case it is limited to the domain of one’s private life. If one wishes to assert collective identity in the broader context of public life, including education, the use of language, media, culture, business and social activities, minority rights shall be indispensable. Even minority rights which are the easiest to grant may be deemed a threat by the radical majority nationalists, reading into the everyday facts of life from their rather peculiar perspective. For instance, the use of place names and other geographic names in a minority language, even in the modest form of the signboard of a settlement, may demonstrate the existence of a given minority, being at home in a given physical space. Elementary education in a minority language is a threat in the eyes of a radical majority nationalist because, while guaranteeing only the transfer of a modest body of knowledge, it gives legitimacy to a means of expression, evidencing the raison d’être of a different

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culture in the given state. Needless to say, the higher the level of education, the bigger the threat to the dominance of the majority culture. The more sophisticated nationalists would not crudely refer to the cultural dominance of the majority, instead, they assert the unacceptability of separation. They claim that minority schools and cultural institutions facilitate the formation of segregated, competing communities within the state, and the use of minority languages in official matters would push the ethno-cultural character of the state into eclipse – this nationalistic approach does not need further explanation. Even in cases when the use of minority languages is allowed, largely in theory and scarcely in practice, on the local administrative level, it is not permitted to use them when dealing with the bodies of central administration or in the parliament, the symbol of popular sovereignty. It may be formally allowed; however, exercising this right would surely cause a scandal. Radical nationalism perceives even the linguistic and cultural rights of minorities as a threat. For moderate nationalists, it is the political rights of minorities that constitute the real security risk. And we are referring here not only to autonomy-related rights, but to universal political freedoms, as well, if they are exercised in an organizationally separated way. In connection with the latter, the establishment of ethnic political parties is one of the threats perceived. According to nationalists, national minority parties are dangerous because they endeavour, at least clandestinely, to disrupt the state. Furthermore, under certain political constellations, they may become part of the government, potentially causing even more damage. A more moderate view is that they instigate distrust and even animosity between the majority and the minority as they create an opportunity to engage in politics as adversaries. Furthermore, the appearance of the aforementioned animosity and the infringement of the principle of equality provide subtler arguments to those opposing the special, autonomy-related rights of minorities.

3.3

The Autonomy and the Ethnic-Based Federation

Municipal rights over minority schools (and other cultural institutions) raise concerns, since they may lead to the situation where in these institutions not citizens loyal to the majority state are educated but citizens of a sort of virtual minority entity, and such institutions may strengthen this awareness. This concern applies principally to regional autonomy. Regional autonomy is an imminent danger for majority nationalism because if implemented, the ethno-cultural character of public authority is significantly overshadowed by regional autonomy in a given area. In case of regional autonomy, this character does not merely fade away, as it may well be that the formal official bilingualism (equality between the majority language and the minority language) but it may essentially mean that administration is run in the minority language. In addition, certain nationalists claim that

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the rights of majority citizens will be infringed. Moreover, they are thrown into a secondary status as the organs of the autonomy may pass decisions independently and if the minority, that is, the local majority, is entitled to decide, the majority citizens may be disadvantaged. Finally, the most frequently invoked argument is that regional autonomy is merely the first step towards secession, as the capability of having your own administration is a prerequisite for independence. In fact, regional autonomy may reinforce the acceptance of the state for the minority citizens living there. What János Esterházy said about the good minority policy is even more so for the solution accounting for regional autonomy. ‘Righteous national minority policy is a considerably bigger coefficient than a number of written laws, it is more secure than any Maginot line, for nothing makes a state stronger than the fact that not only the majority citizens but also the minority citizens feel completely at home.’2 As far as the marginalization of the ethno-cultural character of the state is concerned, the majority nationalists partly fear what they consider natural when it comes to minority citizens. What they fear is that the public authority will deviate from their mentality. The answer is that the rights of majority citizens, who have become the local minority, shall not be ensured merely through acts but through the maintenance of a proper infrastructure. The fear from the decisions of the local majority means again that their subject is what minority citizens perceive as natural. The fear is that it is not them who constitute that majority. In practice, this fear may be managed by affording veto rights to the political representation of the local minority with respect to certain questions. As for autonomy as the anteroom of secession, arguing against it is possible, as we have seen, on the grounds that ensuring self-government may be a cure against such aspirations. Besides, it is not so simple, since in technical terms, in addition to independent institutions, the role of e.g. the geographical location of the autonomous area is also crucial, that is, secession requires a location along the national border. In case of claims for ethnic-based federation, the same fears may arise, however, these are exacerbated by the fact that in this case secession may be a constitutional right further enhancing concerns, since it is up to the member republic to decide when to exercise this right. Much depends, of course, on the wording of the constitutional provision, whether an implementing act was adopted and the underlying political will. As regards, the claim for ethnic federation may face constitutional obstacles even on the Western part of the continent. This is due to the perceived threat of secession, in spite of the several existing and successful examples of ethnic federation in Western Europe.

2

Cited by: G. Jeszenszky, ‘Aktív magyar külpolitikát!’, Népszabadság, www.nol.hu/cikk/413815/.

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3.4

Fear of Autonomy for Minorities

How Can These Fears Be Curbed?

Overcoming the fears leading to the transformation of minority rights into security issues is a time-consuming process, the success of which depends on a number of domestic and international circumstances. The most important prerequisite for the acceptance of the special rights pertaining to autochthonous minority communities and the preservation of their identity is overcoming the majority’s existentialist distress. The majority needs to understand that the identity of a community with a different culture does not pose a threat to their identity, not even to the ethno-cultural character of the state; at most it may give it a special hue on the local level. They also need to understand that if cultural identity is at stake, it will not be the identity of the majority but that of the minority. Namely, minority cultures are jeopardized by assimilation that the majority culture also brings with it, with great impetus, albeit without coercion. Majority culture – which identifies itself as the general political culture, needs to be separated from it, – and to co-exist with minority culture in order to ensure that all citizens may identify themselves with the political culture of their country and that a constitutional patriotism may appear.3 I have already referred to the time-consuming character of the process. Instead of listing lengthy arguments, here is an example for cooperation between states, which – although emerging as a result of a powerful external force, bringing the reinterpretation of democracy with it – may lead to overcoming the fears so very proliferated in Central and Eastern Europe. First of all, the question must be asked: who is afraid of minority conflicts today in the Northern states and with regard to their existing relationship with these states? The answer is presumably: nobody. However, if one tries to answer the question in the context of the state and in terms of the relationship between the immigrant communities and the majority, then the answer may be less optimistic. At a certain point in time, however, the situation was different. After Norway became independent in 1905, but in particular in the thirties of the last century, the Norwegian Kven minority, whose language is essentially identical to the Finnish language, appeared as an important security risk before the Norwegian politicians. Moreover, war with Finland seemed inevitable. Violent Norwegianisation led to the appearance of political forces defining the objective of Greater Finland including the Kven areas as well. Private book deliveries were strictly controlled. Certain Norwegian politicians came to the conclusion that the Finnish are unreliable and Finland is, despite all official denial, ready to attack at any moment.4 The function of autonomy is to provide a system of institutions that delegitimizes separatism, to make it unreasonable for the majority of the minority and render unjustified

3 4

J. Habermas, The Postnational Constellation: Political Essay, Polity Press, Cambridge, 2001, p. 74. B. Jávorszky, Észak – Európa kisebbségei (Minorities in Northern Europe), Magvető, Budapest, 1991, pp. 5964.

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for the international public opinion to opt for secession. As Sándor Vogel put it ‘Only an ethnicity which feels safe and unthreatened in its existence may be loyal to its state. Consequently, it will not strive for secession. The principle of autonomy can be harmonized with the principle of regional integrity.’5 It seems certain that granting autonomy and its effective appearance enhance the sense of uncertainty for the majority and at the same time, autonomy would impose a huge responsibility on the leaders of the central state to dispel these intensified fears. However, this may be replaced by a sort of sense of satisfaction in the majority, meaning that we also provide this possibility. Of course, this sense may not be expected from the radical majority nationalists who consider the street signs written in the minority language or minority primary schools as threats. In order to ensure that the concepts of politicians with such an attitude are not appealing to the majority, it is considered merely a precondition that in exchange for autonomy, the minority should waive their claim for secession in a referendum or the neighbouring countries set it out in an agreement that they will not pose any territorial claims. The real convincing power of autonomy lies in its successful operation. The process, which could result in minority issues losing their security relevance, requires the cultural character of the majority political identity to fade away. The acceptance of minority identity, ranging from rewriting textbooks with majority attitude to include cultural rights and rights to official language use proving the presence of minorities, is a prerequisite for the acceptance of minorities as part of the political community. Acceptance into the political communities is an important step for minority parties to get into the government, which proves that they are not worse leaders than others. However, inclusion into the political community may culminate in the refusal of the constitutional principle of an ethnic-based nation state. If the majority also provides the possibility for minority autonomy, then it has become clear for them that a region with special administrative rights, where a minority community or its substantial part live in one block, will not undermine the territorial integrity of the state, because autonomy is not equivalent to independence. As Hurst Hannum points out, autonomy assumes that the local community exercises real power in certain questions, but it is not protected from the power and influence of the central government. What autonomy collides with, however, is the instinctive tendency of the state for centralisation and standardization.6 The reconstruction of political consciousness, as a result of which the general political culture is not equated with the majority culture, leads to an order of true legitimacy upon the backdrop of the coexistence of minorities and the majority.

5 6

S. Vogel, ‘A kisebbségi jogok kodifikációjának lehetőségei Európában’ (‘Possibilities for the codification of minority right sin Europe’), 3(4) Külpolitika (1996), p. 209. H. Hunnum, Autonomy, Sovereignty, and Self-Determination. The Accomodation of Conflicting Rights, University of Philadelphia, Philadelphia, 1990, p. 468.

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The role of international law in this process is limited. The autonomy regimes accomplished in the affected states have a much more important role to play.

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4

The ‘Genuine Link’ Principle in Nationality Law

Judit Tóth*

4.1

Introduction

Ever since the famous Nottebohm case (Guatemala v. Lichtenstein, ICJ, 1955) the principle of effective nationality in international customary law has been the object of intense debate among academics. Although public international law and private international law have limited influence on nationality law (e.g. in the context of diplomatic/consular protection, respect for dual citizenship and the family status of individuals), the wide spectrum of human rights challenges the regulative power of sovereign states on citizenship. The meaningful, existing connection between the national and the state is embodied in the legal bond of nationality with its various forms of acquisition, maintenance, preservation of or option between nationalities laid down in various international agreements. In the following I shall provide an overview of the genuine link requirements set forth in the Hungarian law on citizenship with due attention to the country’s respective international commitments. The analysis shall seek to explain the competition between ethnic linkage and legal ties in contemporary Hungarian legislation and legal practice.

4.2

The Criteria of Existing Connection under International Law

Acquisition of nationality often requires the existence of a genuine link between the applicant and the state, while loss of nationality is frequently founded on the absence of a genuine link. At the same time, the possession of nationality is considered to be the evidence of the genuine link between the national – wherever he or she may be residing – and the state. The paradoxical appearance of the genuine link will be described below. The effective nationality principle in international customary law has been disputed by academics since the famous case of Nottebohm.1 Although public international law and private international law have limited influence on nationality law (e.g. in the context of the diplomatic/consular protection, respect for dual citizenship, family status of individuals),

* 1

Associate professor, University of Szeged. E-mail: [email protected]. Lichtenstein v. Guatemala, Judgement of 6 April 1955, Second Phase, ICJ Reports 1955, p. 23.

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the wide spectrum of human rights is framing stronger and stronger the regulative power of sovereign states on citizenship. The meaningful, existing connection between the national and the state is embodied into the legal bond of nationality in various forms of acquisition, maintenance, preservation of or option between the nationalities that are determined in various international agreements. The International Court of Justice (in the Nottebohm case) considered the following evidences of effective linkage of a national to the state of nationality on the international plane: habitual residence, centre of interests, family ties, the participation in public life and manifestation of connection to the given country in education of children. However, the genuine link of individual to one state – using this term generally in law – has social, economic, cultural, moral, emotional and factual aspects that are inserted into the legal regulation in a limited extent: – the state sovereignty determines the legal rules on acquisition and loss of individual’s citizenship (domain réservé); – the sovereignty of other states determines whether this nationality is accepted and respected by them. In this way we can speak about the meaningful, existing legal tie between the individuals and states that are embodied into the legal institution of nationality through various preconditions of acquisition, maintenance, preservation or option of nationality as those are regulated in national laws. However, a genuine legal tie of the state to its own nationals would be respected by another state in concrete disputes or conflict of interests (e.g. in case of dual citizenship, in diplomatic/consular protection, in state succession) if its nationality laws, provisions and practice are in conformity with the international treaties concluded by the state, to principles of international law, customary law and other sources of international law. It means that human rights obligations as well as principles of bona fides, ban of retroactive legislation and abuse of law substantially determine the sovereign legislation on nationality. Acquisition and loss of nationality is invalidated internally and internationally if – acquisition is based on deception, fraud or abusive behaviour of applicant, – loss of nationality is based on arbitrary, discriminative or abusive state action. Acquisition in absence of genuine link has not been disputed internationally with the exception of the missing basis for diplomatic/consular protection. It can be explained for subjective, soft or relative component of ‘effective connection’ of national to the state. What are the objective criteria to the admissible and recognisable acquisition or loss of nationality that are appearing in treaties in order to frame the regulation on nationality law? At what time of objective criteria shall be required, in time of acquisition or later or ever? The dynamic relationships in transnational citizenship and communities refuse static solutions.

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Furthermore, the majority of objective (and subjective) criteria of acquisition and loss of citizenship are regulated in national laws, and knowledge about two hundred systems of domestic rules and practice is limited. Thus analysis of trends in nationality law may focus rather on the international legal documents whether a factual, objective connection of individual to the country, its society, population or region is substantiated in legal conditions of acquisition, and the absence of connection may result loss of nationality. The required criteria of genuine link in legal regulation are as follows: – residence and/or presence in time of acquisition; its liberal version if the promise of residence after acquisition is proper and restrictive provisions require prior residence (or/and a specific legal status granted of the applicant) in the country of acquisition; logically, a long absence and living abroad of the national may result loss of nationality; – family ties (in descent line, marriage and adoption by a national); however, third or fourth or other descendant generation of nationals may limit the implementation of ius sangunis if a descendant of the national is born abroad without any other contacts with the state; it is not generally determined how far the consanguinity is acceptable as genuine link; – language skills and/or cultural familiarisation (e.g. attending school, speaking the language of colonists, kin-state); its level is not necessarily tested in a standard method; – property or investment in the receiving state, its size and economic profitability is diverse; – worthiness, such as patriotic services, cultural or sport excellence is determined as exceptional title for acquisition; – registration or written statement as physical connection with representatives of state – in long absence or state succession is frequently required in order to preserve or acquire nationality; The opposite logic appears in legally constructed connections as follows: – loss of prior citizenship (e.g. in re-naturalisation, application for recovery or restitution of citizenship) as a precondition to acquire a new nationality. The citizenship of emigrated national as legal bond is lost (by deprivation or ceasing) and its recovery may be provided without other evidence of linkage for expatriated person; – renouncement of citizenship is ensured due to the freedom of the individual in change of nationality although the link to the country is also standing (e.g. migrant workers are commuting from one country to another); – deprivation or withdrawal of citizenship is a one-sided state action for betrayal, abusive or illegal manner of the national (staying or living abroad). The differentiation between the legal bond and objective criteria of link is visible in combating and prevention of statelessness by international (human rights) treaties: all universal

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and regional conventions (under the aegis of the United Nations or the Council of Europe) are dealing with de jure statelessness while de facto statelessness is not manageable. Furthermore, there are some examples on the undefined term of genuine link or proper connection relating to the successor state (such as in the European Convention on the Avoidance of Statelessness in Relation to State Succession (2006)2 and the European Convention on Nationality (1997)3). Table 1 summarises how relevant international treaties refer to the legal bond and criteria of connection between the individual and the state at three stages of nationality law. Table 4.1 Components of genuine link in regulation Criteria in acquisition

Genuine link

Child’s right to the nationality of par- Birth or descent or ent’s nationality. found abandoned/not identiChild’s right to nationality in the terri- fied child, stateless torial state (avoiding statelessness). child, child of national in the succession state.

Source European Convention on Nationality (1997) Art. 6 UN Convention on the Rights of the Child (1989)4 Arts. 7-8, Convention on Certain Questions to the Conflict of Nationality Laws (1930)5 Arts. 14-15, European Convention on Nationality (1997) Art. 6, Convention on the Reduction of Statelessness (1961)6 Art. 1, European Convention on the Avoidance of Statelessness in Relation to State Succession (2006) Art. 10

Child’s right to nationality of adopting parent or facilitated acquisition. Acquisition upon request for lawfully and habitual residing applicant (maximum ten years) or facilitated acquisition for stateless persons with habitual residence. Facilitated recovery of its nationality by former nationals who are lawfully and habitually resident on its territory. Right to privacy, family life by the territorial state (in case of state succession due to the stateless or erased person status).

2 3 4 5 6

2006, Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession, Strasbourg (19 May 2006). 1997, Council of Europe Convention on Nationality, Strasbourg (6 November 1997). 1989, Convention on the Rights of the Child, New York (20 November 1989). 1930, Convention on Certain Questions Relating to the Conflict of Nationality Laws, The Hague (13 April 1930). 1961, Convention on the Reduction of Statelessness, New York (30 August 1961).

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Successor state shall grant nationality for persons in possession of citizenship of predecessor state avoiding their statelessness if they have habitual (genuine, standing) residence in the state in concern or proper connection to the successor state without habitual residence in any state in concern. Proper connection would mean a legal bond to the territory of, birth, last place of habitual residence in the succession state or other relations (e.g. family ties, participation in public life, centre of interests). In deciding on the granting or the Genuine link, resi- European Convention on Nationality retention of nationality in cases of state dence, declaration, (1997) Art. 18(2). succession, the state concerned shall origin. take account, in particular: a. the genuine and effective link of the person concerned with the state; b. the habitual residence of the person concerned at the time of state succession; c. the will of the person concerned; d. the territorial origin of the person concerned. Right to opt or to acquire the national- Residence, origin ity of the successor state on the or prior citizengrounds of habitual residence, origin ship or prior citizenship Criteria in loss

Bilateral agreement between the predecessor and successor state(s), European Convention on Nationality (1997) Art. 19

Absence/presence Source of genuine link

Change in personal/family status may ---result the loss of nationality if other nationality of the person concerned has acquired or possessed.

Convention on the Reduction of Statelessness (1961) Art. 5(1).

Loss of nationality is lawful if it was ---based on fraud in acquisition (naturalisation), voluntary service in a foreign military force, conduct seriously prejudicial to the vital interests of the state.

European Convention on Nationality (1997) Art. 7 Rottman v. Freistaat Bayern C-135/8 CJEU, 2 March 2010.

Loss of nationality is lawful due to the No residence lack of a genuine link between the state and a national habitually residing abroad.

European Convention on Nationality (1997) Art. 7

Loss of nationality is lawful due to his – adoption if he acquires or possesses the foreign nationality of one or both of the adopting parents.

European Convention on Nationality (1997) Art. 7

Renunciation may be requested only by nationals who are habitually resident abroad.

European Convention on Nationality (1997) Art. 8

No residence

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Criteria of international recognition

Source

State is entitled to determine who is its national meeting the conditions that are regulated in specific treaties concluded by the state, and granting nationality is limitable.

Genuine link as Convention on Certain Questions to conformity to the the Conflict of Nationality Laws (1930) international law Art. 2 – draft (invalidate)

State is entitled to regulate who is its national that shall be recognised by other states to a certain extent as it is in accordance with international treaties, customary law and generally recognized legal principles on nationality.

Convention on Certain Questions to the Conflict of Nationality Laws (1930) Art. 1

State determines in domestic legislation who is its national that shall be accepted by other states in so far as it is consistent with applicable international conventions, customary international law and the principles of law generally recognised with regard to nationality.

European Convention on Nationality (1997) Art. 3.

Equal and effective protection of individuals against arbitrary acts of state including the limitable power of discretion in nationality law.

Inter-American Court of Human Rights, Yean and Bosico children v. Dominican Republic (2005)7

Domestic regulation on citizenship (acquisition) shall not entitle the state to require its recognition by other states if it is not in conformity to genuine link of national to the state that assumes (diplomatic, consular) protection of own national against other state (in case of dual/multiple nationality protection on the grounds of dominant nationality).

Conformity to Nottebohm case (1955) diplomatic protection in time of acquisition

Dual citizen shall be treated as a national with the dominant nationality (on the grounds of his/her habitual residence or closer connection) by a third country.

Convention on Certain Questions to the Conflict of Nationality Laws (1930) Art. 5.

Private international law has stronger influence on (effective) nationality law because it requires domicile of person with multiple citizenship. In this way the dominant nationality is better known. The change in personal/family status may only result the loss of nationality if the person concerned has acquired or possessed other nationality; all this in order to avoid statelessness (see the Convention on the Reduction of Statelessness (1961), Article 5(1)). 7

Yean and Bosico children v. Dominican Republic, Inter-American Court of Human Rights, 8 September 2005, Ser. C, No. 130.

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4

4.3

The ‘Genuine Link’ Principle in Nationality Law

The ‘Genuine Link’ Criteria in Hungarian Law

The above described preconditions of acquisition, loss as well as maintenance or option of Hungarian nationality have not been respected in domestic legislation for many reasons since the first Act on Hungarian citizenship in 1879. Due to changing state borders and huge migration waves8 the legal rules in force uphold inherited features and modern standard of citizenship together. The Hungarian rules on citizenship in force (Act No. LV of 1993 that was substantially modified in 20109) have some peculiarities in the context of the genuine link requirement: – long absence of nationals abroad (emigrants without connection to the state, authorities or population) does not result loss of nationality; – far consanguinity of nationals cannot break the chain of ius sangunis for descent generations born abroad; – no presence of applicants for naturalisation if they are far descendants of prior national; the most preferential naturalisation has attracted to the Hungarian citizenship as second nationality about 400,000 persons within two and half years while in previous decades the average number of naturalised persons was five to ten thousand persons per annum; – the Hungarian language skills and/or cultural familiarisation of preferential applicants for naturalisation and recovery of citizenship has been implemented without test in a standardized, legally determined way; – examination on constitutional issues for non-preferential applicants has been tested in a standardized, legally regulated method only for non-ethnic (non-native) applicants; – the State is subjected to the principle of non-discrimination between its nationals, whether they are nationals by birth or have acquired its nationality subsequently – with exception of loss for abusive manner (European Convention on Nationality (1997), Article 5(2)); – upon request the lost Hungarian citizenship can be recovered without residence in the country (re-naturalisation, restitution of citizenship); – renouncement of citizenship by an emigrated national is accepted although his/her link to the society, economy or family is standing; – withdrawal of nationality is allowed as one-sided state action but only exceptionally. We cannot evaluate the principle of genuine link in practice because giving reasons in writing and judicial review of refused naturalisation, re-naturalisation applications are not available under Hungarian law. Due to reservations made, the procedural guarantees 8 9

J. Tóth, Migration law in Hungary. Monograph in the International Encyclopaedia of Laws, Kluwer Law International, The Netherlands, 2012, p. 348. J. Tóth, ‘Hungary – Changes in the Executive Rules to Implement the Recent Amendment of the Citizenship Law’, EUDO Citizenship News, 13 August 2010 (http://eudo-citizenship.eu/).

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Judit Tóth determined in the European Convention on Nationality (1997)10 have not been implemented in full extent. Moreover, the authentic translation of the Citizenship Act, its executive government decree and related case-law has neither been forwarded to the Council of Europe, nor published elsewhere. How is thus the requirement of state co-operation11 met? The facilitated acquisition of citizenship has been considered as a compensation of historical injustices since 1993 (the date of adoption of the fourth Act on Hungarian Nationality). However, the residence in Hungary was required for applicants in naturalisation and re-naturalisation criteria in 1993-2010, with exception of the victims of forced migration, exchange of population, renunciation or deprivation of citizenship in 19451990 because they have recovered the lost citizenship without return.12 In this context, the previous citizenship can be considered as a genuine connection to the state. However, the benefits in naturalisation have covered not only expatriated nationals but also his/her nearer or farer descendants. The accelerated naturalisation means a shift in acquisition that has been supporting mainly the never-nationals since 2011. In absence of data on age structure of the newly naturalised 420,000 persons (between January 2011-July 2013) from 484,000 applicants,13 it is very probable that the rate of applicants that have ever had a Hungarian citizenship (they would be over seventy years) is marginal, while the majority of new citizens are descendants of emigrants and new generations in diaspora without personal knowledge and impressions of life in Hungary. Can it be considered as a (non-pecuniary) compensation for damages (e.g. in freedom or property) caused by the public power before 1989? During the 20th century, the confiscated assets, racial persecution, inhuman migratory movements, arbitrary imprisonment or deprivation of citizenship was present in our region, but the subjective right to compensation for victims has never been ensured since 1989. The partial and fragmented compensations were conditional in acts based on inter-generation consent in Hungary.

10 Art. 11: ‘Each State Party shall ensure that decisions relating to the acquisition, retention, loss, recovery or certification of its nationality contain reasons in writing.’ Art. 12: ‘Each State Party shall ensure that decisions relating to the acquisition, retention, loss, recovery or certification of its nationality be open to an administrative or judicial review in conformity with its internal law.’ 11 Art. 23 (1): ‘With a view to facilitating co-operation between the States Parties, their competent authorities shall: a) provide the Secretary General of the Council of Europe with information about their internal law relating to nationality, including instances of statelessness and multiple nationality, and about developments concerning the application of the Convention; b) provide each other upon request with information about their internal law relating to nationality and about developments concerning the application of the Convention.’ 12 Art. 5/A of Act No. LV of 1993 allows recovering the citizenship upon request of the victim. The President of the Republic – if the responsible minister proposes – shall recover the lost citizenship of emigrated person based on the Act X of 1947, Act LX of 1948, Act V of 1957, Resolution of the Government No. 7970 of 1946, No. 12.200 of 1947 including the cases of stateless persons born before 1957. 13 Announcement of the secretary of the state for parliamentary affairs, Ministry of the Interior, Mr. Károly Kontrát, 26 July 2013, MTI (Hungarian News Agency).

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However, recovery in citizenship law must relate to the victims upon their request on acquisition if they survived the historical injustices such as peace treaties, bilateral agreements excluding multiple citizenship or deprivation of citizenship. The accelerated naturalisation differs from the other compensatory acts: it is setting up a legal tie with rights and obligations for outsider members of the political community without equal treatment for all. Acquisition of second citizenship voluntarily is not tolerated in eleven EU Member States, and the citizenship in Austrian, Slovakian14 and Ukrainian nationality law is lost if a national acquires for own desire a second nationality. Granting Hungarian nationality in mass without bilateral negotiations and agreement with these neighbouring states in order to provide exceptions provokes harsh reactions, such as introduction of stricter legal consequences for nationals. For instance, the amendment of the citizenship act entered into force on 17 July 2010 in Slovakia has deprived at least five hundred persons from the Slovakian citizenship including some dozens of ethnic Hungarians within three years.15Similar risks and potential damage may occur in future,16 because the European Court of Human Rights refused the complaints17 for ex lege loss of Slovakian citizenship obtaining voluntarily a second citizenship. While the governing parties were disappointed with this refusal, they denied accepting the motions submitted by the Hungarian Helsinki Committee to transpose correctly the UN Conventions on stateless persons and child’s rights into the citizenship law in 2011.18 Why is the claim of certain groups on the grounds of human rights obligations for acquisition less acceptable or lawful than the political promise of granting citizenship for the Hungarian diaspora? By the way, the referendum on preferential grant of Hungarian citizenship (5 December 2004) was unsuccessful initiated by the then political opposition (now governing power). In this way there is no consensus on granting citizenship for applicants without genuine link and without residence in the country as a panacea for kinminorities and emigrants. Regardless this fact the public financed press welcomed recent modification of the Act on Czech Nationality allowing dual citizenship for expatriated

14 The case of Mr. Boldoghy losing the Slovakian citizenship was widely published in the Hungarian press. His driving license, identity card, passport and address card were withdrawn and his access to social insurance was also hindered as he announced the acquisition of Hungarian citizenship although he was living in Slovakia without leaving. HVG, 22 November 2011. 15 MTI (Hungarian News Agency), 1 July 2013. 16 Some NGOs urged to change the Act in order to tolerate dual citizenship in Slovakia warning demonstrations or civil resistance to this end. See www.origo.hu, 10 August 2011. 17 Fehér and Dolnik v. Slovakia, ECtHR (2013) Appl. Nos. 14927/12 and 30415/12 (21 May 2013), 3rd Section as a Chamber of the Court. 18 The motion (24 October 2011) to Bill No. T/4699 initiated to grant Hungarian citizenship for children born in Hungary from stateless parents residing in the country and child born with unidentified parents within one year in accordance with the 1989 and 1961 Conventions. Although Hungary has been party to these treaties for long period, their implementation has been incomplete as the Ombudsman has highlighted several times.

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persons living abroad. ‘The acquisition of nationality for about two million Czech persons living abroad would become easier’ – cited Pavel Cizinsky the summary of changes.19 The total number of naturalised persons in Hungary between 1993-2010 was 134,887 by the Central Statistical Office. Comparing it to the number of applicants for accelerated naturalisation is outstanding as Table 2 demonstrates including the high rate of non-EU national applicants. Due to the minimal refusal in accelerated naturalisation, Hungary may attract hundred thousands of new Union citizens virtually (if they are not mobile) or actually to the EU (if they use Hungarian passport and right to free movement). Table 4.2 The share of total applicants for accelerated naturalisation (April 2013) by nationality20 Austria

142

USA

1 013

Belgium

17

Canada

787

Bulgaria

27

South-America

276

Cyprus

2

Australia

389

Czech Republic

35

Israel

1 126

Denmark

2

Ex-Soviet

1 327

Estonia

20

Finland

47

Asia

71

France

82

Africa

66

Greece

19

Ukraine

50 658

The Netherlands

10

Russia

1 284

Croatia

1 289

Ireland

7

Serbia

76 654

Poland

61

Other European

488

Latvia

3

Lithuania

2

Stateless

116

Luxemburg, Malta

0

UK

31

Germany

953

Italy

49

Portugal

11

Romania

283 866

Spain

13

19 ‘Kettős állampolgárság: a csehek is a magyar útra lépnek’, MTI (Hungarian News Agency), 1 July 2013. 20 Data on the basis of Népszava, 6 April 2013.

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Slovakia

1 515

Slovenia

144

Sweden

268

EU27

288,615 (68,3%)

Non-EU

134,255 (31,7%)

Total: 422,870

4.4

Conclusions

Despite the disputed principle of the genuine link in international customary law, the objective criteria of existing linkage of individual to a concrete state can be described through the relevant treaties on acquisition, loss, maintenance and recovery of nationality. Its explanation relates to the legal character of citizenship beyond its cultural, emotional and foreign affairs components. Multiple nationality and changes in sovereignty would test these listed requirements. We conclude that the successor state shall grant nationality for persons with proper, genuine connection to this state. The other objective components of acquisition, maintenance and loss of citizenship as determined in universal and regional treaties outline the genuine link between the state and the individual/applicant/migrant that reduce arbitrary state decision, discriminative legislation on nationality and improve the right to nationality avoiding statelessness, separation of family or disturbance of private life. The most relevant binding international instrument is the 1997 European Convention on Nationality. Summing up, we can say that domicile or habitual residence in Hungary is required in exceptional cases – in some hundred cases per annum – as a precondition in naturalisation. The most frequent criteria of acquisition of Hungarian citizenship has become the descent of an actual or prior – even far consanguinity of a – Hungarian citizen. The possible origin from Hungary and language skills are required but not tested while the constitutional knowledge of the applicant encumbers non-ethnic applicants.21 Family ties in acquisition shall be well certified. Loss of citizenship is based on intentional interruption of the legal bond to the state regardless private ties or relations of the (prior) national to the Hungarian society. The spreading dual citizenship and maintenance of Hungarian citizenship in diaspora and its descendant generations without effective links in great extent means reinterpretation of the Hungarian citizenship as an ethnic tie.22 All of these efforts may are

21 J. Tóth, ‘Ethnic Citizenship – Can It Be Obtained and Tested?’, in R. Van Oers et al. (Eds.), A Redefinition of Belonging?, Koninklijke Brill, The Netherlands, 2010, pp. 211-240. 22 J. Tóth and Zs. Körtvélyesi, ‘Naturalisation in Hungary: Exclusion by Ethnic Preferences’, 2 Open Citizenship (Summer 2011), ‘Exclusion and Discrimination’, pp. 54-73 (see: www.citizenshipforeurope.org).

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Judit Tóth serving a nation-building policy through also the law on nationality.23 The objective component of genuine link shall be ensured individually24 without effective integration support.25 J. Benedict interprets the nation as an imagined community that has become the generally accepted theory in the nationalism studies. Although the government is hardly in awareness in social science theories it states in legislative and political texts that unity of the Hungarian nation in culture, emotion and spirit exists. Regardless of many yield lines in the political, social and institutional life of diaspora and minority that have been documented by research since the end of the Austro-Hungarian Monarchy, this conceived unity appears also in the Fundamental Law (25 April 2011). If cultural, spiritual and emotional unity of Hungarians all over the world is real, the legal unification through the accelerated naturalisation is an inconsistency. Moreover, the pluralism of diaspora and kin-state policy26 developed since 1989 is killed by this unification instrument. The first step towards a monolithic regulation was the Act on the ethnic Hungarians’ certificate and rights (2001) and the second is the facilitated acquisition of the Hungarian citizenship without the requirements of residence and self-subsistence of each applicant in Hungary. The 2010 amendment of the Act on Hungarian Citizenship (Act No. XLIV of 2010) means a rupture in the notion of naturalisation that was applicable between 1879 and 2010 based on the physical presence and acceptable living of the applicant in the country.

23 J. Tóth, ‘Migrációs jogi környezet Magyarországon’, 3 Magyar Tudomány (2013), pp. 244-250. 24 J. Tóth, ‘Acuiring Nationality: Is It a Goal, a Tool, or an Assessment of Integration?’, in J. Niessen and T. Huddleston (Eds.), Legal Frameworks for the Integration of Third-Country Nationals, Martinus Nijhoff Publishers, Vol. 18 ‘Immigration and Asylum Law and Policy in Europe’, Leiden, Boston, 2009, pp. 159-193. 25 A. Örkény and M. Székelyi (Eds.), Az idegen Magyarország – a bevándorlók integrációja, MTA NKI – Eötvös Kiadó, Budapest, 2010. 26 J. Tóth, ‘Legal Regulation Regarding Hungarian Diaspora’, 1 Regio (2000)., pp. 37-64; J. Tóth, ‘Diaspora Politics: Programs and Prospects’, in I. Kiss and C. McGovern (Eds.), New Diasporas in Hungary, Russia and Ukraine: Legal Regulations and Current Politics, Open Society Institute/COLPI, Budapest, 2000, pp. 96141.

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5

Multiple Citizenship in Hungary: Recent Developments in a European Perspective

Tamás Wetzel* and Kinga Debisso**

5.1

Introduction

Nearly a quarter of all ethnic Hungarians live outside Hungary in neighbouring states as autochthonous minority groups, thus ‘the dimensions of Hungary’s kin-minority problem are unusually large even for Europe.’1 With the adoption of new symbolic and normative instruments, Hungary is striving for unifying the Hungarian nation over and above existing state borders. The idea of multiple citizenship emerged in Hungary as part of a wider European trend: in recent years it became clear that more and more states are moving towards a more tolerant approach to multiple citizenship.2 This trend is clearly visible both in Western and in Central and Eastern Europe, albeit for different reasons. The national policy of the new Hungarian government lays special emphasis on national integration and the institutionalisation of the relationship between the kin-state and ethnic Hungarians living abroad. The strategic aim of national policy is to support the integration of nationals living abroad to their own communities within the titular state, as well as enhancing their inclusion into the Hungarian nation by way of reinforcing the citizenship link between the minority groups and the Hungarian kin-state. In the framework of an increased engagement with kin-minority communities, the amendment of the Citizenship Law and the expansion of voting rights became a principal area of national policy. By February 2014, 575,000 persons applied for Hungarian citizenship and 510,000 of them chose to take the citizenship oath. With regard to external voting, 138,027 new Hungarian citizens applied for enrolment in the electoral register, and 118,263 were registered to vote at the election held on 6 April 2014. These data show that the extension of Hungarian citizenship by way of the simplified naturalisation process and the granting of voting rights for external citizens was much welcomed by Hungarians living beyond the state borders. * Deputy secretary of state responsible for Hungarians living abroad. E-mail: [email protected]. ** Lecturer, Péter Pázmány Catholic University, Faculty of Law; Legal adviser to the Hungarian Ombudsman for Future Generations. E-mail: [email protected]. 1 M.M. Kovács and J. Tóth, ‘Kin-State Responsibility and Ethnic Citizenship: The Hungarian Case’, in R. Bauböck et al. (Eds.), Citizenship Policies in the New Europe, Amsterdam University Press – IMISCOE Research, Amsterdam, 2009, p. 159. 2 See e.g. J.K. Blatter et al., Acceptance of Dual Citizenship: Empirical Data and Political Contexts, Working Paper Series ‘Glocal Governance and Democracy’, University of Lucerne, Lucerne, p. 1.

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5.2

The Increasing Acceptance of Dual Citizenship in Europe

Pursuant to European Union law3 and the European Convention on Nationality,4 it is up to the laws of each Member State to determine – in accordance with EU law – who are the citizens of the state. In the past 15-20 years, we wittness a clear global and European trend regarding the adoption of dual citizenship. The institution of dual citizenship is becoming more and more accepted in EU Member States as part of a general European liberalisation process.5 According to Marcel Szabó, this progress is based on the fact that citizenship has gradually lost its strictly national and ethnical characteristics within the European Union. Parallel to this, ‘Member State citizenship has lost its discriminatory function and its nature of a membership affording certain prerogatives, and has essentially evolved to become a legal bond reflecting the self-understanding of a political community.’6 The Hungarian dual citizenship initiative was based on fundamentally different arguments than those underlying the adoption of dual citizenship in the major Western European immigration states.7 While immigration states consider dual citizenship as an instrument for the inclusion and integration of labour immigrants, the focus of dual citizenship legislation in Hungary rests primarily on maintaining links with external co-ethnics,8 thus it reaffirms the connection between ethno-cultural nationality and citizenship as a counter-trend in Europe characteristic in Central and Eastern European countries.9 Reference to the link with co-ethnic minorities abroad was wholly absent from the communist-era legislation of Central and Eastern European states. Living abroad per se raised distrust in the Communist regimes, hence, dual citizenship remained a taboo until the change of the political system. As a consequence of historical shifts within these countries, such as the dissolution of Yugoslavia, members of the nations dispersed in the neighbouring states.10 Today, common national and cultural identity is recognised both in the constitution 3

Declaration No. 2 annexed to the Treaty of Maastricht on nationality of a Member State. See http://eur-lex. europa.eu/. 4 Council of Europe, European Convention on Nationality, 6 November 1997, ETS 166, Art. 3. 5 L. Trócsányi, ‘The Regulation of External Voting at National and International Level’, 16 Minority Studies, Trends and Directions of Kin-State Policies in Europe and Across the Globe (2013), p. 15. 6 M. Szabó, ‘International Law and European Law Aspects of External Voting with Special Regard to Dual Citizenship’, 16 Minority Studies, Trends and Directions of Kin-State Policies in Europe and Across the Globe, (2013), p. 44. 7 E. Herner-Kovács and Z. Kántor, ‘Kin-State Policies in Europe’, 16 Minority Studies, Trends and Directions of Kin-State Policies in Europe and Across the Globe (2013), p. 7. 8 Kovács and Tóth (2009), p. 12. 9 B. Fowler, ‘Fuzzing Citizenship, Nationalising Political Space: A Framework for Interpreting the Hungarian “Status Law” as a New Form of Kin-state Policy in Central and Eastern Europe’, in Z. Kántor et al. (Eds.), The Hungarian Status Law Syndrome: A Nation Building and/or Minority Protection, Sapporo, Hokkaido University Press, 2004, pp. 196-197. 10 C. Iordachi, ‘Dual Citizenship and Policies toward Kin-Minorities in East-Central Europe: A Comparison between Hungary, Romania, and the Republic of Moldova’, in Z. Kántor et al. (Eds.), The Hungarian Status

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Multiple Citizenship in Hungary: Recent Developments in a European Perspective

and the citizenship law of those Central and Eastern European states which accept the institution of dual citizenship.11 Such provisions can be found inter alia in the Croatian, Hungarian, Polish, Romanian, Serbian, Slovenian and Czech citizenship laws. The above is substantiated by the fact that even the rejective Czech Republic adopted an amendment to the Czech Citizenship Act which just recently permitted dual citizenship, moreover, it introduced a highly preferential naturalisation procedure. This means that, with the exception of certain cases, former citizens and their descendants may renounce their citizenship by a simple declaration.

5.3

Recent Changes to the Hungarian Citizenship Law

This major change of attitude towards Hungarian minorities was clearly expressed in the new Hungarian constitution, called the Fundamental Law, which came into effect on 1 January 2012.12 The previous constitution merely referred to Hungary’s sense of responsibility for the fate of Hungarians living abroad and the promotion of their relations with the motherland.13 By contrast, the current constitution stipulates that Hungary shall bear responsibility for the fate of Hungarians living beyond its borders, and shall facilitate the survival and development of their communities; it shall support their efforts to preserve their Hungarian identity, the assertion of their individual and collective rights, the establishment of their community

Law Syndrome: A Nation Building and/or Minority Protection, Sapporo, Hokkaido University Press, 2004, pp. 264-266. 11 Drawing from the above analysis, it is quite evident that the present situation in Central and Eastern Europe could hardly be foreseen one or two decades ago. Likewise, it would be a difficult task today to predict the future of European citizenship regimes. We could mention Scotland in the first place, where a referendum is soon to come on whether Scotland should be an independent country. Interesting questions may arise from a possible autonomy, with implications on the insitution of dual citizenship as well. Around 800,000 Scottish nationals live in England and ca. 400,000 British people resides in Scotland, which proves that the definition of identity still remains a difficult question. In Belgium, the ongoing conflict between the different linguistic communities, regions and the central government led to a political crisis. What happens if the governing authorities cannot preserve the state any further? Will the communities become separated or will some of them join one of the neighbouring countries? What will happen to the national minorities and what will be the status of Brussels? Spain may also find itself in a new position, since the current Catalan and Bask aspirations towards separation are becoming more intense. The regions’ situation, but also the out of region minorities and the question of identity further complicate the case. The Spanish law does not tolerate dual citizenship in general, however, Spain has concluded bilateral agreements mainly with Latin American states, which recognise dual citizenship. 12 A. Sobják, ‘The Implications of Hungary’s National Policy for Relations with Neighbouring States’, The Polish Institute of International Affairs, Policy Paper, No. 32, 2012, p. 2. 13 Art. 6(3) of Act XX of 1949 on the Constitution of the Hungarian Republic.

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self-governments, and their prosperity in their native lands, and shall promote their cooperation with each other and with Hungary.14 Drawing from the spirit of the Fundamental Law, the Hungarian Parliament adopted the Act XLIV of 2010 amending Act LV of 1993 on the Hungarian Nationality almost unanimously on 6 May 2010.15 By means of the new legislation the Parliament intended – contrary to the former Status Law16 – to provide the possibility for the great number of Hungarians who, due to historical reasons, live beyond the country’s borders, to request naturalisation on preferential terms irrespective of their place of residence. Pursuant to the Act, those Hungarian nationals are also entitled to apply for Hungarian citizenship who wish to remain in their country of origin without establishing a residence in Hungary, and are thus linked to Hungary exclusively by their nationality.17

5.4

The Simplified Naturalisation Procedure

Preferential naturalisation is a common practice in citizenship law and this kind of preferential treatment is not deemed discriminatory under international law. Several countries apply preferential naturalization on ethnic, cultural or linguistic grounds including citizenship for co-ethnics who are citizens of another state. In Hungary, anybody can apply for simplified naturalisation without nationality being taken into account. The Hungarian

14 Art. D of The Fundamental Law of Hungary, 25 April 2011. 15 The adoption of the Act was preceded by lively political debates and a referendum on dual citizenship held on 5 December 2004. The referendum question read as follows: ‘Do you think Parliament should pass a law allowing Hungarian citizenship with preferential naturalization to be granted to those, at their request, who claim to have Hungarian nationality, do not live in Hungary and are not Hungarian citizens, and who prove their Hungarian nationality by means of a ‘Hungarian identity card’ issued pursuant to Article 19 of Act LXII/2001 or in another way to be determined by the law which is to be passed?’ The novelty of the referendum lies in the fact that it raised the question of introducing non-residential citizenship to Hungarians living abroad on the grounds of Hungarian nationality, without the need to fulfill any residence requirement. 16 The Act LXII of 2001 on Ethnic Hungarians Living in Neighbouring Countries (usually called the Status Law) granted a set of cultural and economic rights to Hungarians living in adjacent states – with the exception of Austria – who are holding an ethnic identity card. The main purpose of the Act was to enable Hungarian minorities to stay and prosper in their titular state. Nevertheless, Hungary was accused by Romania of calling the sovereignty of the neighbouring states into question with the unilateral adoption of the Status Law going beyond the European standards and having extraterritorial implications. It is important to note that a few years later (in 2006 and 2007) Slovenia and Poland introduced new citizenship legislation serving a similar purpose. See C. Iordachi, ‘A nemzet újrarajzolt határai: a magyar ‘státustörvény’ és Románia kettős állampolgárságra vonatkozó politikája a Moldovai Köztársaságban’ [‘Redrawn borders of the nation: the Hungarian Status Law and Romania’s dual citizenship policy in the Moldovan Republic’], in Z. Kántor (Ed.), A státustörvény – Előzmények és következmények [The Status Law – Antecedents and Consequences], Budapest, Teleki László Alapítvány, 2002, p. 90. 17 Á. Töttős, ‘Állampolgársági feltételek – tényleg szuverén a tagállam?’ [‘Conditions of naturalisation – is the Member State really sovereign?’], Pécsi Határőr Tudományos Közlemények, No. 11, 2010, p. 218.

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rules are not rooted in ethnic conditions, as long as the applicant fulfills all criteria, the national identity will not be examined. In the course of simplified naturalisation, apart from the conditions of the traditional naturalisation procedure two further criteria need to be fulfilled, such as the proof of the citizenship of Hungarian ancestors or the substantiation18 of Hungarian origin and the proof of proficiency in the Hungarian language.19 Since the latest amendment of the Hungarian Citizenship Act has been introduced on 1 March 2013, the applicant is also eligible for preferential naturalisation, if he or she has been lawfully married for at least ten years to a person holding a Hungarian citizenship at the time the petition for citizenship was submitted, or lawfully married for at least five years to a person, holding a Hungarian citizenship at the time the petition for citizenship was submitted and they have a child from the marriage, provided that the applicant can prove proficiency in the Hungarian language.20 These conditions can obviously justify the necessary genuine link between the applicant and the state. Since Hungary tolerates multiple citizenship, applicants are not required to relinquish previous citizenship upon naturalisation.21 Dual citizens possessing another citizenship are entitled to the same rights and obligations as other nationals in the territory of Hungary, with the exception of employment in the police force or security bodies.22 The Parliament chose to codify those legal solutions which were already applied in other Central and Eastern European states. The new amendment may be compared to the current Romanian regulation,23 which allows primarily for Romanians in Moldova to acquire Romanian citizenship on preferential terms. A similar citizenship regulation has been adopted in Serbia,24 where citizenship may be obtained also on the basis of citizenship of ancestors without the criteria of residence in the country.25 Therefore in general, the new regulation did not bring about any serious discord within Central European relations, neither did it cause any tension in the context of pan-European or overseas connections. The only exceptions are Slovakia and the Ukraine. In response to the new Hungarian law, the Slovak Parliament passed an amendment of its Citizenship Act to limit dual citizenship by barring Slovak citizenship for those applying to another country for citizenship. Never-

18 This provision pertains to the Csango people, who were previously not allowed to obtain Hungarian citizenship on preferential terms. 19 Art. 4(3) of Act XLIV of 2010 amending Act LV of 1993 on the Hungarian Nationality. 20 Ibid. Art. 4(3a). 21 Sz. Pogonyi, ‘Naturalisation procedures for immigrants: Hungary’, EUDO Citizenship Observatory, No. 12, 2013, p. 3. 22 J. Tóth, ‘Aspects of Analyzing the Minority Problem’, in L. Szarka (Ed.), Hungary and the Hungarian Minorities: Trends in the Past and in Our Time, Atlantic Studies on Society in Change, No. 122, East-European Monographs. New York, Columbia University Press, 2004, pp. 223-244. 23 See Art. 10 of Act 21 of 1991 on Romanian citizenship. 24 See Act XC of 2007 amending Act CXXXV of 2004 on Citizenship of the Republic of Serbia. 25 Z.A. Sáska, ‘A sokat vitatott “Állampolgárság”’ [‘The most disputed “citizenship”’], 6(1) Hadtudományi Szemle (2013), p. 150.

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Tamás Wetzel and Kinga Debisso theless, it is worth noting that between 1997 and 2005 the Slovak citizenship regulation26 also contained a preferential naturalisation procedure for the non-Slovak citizens on the basis of Slovak nationality. As a consequence of the previous Slovak regulation, around 10,000 Slovak nationals living in Romania and Serbia were granted citizenship. Pursuant to the current Slovak citizenship rules, the citizen is ex lege deprived of citizenship upon naturalisation in another country. Up to this day about 640 people lost their Slovak citizenship, but only 42 were Hungarians, others obtained mostly Czech, German or Austrian citizenship. In addition to the Slovak reaction, the Ukraine did not welcome the Hungarian resolution either. Ukrainian law does not recognise multiple nationality, dual nationals are treated as citizens of Ukraine. In case dual citizens do not renounce Ukrainian citizenship upon acquiring another citizenship, they face potential fines.27 Consequently, applications for obtaining Hungarian citizenship were submitted primarily in Tanssylvania and Serbia. Previously formulated fears concerning migration eventually turned out to be unsubstantiated, showing that acquisition of citizensip in effect enhances identity and has a supportive impact on integration into the local communities. A considerable amount of people have already applied for the Hungarian citizenship in the past 3,5 years; more than 575,000 people, which is an outstanding number. According to Eurostat statistics, in 2011 the country with the highest naturalisation rate was Hungary.28 This is beyond doubt a highly relevant progress. We cannot forget that the regulation affects human lives, for instance that of the eldest applicant from New York, who asked for Hungarian citizenship at the age of 104 to become a Hungarian national for the third time in her life.

5.5

Implications for the Principle of Genuine Link

The principle of genuine link is the legal expression of the fact that the individual is more closely connected with the state whose citizen he or she is than with any other state.29 This principle does not per se exclude dual citizenship, however, its requirement of maintaining close and genuine economic, social and cultural relations renders it difficult to form equally close connections to several states at the same time. This means that the mere ethnic origin of Hungarian minorities does not constitute a proof of genuine link. Therefore, the Hungarian government has to stand up for its effective relationship with external citizens in all forms of international diplomacy. Otherwise, there is no possibility of ensuring the

26 27 28 29

See Act XL of 1993 on Citizenship of the Slovak Republic. Cf. www.politics.hu/20121005/hungary-expresses-dismay-over-ukraine-plan-to-penalize-dual-citizenship/. Cf. http://madde14.org/english/index.php?title=Eurostat_-_Migration_and_Migrant_Population_Statistics. See Liechtenstein v. Guatemala, 1955 WL 1 (I.C.J), 1955 I.C.J. p. 4.

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rights to diplomatic and consular protection and other citizens’ rights enshrined in international conventions.30 In light of the new Hungarian regulation and its similar European counterparts, we must raise the following question: what meaning does the genuine link principle hold in our increasingly globalised, deterritorialised world? As Bauböck asserts, ‘a strictly territorial conception of political community is not plausible in a world where large numbers of people move across international borders and settle abroad.’31 This phenomenon is described as the deterritorialization of citizenship.32 In light of this trend, the previous approaches seem to be outdated and anachronistic, they might have been appropriate a hundred years ago for the French-German relations or at the time of the iron curtain of the cold war era. If today a Hungarian citizen registers himself as a job-seeker in Vienna and establishes his residence there, can we speak about an existing genuine link between him and the Hungarian state? If his company sends him to one of the European or overseas offices every month, to which country does he most belong? It seems that a hundred year old Hungarian woman’s link should be considered stronger if she lived her entire life in her hometown in Slovakia, has already twice been a Hungarian citizen, always maintaining a strong connection with Hungarian culture and the nation, and now, she received the Hungarian citizenship for the third time. It is worth mentioning that the genuine link principle requires a close, factual and effective relationship between the state and the applicants for naturalisation, however, for non-dual citizens living abroad, the genuine and effective link is irrelevant.33 An interesting example of the difficulties arising from the interpretation of the genuine link principle in the 21st century is the new Slovak law, which limits dual citizenship to those who acquired it at birth or through marriage. As a consequence, those Hungarian nationals, who lost Slovak citizenship as a result of applying for naturalisation in Hungary, have to live as foreign citizens in their homeland, while Slovak citizens living abroad may uphold their citizenship. For instance, the 102 years old Ms. Ilonka Tamás, who was deprived of her Slovak citizenship after aquiring Hungarian citizenship, applied for registration in line with the provisions of Directive 2004/38/EC34 in order to get access to health care and 30 J. Tóth: ‘Miért nem lehet, ha szabad? A többes állampolgárság a nemzetközi és az európai közösségi jog felől’ [‘Why isn’t it possible if it is allowed? Multiple citizenship in the light of international law and European law’], Romániai Magyar Jogtudományi Közlöny, No. 2, 2004, p. 7. Available at http://rmjk.adatbank.transindex.ro/pdf/01KozjogToth.pdf. 31 R. Bauböck, ‘Stakeholder Citizenship and Transnational Political Participation: A Normative Evaluation of External Voting’, 75(5) Fordham Law Review (2007), p. 2419. 32 See e.g. L.L. Wong: ‘Home Away from Home? Transnationalism and the Canadian Citizenship Regime’, in P. Kennedy and V. Roudometof (Eds.), Communities Across Borders: New Immigrants and Transnational Cultures, New York, Routledge, 2002, pp. 175-176. 33 Kovács and Tóth (2009), p. 5. 34 European Parliament and Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States

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social services in Slovakia. Nevertheless, the Slovak legal system and authorities could not properly handle her application, since in this case the latest foreign place of residence was lacking. Ms. Ilonka Tamás, who lived in Rimaszombat all her life, did not have a previous Hungarian place of residence. Therefore, a quite absurd solution was found: her ‘new’ residence was Rimavská Sobota, Slovakia, while her latest foreign place of residence was indicated as Rimaszombat, Hungary.

5.6

Voting Rights of External Citizens

The Preamble of Act CCIII of 2011 on the election of Members of Parliament in Hungary stipulates that ‘Hungarian citizens living beyond the borders of Hungary shall be a part of the political community.’35 Previously, only external citizens maintaining a permanent residence in Hungary could vote and thus participate in the formation of Hungarian politics. Amendments to the Act on Electoral Procedure adopted in 2013 introduced the right to vote for citizens living abroad and lacking an in-country residence, however, only for the proportional part of the elections. External citizens may vote for the party lists after enrollment in the register of foreign voters.36 Out of the 575,000 dual citizens approximately 230.000 applied for registration,37 and 195.338 were registered as external voters.38 About 100.000 of the applications came from Romania, and almost 30.000 from Serbia. Eventually 128.000 eligible votes were cast, almost half of them by dual citizens living in Romania.39 In the new Hungarian electoral system, which follows the anglo-saxon model, Hungarian citizens vote in 106 constituencies with simple majority. The mandates originating from the foreign votes cannot play an operative role, the foreign voters might have an influence on 1 or 2 of the 199 mandates of the Hungarian Parliament, thus, their impact on the national election outcomes remains restricted. It is rather ‘a voice’, than a decisive political force. One of the most significant implications of the new regulation is its effect on Hungarian parties, which now have to take into serious consideration the interests of external citizens in their campaigns and politics.40 It is important to note, however, that in contrast to external citizens with permanent residence in Hungary, who are entitled to two votes at the parliamentary elections, nonresident voters may only vote for one party list. Some scholars have proposed in legal lit-

35 36 37 38 39 40

amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ 2004 L 158/77. See the Preamble of Act CCIII of 2011 on the elections of Members of Parliament of Hungary. Art. 12(3) of Act XXXVI of 2013 on Electoral Procedure. Cf. www.valasztas.hu/hu/ogyv2014/766/766_5_1.html. Cf. www.valasztas.hu/hu/ogyv2014/766/766_5_2.html. Cf. www.valasztas.hu/dyn/pv14/szavossz/hu/levjkv.html. Nemzetpolitikai Kutatóintézet (NPKI): ‘Állampolgárság, szavazás’ [‘Citizenship, voting’], available at http://bgazrt.hu/_files/NPKI/allampolgarsag_valasztas_elemzes_Z03.pdf (2014), p. 2.

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erature41 that the current Hungarian regulation contradicts the principle of equality of voting rights as some of the voters have two votes, while others possess only one vote. The above distinction could have been avoided by the creation of new constituencies for external citizens, as we can see inter alia in Croatia, Portugal, France and Italy.42 Nevertheless, the legislator has the right to establish further conditions and restrictions relating to the voting right of external citizens in accordance with Section 4 of Article XXIII of the Fundamental Law. This provision states that ‘[a] cardinal Act may provide that the right to vote and to be voted for, or its completeness shall be subject to residence in Hungary, and the eligibility to be voted for shall be subject to additional criteria.’ In light of this provision, the current regulation is difficult to be challenged.43 Even the Venice Commission did not formulate a critique of this distinction in its opinion on the Hungarian Electoral Procedure Act. According to the standpoint of the Venice Commission and the OSCE Office for Democratic Institutions and Human Rights, the limitation of the voting rights of non-resident external voters ‘to the proportional part of the elections seems justified on the ground of technical conditions to their full enfranchisement.’44 The joint opinion observes that the new regulation can be deemed a good practice as it extends voting rights to external citizens, thereby increasing the universality of suffrage in line with the Venice Commission’s Code of Good Practice in Electoral Matters which asserts that the right to vote may be accorded to citizens residing abroad.45

5.7

Conclusion

Central and Eastern European societies regarded EU citizenship as a means of solving kinminority problems stemming from the division of territorial and ethnic borders. However, this expectation was fulfilled only partially. EU citizenship facilitated merely the free

41 According to the analysis of András Jakab, the fact that non-resident citizens can only vote to party lists on the Hungarian parliamentary elections may contradict the principle of equality of voting rights enshrined in Section B of Art. 25 of the International Covenant on Civil an Political Right and Art. 3 of Protocol 1 of the European Convention on Human Rights. See A. Jakab: ‘A külföldön élő magyar állampolgárok választójoga egyenlőségének kérdése a választási törvény koncepciójában’ [‘The issue of the equality of voting rights of Hungarian citizens living abroad in the concept of the Act on Electoral Procedure’], Pázmány Law Working Papers, No. 38, 2011, p. 3. 42 International IDEA (Ed.), Voting from Abroad: The International IDEA Handbook, Stockholm, International IDEA, 2007, p. 28. 43 L. Trócsányi, ‘A külföldön élők szavazati jogáról’ [‘On the voting rights of citizens living abroad’], 4 Pro publico bono (2013), p. 91. 44 European Commission for Democracy Through Law (Venice Commission) and OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR), Draft Joint Opinion on the Act on the Elections of Members of Parliament of Hungary, Opinion No. 662/2012, CDL-AD(2012)012, Strasbourg, 18 June 2012, pp. 11-12. 45 Venice Commission, Code of Good Practice in Electoral Matters, CDL-AD(2002)023rev-e, Venice, 1819 October 2002, I. 1.1 c. v.

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movement of individuals, it provided safeguards for the enjoyment of human rights, however, the fundamental problem of national minorities was left unresolved. It is for this reason that the acceptance of dual citizenship was highly anticipated in this region. Dual citizenship was perceived a symbolic gesture, which nevertheless has to be filled with real content. The most important consequence of the acceptance of dual citizenship in Hungary is the strengthening of the specific relationship between Hungarian minority groups and their kin-state: the legal bond of citizenship enhances their identity and provides protection against assimilation. The symbolic relation with Hungarians living abroad thus became legally acknowledged.46 The neighbouring countries and some international organisations expressed concerns regarding the recent changes in Hungarian Citizenship Law and the Electoral Procedure Act granting citizenship and the right to vote to Hungarian nationals living abroad. However, the initial fears seem to have faded, since Hungary followed a legislation path that has been paved by numerous European countries decades ago. Inspired by the Latin American kin-state model, these countries – including France, Italy, Portugal, Croatia and Romania – also allow for their external nationals to apply for citizenship and ensure the right to vote to citizens abroad upon certain formal conditions, such as previous registration.47 Dual integration of kin-minority groups may invoke the possibility of the weakening of Hungarian national groups’ connections with their titular state and local communities due to the close ties maintained with the Hungarian kin-state. However, the practice shows that applying for citizenship, taking the citizenship oath and voting at the elections all have a mobilising force which support community-building and striving for local goals.48 The main objective of Hungarian national policy and the extension of citizenship is the promotion and fostering of self-organisation and community development of external Hungarian groups.49 The unexpectedly high number of applications for citizenship and for registration to vote prove that the more inclusive citizenship policy exercised by the Hungarian government in recent years succeeded in strengthening the national identity and the cohesion of Hungarian nationals living abroad.

46 Á. Antal and S. Tamás, ‘A kettős állampolgárság következményei és hatásai a külhoni magyar nemzetközösségek helyzetére és megítélésére’ [‘The consequences and effects of dual citizenship on the situation and judgement of Hungarian national communities living abroad’], 18(34) Magyar Kisebbség (2013), pp. 159-160. 47 Trócsányi (2013), p. 87. 48 Nemzetpolitikai Kutatóintézet (NPKI): ‘Állampolgárság, szavazás’ [‘Citizenship, voting’], available at http://bgazrt.hu/_files/NPKI/allampolgarsag_valasztas_elemzes_Z03.pdf (2014), p. 2. 49 Ibid., p. 3.

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The Prohibition of Arbitrary Deprivation of Nationality under International Law and EU Law: New Perspectives

Tamás Molnár*

6.1

Setting the Scene: The Relevance of the Issue

Arbitrary deprivation of nationality is of serious concern to the international community. Such acts of the State effectively place the persons concerned in a ‘legal vacuum’ regarding the enjoyment of their human rights and fundamental freedoms,1 in particular in areas of education, housing, employment, health and social security since these persons are put in a situation of high vulnerability to human rights violations. In case of denationalization, the persons affected become non-citizens with respect to the State that deprived them of their nationality (either still possessing another nationality, and consequently becoming aliens in their motherland, or in the worst case the individual is rendered stateless). Persons arbitrarily deprived of nationality may thus be exposed to poverty, social exclusion, and limited legal capacity.2 Nevertheless, this aspect of nationality law is somewhat neglected by legal and socio-political literature. The history and current practice as well as the magnitude of the problem would nonetheless require closer attention and concerted action of the international community, but principally tangible efforts from the individual States. Even after the creation of the United Nations, in the last couple of decades, racial and ethnic minorities have been arbitrarily stripped of their nationality and rendered stateless in a considerable number of countries around the world.3 *

1

2 3

Adjunct Professor, Corvinus University of Budapest, Institute of International Studies; Head of Unit, Ministry of Interior of Hungary, Department of EU Cooperation, Migration Unit. E-mail: [email protected]. This article was supported by the János Bolyai Research Scholarship of the Hungarian Academy of Sciences. This is impressively illustrated by the Report of the UN Secretary-General of 19 December 2011, which analyses the impact of arbitrary deprivation of nationality on the enjoyment of human rights, including civil, political, economic, social and cultural rights (A/HRC/19/43). UN Human Rights Council, resolution 20/5 of 16 July 2012, operative Para. 7. Examples for such en masse denationalization include the following: 1) In Bhutan, extremely burdensome requirements of successive nationality acts in 1977 and 1985 resulted in the arbitrary deprivation of nationality of over 100,000 southern Bhutanese of Nepali origin and their forced removal from Bhutan to Nepal in the early 1990s. 2) Tens of thousands of black Mauritanians were stripped of citizenship documents,

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The present paper first highlights the role of international law in regulating nationality (Part 6.2) and the international legal framework prohibiting the deprivation of nationality, starting with human rights conventions in which this prohibition appears as the negative aspect of everyone’s right to nationality; examining thereafter specific statelessness conventions such as the 1961 UN Convention on the Reduction of Statelessness or the 1997 European Convention on Nationality (Part 6.3). Subsequently, it continues to delineate different situations amounting to arbitrariness when deciding on the withdrawal of a nationality (Part 6.4), including the discussion of possible ex post effective remedies (Part 6.5). As a relatively new phenomenon, even European Union (EU) law has not been left untouched by this issue. Despite the lack of explicit EU competences in this regard, the obligation not to arbitrarily deprive someone’s nationality has been completed with EU law requirements, principally stemming from the fundamental character of EU citizenship (Part 6.6). Remarkably, convergences between UN (soft) law and EU (case) law can be observed in the light of the recent developments (Part 6.7).

6.2

State Sovereignty and Regulating Nationality: The Basics

Even if ‘nationality’ is an issue of interest for public international law, its definition and content are still primarily determined by the States.4 Under international law, the traditional point of departure is that nationality matters (e.g. acquisition, loss, renunciation and deprivation of nationality) fall within the domestic jurisdiction (domaine resérvé) of States. This doctrine was already reaffirmed by the Permanent Court of International Justice (PCIJ) in its advisory opinion on Nationality Decrees Issued in Tunis and Morocco (1923) as follows: ‘in the present state of international law, questions of nationality are, in the opinion of the Court, in principle within this reserved domain’.5 However, the PCIJ did not stop there and left a door open, having also referred to possible developments of

4

5

then forcibly expelled from their country in 1989, who have been living in a situation of de facto statelessness in Senegal ever since. 3) In Zimbabwe, a nationality law adopted in 2002 obliged anyone presumed to have any other nationality to renounce the claim to that second nationality or else lose Zimbabwean citizenship. This new law was applied specifically against particular ethnic groups with surnames considered ‘nonZimbabwean.’ Source: Open Society Institute, Citizenship and Equality in Practice: Guaranteeing Non-Discriminatory Access to Nationality, Protecting the Right to be Free from Arbitrary Deprivation of Nationality and Combating Statelessness, November 2005, pp. 10-11. See for instance P. Weis, Nationality and Statelessness in International Law, Stevens & Sons, London, 1956, pp. 29-32; H.F. van Panhuys, The Rôle of Nationality in International Law, A.W. Sijthoff, Leiden, 1959, pp. 37-38; M.N. Shaw, International Law, 5th edition, Cambridge University Press, Cambridge, 2003, pp. 574, 585; I. Brownlie, Principles of Public International Law, Oxford University Press, Oxford, 2003, pp. 373-374; O. Dörr, ‘Nationality’, in W. Rüdiger (Ed.), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2012. Nationality Decrees Issued in Tunis and Morocco (French Zone) on 8th November, 1921, PCIJ, Ser. B. No. 4, 1923, Para. 40.

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international law in the course of time when it added that ‘[t]he question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations.’6 Furthermore, not only may the future developments in international law have an impact on this issue, but already at the time of the dispute the Court did not consider this State prerogative to be absolute when it stated: ‘in a matter which, like that of nationality, is not, in principle, regulated by international law, the right of a State to use its discretion is nevertheless restricted by obligations which it may have undertaken towards other States’7 and identified limits fixed by international law, embracing both customary law and general as well as particular treaty law.8 A couple of years later the president of the Mexican-French Claims Commission reconfirmed this approach in the Georges Pinson case (1928) holding that notwithstanding States’ exclusive domestic jurisdiction in matters of nationality, this sovereignty can be limited by customary and treaty law rules of international law.9 This position is now settled case-law as evidenced by the case-law of other human rights courts (e.g. the Inter-American Court of Human Rights).10 It was the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws11 that first codified the above approach, which – besides reconfirming nationality issues as belonging to the realm of States’ domestic jurisdiction – set forth certain limitations stemming from international law on invoking a certain nationality visà-vis other States, i.e. on the eventual effects of nationality on the international plane. By virtue of Articles 1 and 2 of the 1930 Hague Convention, [i]t is for each State to determine under its own law who are its nationals. This law shall be recognised by other States in so far as it is consistent with interna6 7 8 9

Ibid., Para. 41 (emphasis added). Ibid., Para. 41 (emphasis added). Ibid., Para. 38. Georges Pinson (France) v. United Mexican States, 19 October 1928, UN Reports of International Arbitral Awards, Volume V, p. 364. In the French original: ‘[…] tout Etat est en principe, compétent pour fixer souverainement les conditions dont dépendront l’acquisition et la perte de sa nationalité et que tout tribunal international doit naturellement (sauf le cas de restrictions posées à la souveraineté des Etats litigants par le droit international écrit ou coutumier) acquiescer aux réglementations qu’ont fixées les Etats en question.’ 10 See e.g. Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica, InterAmerican Court of Human Rights, Advisory Opinion OC-4/84 of January 19, 1984, Series A No. 4, Para. 32: ‘[…] despite the fact that it is traditionally accepted that the conferral and regulation of nationality are matters for each state to decide, contemporary developments indicate that international law does impose certain limits on the broad powers enjoyed by the states in that area, and that the manners in which states regulate matters bearing on nationality cannot today be deemed within their sole jurisdiction; those powers of the state are also circumscribed by their obligations to ensure the full protection of human rights.’ Reiterated in case of the Yean and Bosico Children v. The Dominican Republic, Inter-American Court of Human Rights, Judgment of September 8, 2005, Series C No. 130, Para. 138. 11 Convention on Certain Questions Relating to the Conflict of Nationality Laws, 13 April 1930, League of Nations, Treaty Series, Vol. 179, No. 4137, p. 89.

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tional conventions, international custom, and the principles of law generally recognised with regard to nationality. […] Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State. In other words, how a State exercises its right to determine its nationals should conform to the relevant rules of international law, at least if such a nationality is meant to be accepted and considered as valid by other States. Violating those restrictions stemming from international law, which are aptly called ‘negative international nationality law’ by Paul Weis,12 will not invalidate the given nationality, but excludes its opposability against other States and prevents invoking it before international judicial fora as well as authorities of other States are entitled not to recognize it.13 We can conclude that the 1930 Hague Convention codified customary international law in this regard,14 and subsequent universal15 or regional16 conventions also follow this fundamental principle. Despite the fact that acquisition and loss of nationality are essentially governed by domestic legislation, today their regulation is of direct concern to the international legal order.17 ‘The competence of States in this field may be exercised only within the limits set by international law’ – opined the International Law Commission (ILC).18 Throughout the 20th century, the limitations deriving from international treaties, customary law and principles of law generally recognized with regard to nationality have been enriched mainly due to the gradual expansion of the international protection of human rights. This ‘humanrightization’ of international law triggered a paradigm shift also in this domain. As the Inter-American Court of Human Rights put it expressively, ‘the classic doctrinal position, which viewed nationality as an attribute granted by the State

12 Weis, 1956, p. 92. 13 See also e.g. Dörr, 2012, Para. 4. 14 Weis, 1956, p. 65; C. Joseph, Nationality and Diplomatic Protection. The Commonwealth of Nations, A.W. Sijthoff, Leyden, 1969, p. 8; S. Hall, ‘The European Convention on Nationality and the Right to Have Rights’, European Law Review, December 1999, p. 589; M. Ganczer, Állampolgárság és államutódlás, Dialóg Campus, Budapest, 2013, p. 65. 15 Convention on the Nationality of Married Women of 20 February 1957 (UNTS No. 4468, Vol. 309, p. 65), entered into force on 11 August 1958. 16 1997 European Convention on Nationality (CETS No. 166). Its Art. 3 is almost identical with the definition contained in Art. 1 of the 1930 Hague Convention (‘1. Each State shall determine under its own law who are its nationals. 2. This law shall be accepted by other States in so far as it is consistent with applicable international conventions, customary international law and the principles of law generally recognised with regard to nationality’). 17 Human Rights and Arbitrary Deprivation of Nationality, Report of the Secretary-General. A/HRC/13/34, 14 December 2009, Para. 19. 18 Draft Articles on Nationality of Natural Persons in relation to the Succession of States with commentaries (Yearbook of the International Law Commission, 1999, Vol. II, Part 2, p. 24).

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to its subjects, has gradually evolved to a conception of nationality which, in addition to being the competence of the State, is a human right.’19 In the same vein, the International Law Commission in its commentaries to the Draft Articles on the Nationality of Natural Persons in relation to Succession of States highlighted that the evolution of international human rights law has significantly altered the classical doctrine on the preponderance of States’ interests over the interests of individuals.20 The prohibition of arbitrary deprivation of nationality counts as one of the above restrictions imposed by international human rights law. The right to a nationality as a core human right,21 as some denote: ‘the right to have rights’,22 implies the right of each individual to acquire, change and retain a nationality. The right to retain a nationality is intrinsically linked to the prohibition of arbitrary deprivation of nationality (the latter might be conceived as a precondition of the former, affording also protection to it).23 The explicit and implicit general prohibition of arbitrarily depriving someone’s nationality, considered now as a rule of general customary international law,24 is found in numerous international instruments. The next part of the paper gives a tour d’horizon of such sources of law. 19 Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica, Inter-American Court of Human Rights, Advisory Opinion OC-4/84 of January 19, 1984. Series A No. 4, Para. 33. 20 Draft Articles on Nationality of Natural Persons in relation to the Succession of States with commentaries (Yearbook of the International Law Commission, 1999, Vol. II, Part 2, p. 24). 21 See first, the 1948 Universal Declaration of Human Rights (Art. 15 – right to a nationality); then a series of subsequent universal treaties: 1965 Convention on the Elimination of All Forms of Racial Discrimination (Art. 5 – non-discrimination; right to a nationality); the 1966 International Covenant on Civil and Political Rights (Art. 24 – right to acquire nationality); the 1979 Convention on the Elimination of All Forms of Discrimination against Women (Art. 9 – non-discrimination, re-acquisition, change, retention of nationality, nationality of children); the 1989 Convention on the Rights of the Child (Arts. 7 and 8 – birth registration, right to acquire nationality, avoidance of statelessness); the 2006 Convention on the Rights of Persons with Disabilities (Art. 18 – right to acquire and change a nationality) or other regional human rights treaties such as the 1969 American Convention on Human Rights; the 1990 African Charter on the Rights and Welfare of the Child; the 1995 Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms; or the 2004 Revised Arab Charter on Human Rights. 22 ‘Citizenship is man’s basic right for it is nothing less than the right to have rights’ (United States Supreme Court Chief Justice Earl Warren, in Trop v. Dulles, Secretary of State et al., 356 US 86, 1958; quoted e.g. in Independent Commission on International Humanitarian Issues, Winning the Human Race?, 1988, p. 107; M. Achiron, Nationality and Statelessness, A Handbook for Parliamentarians, Inter-Parliamentary Union – United Nations High Commissioner for Refugees, Geneva, 2005, back cover; or L. van Waas, Nationality Matters: Statelessness under International Law, Intersentia, Antwerpen, 2008, p. 217. 23 Human rights and arbitrary deprivation of nationality, Report of the Secretary-General, A/HRC/13/34, 14 December 2009, Paras. 21, 26. 24 See e.g. Open Society Justice Initiative, 2005, pp. 2-3; M. Manly and L. van Waas, ‘The Value of the Human Security Framework in Addressing Statelessness’, in A. Edwards and C. Ferstman (Eds.), Human Security and Non-Citizens, Cambridge University Press, Cambridge, 2010, p. 63; Dörr, 2012, Para. 32; UN High Commissioner for Refugees, Expert Meeting – Interpreting the 1961 Statelessness Convention and Avoiding Statelessness resulting from Loss and Deprivation of Nationality (‘Tunis Conclusions’), March 2014, Para. 2. In the Hungarian legal scholarship, e.g. A. Lőrincz, ‘Az állampolgársághoz való jog a nemzetközi jogban. A nemzeti szuverenitástól a mindenkit megillető emberi jogig’, 13 Romániai Magyar Jogtudományi Közlöny (2008), pp. 41-48. Nonetheless, some other authors are not convinced about its customary international law

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6.3

The Evolution of the International Law Framework

Starting with the universal level, the very first source of this cornerstone principle corollary to the right to a nationality is the 1948 Universal Declaration of Human Rights (UDHR).25 Its Article 15(2) contains the famous expression of the general rule: ‘No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality’. Further United Nations (UN) human rights conventions incorporated this fundamental norm as well, either implicitly [e.g. 1957 Convention on the Nationality of Married Women,26 1965 Convention on the Elimination of All Forms of Racial Discrimination (CERD),27 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),28 or 1989 Convention on the Rights of the Child (CRC)29]; or, more recently, explicitly [2006 Convention on Rights of Persons with Disabilities (CRPD)30]. This general legal framework on the international protection of human rights is complemented by a specific instrument,

25

26

27

28

29

30

character, arguing that “the only limit imposed by customary international law on States’ powers to withdraw nationality is the one banning measures of denaturalization based solely on racial or religious reasons since such acts would infringe the customary law rule on non-discrimination on grounds of race and religion.” (R. Hofmann, ‘Denaturalization and Forced Exile’, in W. Rüdiger (Ed.), The Max Planck Encyclopedia of Public International Law, Oxford, University Press, 2013, Para. 17). Universal Declaration of Human Rights, adopted by General Assembly Resolution 217 A(III) of 10 December 1948. The UDHR is available in 369 language variations on the website of the Office of the United Nations High Commissioner for Human Rights. Convention on the Nationality of Married Women of 20 February 1957 (UNTS No. 4468, Vol. 309, p. 65), entered into force on 11 August 1958. Arts. 1-2: ‘Each Contracting State agrees that neither the celebration nor the dissolution of a marriage between one of its nationals and an alien, nor the change of nationality by the husband during marriage, shall automatically affect the nationality of the wife. […] Each Contracting State agrees that neither the voluntary acquisition of the nationality of another State nor the renunciation of its nationality by one of its nationals shall prevent the retention of its nationality by the wife of such national.’ International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (UNTS No. 9464, Vol. 660, p. 195), entered into force on 4 January 1969. Art. 5 lit. (d) (iii): ‘[…] States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: […] (d) Other civil rights, in particular: […] The right to nationality.’ Convention on the Elimination of All Forms of Discrimination against Women of 18 December 1979 (UNTS No. 20378, Vol. 1249, p. 13), entered into force on 3 September 1981. Art. 9(1): ‘[…] neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless […].’ Convention on the Rights of the Child of 20 November 1989 (UNTS No. 27531, Vol. 1577, p. 3), entered into force on 2 September 1990. Art. 8(1): ‘States Parties undertake to respect the right of the child to preserve his or her identity, including nationality […] without unlawful interference.’ Convention on the Rights of Persons with Disabilities of 13 December 2006 (UNTS No. 44910, Vol. 2515, p. 3), entered into force on 3 May 2008. Art. 18(1) lit. (a) expressly stipulates: ‘1. States Parties shall recognize the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others, including by ensuring that persons with disabilities: […] (a) Have the right to acquire and change a nationality and are not deprived of their nationality arbitrarily or on the basis of disability.’

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the 1961 UN Convention on the Reduction of Statelessness (CRS),31 which deals specifically with the prohibition of arbitrary deprivation of nationality in the context of statelessness. In particular, Article 8(1) of the 1961 Convention enshrines this ban by stating that ‘Contracting States shall not deprive a person of his nationality if such deprivation would render him stateless’. If we turn our attention to de lege ferenda proposals of universal character, the same obligation is reconfirmed in different contexts. First, the ILC’s Draft Articles on the nationality of natural persons in relation to state succession (1999) lays down the prohibition of arbitrary decisions concerning nationality, including not to be arbitrarily deprived of the nationality of the predecessor State when state succession occurs (Article 16).32 Thereafter, the ILC aimed at regulating another aspect of this harsh human rights violation, outlawing the deprivation of nationality for the sole purpose of expulsion in the Draft Articles on the expulsion of aliens, adopted in second reading in August 2014 (Article 8).33 Its Commentaries make it clear why: such a deprivation of nationality, insofar as it has no other justification than the State’s desire to expel the individual, would be abusive, indeed arbitrary within the meaning of Article 15(2) UDHR.34 An interesting question arises here, namely whether the above principles of law enshrined in the Draft Articles have already or will in the near future attain the status of customary international law, elaborating further the content of the generally accepted prohibition of arbitrary deprivation of nationality. In addition, a massive body of soft law has been developed echoing the above hard law obligations, such as UN General Assembly resolutions adopted since the mid-‘90s,35 burgeoning resolutions of the former UN Commission on Human Rights36 and the Human Rights Council,37 general comments and recommendations of different treaty bodies,38 as 31 Convention on the Reduction of Statelessness of August 30, 1961 (UNTS No. 14458, Vol. 989, p. 175), entered into force on 13 December 1975. 32 Draft Articles on Nationality of Natural Persons in relation to the Succession of States with commentaries (1999), p. 37. 33 Report of the International Law Commission, Sixty-sixth session (5 May–6 June and 7 July–8 August 2014), General Assembly Official Records, Sixty-ninth session, Supplement No. 10, A/69/10, Chapter IV, p. 33. 34 Ibid. 35 UNGA Resolution 50/152 of 21 December 1995. Office of the United Nations High Commissioner for Refugees (A/RES/50/152), Para. 16; UNGA Resolution 54/146 of 17 December 1999. Office of the United Nations High Commissioner for Refugees (A/RES/54/146), Para 22. 36 E.g. Resolution on Human Rights and Arbitrary Deprivation of Nationality, 1997/36, 11 April 1997; Resolution on Human Rights and Arbitrary Deprivation of Nationality, 2005/45, 19 April 2005. 37 E.g. UN Human Rights Council Resolutions 7/10 of 27 March 2008 (A/HRC/RES/7/10); 10/13 of 26 March 2009 (A/HRC/RES/10/13); 13/2 of 24 March 2010 (A/HRC/RES/13/2); 20/5 of 16 July 2012 (A/HRC/RES/20/5). 38 See for instance UN Human Rights Committee, CCPR General Comment No. 27: Article 12 (Freedom of Movement), 2 November 1999, CCPR/C/21/Rev.1/Add.9; UN Committee on the Elimination of Racial Discrimination, CERD General Recommendation XXX on Discrimination Against Non Citizens, 1 October 2002; or UN Committee on the Elimination of Discrimination Against Women, CEDAW General Recommendation No. 21: Equality in Marriage and Family Relations, 1994, CEDAW/C/1995/7, Annex, Appendix, chapter III

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well as a series of conclusions adopted by the Executive Committee of the High Commissioner’s Programme, United Nations High Commissioner for Refugees (UNHCR ExCom).39 Examining the regional level of the international law framework, the regional structures in almost every continent devote specific attention to this matter of fundamental importance. Starting with Europe, the most important instrument is the 1997 European Convention on Nationality (ECN), which repeats the general prohibition set forth in the UDHR: ‘no one should be arbitrarily deprived of his or her nationality.’40 This is accompanied by soft law documents emanating either from the Committee of Ministers or the Parliamentary Assembly of the Council of Europe, among which the best known is Recommendation No. R (1999) 18 of the Committee of Ministers on the avoidance and the reduction of statelessness (1999) laying down further requirements in order to limit deprivation of nationality and mitigate its negative effects.41 Numerous other regional human rights conventions incorporated a very similar provision (the 1969 American Convention on Human Rights,42 the 1995 Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms,43 and the 2004 Revised Arab Charter on Human Rights44). Interestingly, in the 2004 Revised Arab Charter on Human Rights it is not ‘arbitrary’ deprivation which is forbidden but if someone’s nationality is deprived ‘without a legally valid reason.’ Summing up the above, the prohibition of arbitrary deprivation of nationality is now a well-established customary norm of international law, declared by a complex set of international instruments, on different levels of regulation. Given that this general prohibition represents the negative aspect of the right to a nationality, it is submitted that under international law as it stands today, the prohibition of arbitrary deprivation of nationality qualifies as a fundamental human right as well, protecting the individual from the unjustified and drastic interference into his/her identity by the State of nationality.

39 40 41 42 43 44

B. These general comments and recommendations may be conceived as the authentic interpretation of the respective conventions. UNHCR ExCom conclusions No. 65 (XLII) 1991; No. 78 (XLVI) 1995; No. 102 (LVI) 2005; and No. 106 (LVI) 2006 (available at: www.unhcr.org/41b4607c4.pdf, last accessed on 1 July 2014). Art. 4 lit. c. Point I c., point II. C. c. Art. 20(3): ‘No one shall be arbitrarily deprived of his nationality or of the right to change it.’ Art. 24(2): ‘No one shall be arbitrarily deprived of his citizenship or of the right to change it.’ Art. 29(1): ‘Every person has the right to a nationality, and no citizen shall be deprived of his nationality without a legally valid reason.’

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6.4

The Prohibition of Arbitrary Deprivation of Nationality under International Law and EU Law: New Perspectives

Meaning and Content of the ‘Prohibition of Arbitrary Deprivation of Nationality’

Before going into the in-depth analysis of the meaning of the ‘prohibition of arbitrary deprivation of nationality’ as well as exploring its content, it is first necessary to define the notion of ‘deprivation of nationality’. ‘Deprivation’ as such always means an act without the request/consent of the person concerned. While deprivation of nationality does not comprise loss of nationality voluntarily requested by the individual concerned (renunciation), it comprises all other forms of involuntary loss of nationality (in other words: denaturalization45 or denationalization).46 Resolutions of the UN Human Rights Council clearly established that the term ‘deprivation’ in the UDHR includes both arbitrary ex lege loss (when denaturalization occurs automatically by operation of law) and individual acts of deprivation taken by administrative or judicial authorities.47 A different approach is taken by the 1961 UN Convention on the Reduction of Statelessness. The Convention makes an explicit distinction when using both terms: ‘loss of nationality’ describes withdrawal of nationality which is automatic, ex lege (Articles 5-7), and the term ‘deprivation’ denotes situations where the withdrawal of nationality is initiated by the authorities of the State (Article 8). According to UNHCR, the category of ‘withdrawal of nationality’ in the broad sense refers to both loss and deprivation of nationality.48 Against this backdrop, I understand ‘deprivation’ in the broader meaning of the word, therefore, in this paper ‘deprivation of nationality’ is interchangeable with ‘withdrawal of nationality’ or ‘involuntary loss of nationality’. It covers all forms of denaturalization made by the State, such as automatically depriving a person or a group of people (en masse) of a nationality by operation of law (e.g. Slovakia’s nationality law sanctioning acquisition of another nationality by deprivation of Slovak nationality); arbitrarily precluding a person from retaining a nationality, particularly on discriminatory grounds; individual acts taken by administrative or judicial authorities withdrawing someone’s nationality49; or even situations where there is no formal act of State but the practice of the competent authorities shows with no doubt that they have ceased to consider a particular individual or group of people

45 For the use of this term, see e.g. Hofmann, 2013, Para. 1. 46 Arbitrary deprivation of nationality: report of the Secretary-General. A/HRC/10/34, 26 January 2009, Para. 49; Human Rights and Arbitrary Deprivation of Nationality, Report of the Secretary-General. A/HRC/13/34, 14 December 2009, Para. 23; in the legal literature van Waas, 2008, p. 34; and implicitly Dörr, 2012, Para. 35. 47 R. de Groot, ‘Survey on Rules on Loss of Nationality in International Treaties and Case Law’, CEPS Paper in Liberty and Security in Europe, No. 57/August 2013, p. 1; UNHCR, ‘Tunis Conclusions’, Para. 9. 48 Ibid., Para. 9. 49 Human Rights and Arbitrary Deprivation of Nationality, Report of the Secretary-General. A/HRC/13/34, 14 December 2009, Para. 23.

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as national(s) (e.g. failure to issue or renew identity documents without any explanation, confiscation or destruction of identity documents).50 At the very outset, it shall be stressed that there is no absolute ban under international law regarding deprivation of nationality. Denaturalization is permitted under certain conditions, thus, States still possess a certain freedom to act in withdrawing one’s nationality. However, if an act of deprivation is arbitrary, it per se violates international law. What exactly amounts to ‘arbitrary’ deprivation of nationality is unclear, since neither the UDHR, nor the relevant universal or regional treaties on human rights elaborate on this issue. Other sources of law and legal scholarship should thus be considered thoroughly so as to find legally tenable answers. Below, I shall analyse and outline the main forms and scenarios of arbitrary deprivation of nationality which are by definition forbidden.

6.4.1

Deprivation of Nationality against the Law: Arbitrary

First of all, in light of the requirements stemming from the rule of law, deprivation of nationality must have a firm legal basis in national law, as a precondition to making this harsh intervention into a person’s life predictable. In other words, in order to avoid an allegation of arbitrariness, nationality may, first and foremost, only be deprived as prescribed by law.51 It is widely recognized that legal provisions relating to the withdrawal of nationality may neither be based on analogia iuris or legis, nor be enacted or applied with retroactivity.52 Furthermore, when interpreting the ordinary meaning53 of ‘arbitrariness’, this term is not to be equated merely with ‘against the law’, but rather a broader meaning should be afforded to it, encompassing also an abuse of power that is indeed achieved through the law. By virtue of the general comments of the Human Rights Committee (HRC) of the 1966 International Covenant on Civil and Political Rights (ICCPR), the expression ‘arbitrary interference’ could also extend to interference provided for by domestic law.54 In the HRC’s view, the introduction of the concept of arbitrariness was intended to guarantee that even formally lawful interference, in conformity with domestic law, shall be in accordance with the provisions, aims and objectives of the ICCPR, and

50 51 52 53

UNHCR, ‘Tunis Conclusions’, Para 11. van Waas, 2008, p. 94. Ibid., Para. 16. See Art. 31(1) of the 1969 Vienna Convention on the Law of the Treaties (UNTS No. 18232, Vol. 1155, p. 331), entered into force on 27 January 1980. 54 UN Human Rights Committee, CCPR General Comment No. 16: Art. 17 (Right to Privacy), The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, 8 April 1988, Para. 4; UN Human Rights Committee, CCPR General Comment No. 27: Article 12 (Freedom of Movement), 2 November 1999, CCPR/C/21/Rev.1/Add., Para. 21.

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should always be reasonable given the particular circumstances.55 As a consequence, the concept of ‘arbitrariness’ includes, beyond the ‘unlawful’, also the elements of inappropriateness, injustice, illegitimacy or lack of predictability.56 This broad concept is necessary, otherwise an interpretation of arbitrary deprivation as amounting only to illegal deprivation would make it far too easy for States to circumvent the aim of this prohibition (i.e. to effectively protect individuals).57 The HRC further indicated that the notion of arbitrariness applies to the action of all State organs (legislative, administrative/executive or judicial).58

6.4.2

Deprivation of Nationality in Violation of Procedural Standards: Arbitrary

In the preceding point I examined the most basic formality to be met for a decision not to be deemed arbitrary, i.e. that such a decision of deprivation must conform to the law in force. As Laura van Waas puts it: ‘This is an important criterion because it helps to ensure that the decisions of the authority are foreseeable.’59 Besides this requirement of being in conformity with domestic law, there are other procedural standards, developed mainly by international human rights law, which must be met. Procedural safeguards are essential to prevent abuses in the process of the application of law. States are thus expected to observe minimum procedural standards in order to ensure that decisions withdrawing a nationality do not contain any element of arbitrariness.60 First, measures leading to deprivation of nationality must serve a legitimate purpose that is consistent with international law, in particular with the objectives of international human rights law. Such measures must be the least intrusive instrument amongst those which might achieve the desired result, applied as a measure of last resort (ultima ratio) and they must be proportional to the interest to be protected.61 Moreover, other specific procedural guarantees also apply: any decision on 55 This interpretation is supported by the travaux préparatoires of the provision on the prohibition of arbitrary deprivation of nationality in the UDHR [Art. 15(2)]. See N. Robinson, The Universal Declaration of Human Rights. Its Origin, Significance, Application and Interpretation, Institute of Jewish Affairs, New York., 1958; or A. Verdoodt, Naissance et Signification de la Déclaration Universelle des Droits de l’Homme, E. Warny, Louvain, 1964 (both sources quoted by van Waas, 2008, p. 94). 56 Similarly see: UN Human Rights Committee, A. v. Australia, Communication No. 560/1993: Australia, 9.2; CCPR/C/59/D/560/1993 (April 30, 1997). 57 S. Mantu, Deprivation of Citizenship from the Perspective of International and European Legal Standards, ENACT Consortium, FP7-SSH-2007-1-217504-ENACT/D4.2, p. 10. 58 See also: Human Rights and Arbitrary Deprivation of Nationality, Report of the Secretary-General. A/HRC/13/34, 14 December 2009, Paras. 49-50. 59 van Waas, 2008, p. 113. 60 Human Rights and Arbitrary Deprivation of Nationality, Report of the Secretary-General. A/HRC/13/34, 14 December 2009, Para. 43. 61 Arbitrary deprivation of nationality: report of the Secretary-General. A/HRC/10/34, 26 January 2009, Para. 49; Human Rights and Arbitrary Deprivation of Nationality, Report of the Secretary-General. A/HRC/13/34, 14 December 2009, Para. 25.

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deprivation of nationality shall be issued with reasons stated in writing and shall be subject to legal review by a court or an independent body (as prescribed by the 1961 Convention on the Reduction of Statelessness62 and on the regional level, by the 1997 European Convention on Nationality63). The right to legal (judicial) remedies provides an opportunity for overturning unlawful, unreasonable or discriminatory decisions on denaturalization and stands as a cornerstone of due process of law.64 These procedural safeguards have been later reaffirmed by the International Law Commission as well, in the context of state succession. The commentaries to the Draft Articles on Nationality of Natural Persons in relation to the Succession of States elaborated more on this: ‘[t]he requirement of giving reasons for any negative decisions concerning nationality should be considered as one of the prerequisites of an effective administrative or judicial review’ and concluded that the above procedural elements represent minimum requirements in this respect. The ILC also clarified that the adjective ‘effective’ requires that an opportunity has to be provided to permit meaningful review of the relevant substantive issues (in the same sense as expressed by the ICCPR).65 As a consequence, decisions depriving someone’s nationality, which are formally in accordance with law, but falling short of these procedural standards and safeguards, are to be considered arbitrary under general international law.

62 Art. 8(4) stipulates: ‘A Contracting State shall not exercise a power of deprivation permitted by […] this Article except in accordance with law, which shall provide for the person concerned the right to a fair hearing by a court or other independent body.’ 63 Art. 11 sets forth that ‘Each State Party shall ensure that decisions relating to the […] loss […] of its nationality contain reasons in writing.’ Then Art. 12 continues as follows: ‘Each State Party shall ensure that decisions relating to the […] loss […] of its nationality be open to an administrative or judicial review in conformity with its internal law.’ However, this obligation is weakened by possible reservations made to these Articles, allowed by the Convention [see Art. 29(1)] and some Council of Europe Member States actually made use of this option (e.g. Bulgaria, Denmark or Hungary in relation to Art. 12 – see: http://conventions.coe.int, last accessed on 1 July 2014). For a detailed analysis on the reservations and declarations with respect to the Convention, see: L. Pilgram, European Convention on Nationality (ECN) 1997 and European Nationality Laws, EUDO CITIZENSHIP Policy Brief No. 4. 64 Despite the availability of legal avenues to challenge decisions on deprivation of nationality, judicial review might reach flowed results, in contravention of international law, as shown by recent cases in the United Kingdom (see e.g. B2 v., The Secretary of State for the Home Department, Judgment of 24 May 2013 [2013] EWCA Civ 616). To the contrary, the Supreme Court delivered victory against arbitrary deprivation of nationality resulting in statelessness in the Al-Jedda case in October 2013 (Secretary of State for the Home Department (Appellant) v. Al-Jedda (Respondent), Judgment of 9 October 2013 [2013] UKSC 62, available at: www.opensocietyfoundations.org/sites/default/files/domestic-al-jedda-judgment-20131009.pdf (accessed on 1 July 2014). For a recent analysis of UK administrative and judicial practice on deprivation of nationality, see: S. Mantu, ‘Citizenship Deprivation in the United Kingdom. Statelessness and Terrorism’, 19 Tilburg Law Review 2014, pp. 163-170. 65 Draft Articles on Nationality of Natural Persons in relation to the Succession of States with commentaries (Yearbook of the International Law Commission, 1999, Vol. II, Part 2, p. 38).

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6.4.3

The Prohibition of Arbitrary Deprivation of Nationality under International Law and EU Law: New Perspectives

Deprivation of Nationality on Discriminatory Grounds: Arbitrary

The prohibition of arbitrary denaturalization, aiming at protecting the right to retain a nationality, is implicitly enshrined in human rights conventions that spell out specific forms of discrimination. As a result, deprivation of nationality may not be based on discrimination on any grounds prohibited under international human rights law, either in law or in practice.66 Going through these treaty law sources chronologically, already the 1961 Convention on the Reduction on Statelessness outlawed discrimination in the context of deprivation of nationality specifically on racial, ethnic, religious, or political grounds (Article 9).67 This is the only provision in the Convention not directly focused on the prevention of statelessness: it is irrelevant whether such deprivation leads to statelessness or not, it is an outright prohibition and such an act of the State is unlawful under the Convention. Article 5 lit.(d)(iii) of the 1965 CERD prohibited racial discrimination in respect of the right to nationality, and the Committee on the Elimination of Racial Discrimination shed more light on this obligation highlighting that States should ‘recognize that deprivation of citizenship on the basis of race, colour, descent, or national or ethnic origin is a breach of States parties’ obligations to ensure non-discriminatory enjoyment of the right to nationality’,68 which obligation qualifies as a peremptory norm of international law (ius cogens). While the 1979 CEDAW does not incorporate a specific prohibition in this regard (although it recognizes women’s right to retain their nationality regardless of the celebration or dissolution of a marriage or the change of nationality by a husband),69 later on, the Committee on the Elimination of Discrimination against Women also made it explicit that ‘nationality […] should not be arbitrarily removed because of marriage of dissolution of marriage or because her husband or father changes his nationality.’70 Finally, the 2006 CRPD is the only core UN human rights convention which explicitly addresses the prohibition of denationalization on the grounds of disability.71 In addition to these ‘hard law’ stipulations, resolutions on nationality of the UN Human Rights Council have also set out a broad range of prohibited discriminatory grounds (such as race, colour, sex, language,

66 UNHCR, ‘Tunis Conclusions’, Para. 18. 67 Art. 9 states: ‘A Contracting State may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds.’ This provision was historically designed to give effect to Art. 15(2) of the UDHR. 68 UN Committee on the Elimination of Racial Discrimination, CERD General Recommendation XXX on Discrimination Against Non Citizens, 1 October 2002, Para. 14. 69 Art. 9. 70 UN Committee on the Elimination of Discrimination Against Women, CEDAW General Recommendation No. 21: Equality in Marriage and Family Relations, 1994, Para. 6. (CEDAW/C/1995/7, Annex, Appendix, chapter III B). 71 Art. 18(1) lit. (a): ‘States Parties shall recognize the rights of persons with disabilities […] to a nationality, on an equal basis with others, including by ensuring that persons with disabilities: […] (a) […] are not deprived of their nationality arbitrarily or on the basis of disability.’

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religion, political or other opinion, national or social origin, property, birth or other status, etc.).72 It can therefore be argued that the prohibited grounds for discrimination in cases of the withdrawal of nationality include all the grounds enshrined in Article 2 of the ICCPR. According to leading legal scholars, the non-discrimination principle regarding nationality constitutes a rule of customary international law,73 therefore, it provides a far reaching and effective legal safety net against arbitrary deprivation.

6.4.4

Deprivation of Nationality Resulting in Statelessness: Arbitrary

The avoidance of statelessness is a general principle of today’s international law. Statelessness is undesirable not only from the viewpoint of the individual, but also from the states (e.g. in light of issues of human security).74 Deprivation of nationality leads to statelessness where the person concerned does not possess or immediately acquire another nationality.75 Historically, the first major, internationally recognized statelessness situations have been created by mass denationalisation policies following World War I and in the period preceding World War II.76 Pursuant to the academic communis opinio in this matter, deprivation of nationality resulting in statelessness would generally be arbitrary,77 unless it serves a legitimate purpose and complies with the principle of proportionality. This approach is clearly underpinned by different universal and regional treaty provisions. The point of departure is again the 1961 CRS. Its Article 8(1) lays down the general rule: ‘[a] Contracting State shall not deprive a person of its nationality if such deprivation would render him stateless.’ Nevertheless, there exists an exhaustive list of exceptions under this obligation: the subsequent paragraphs of the same Article allow for a limited set of circumstances under which deprivation of nationality resulting in statelessness is still permitted. In line with the general principle of interpretation in international human rights law, confirmed by

72 See e.g. UN Human Rights Council Resolutions 7/10 of 27 March 2008 (A/HRC/RES/7/10), operative Paras. 2-3; 10/13 of 26 March 2009 (A/HRC/RES/10/13), operative Paras. 2-3; or 20/5 of 16 July 2012 (A/HRC/RES/20/5), operative Paras. 2 and 4. 73 E.g. Dörr, 2012, Para. 6. 74 Manly and van Waas, 2010, pp. 63-66; Dörr, 2012, Para. 9. 75 Arbitrary deprivation of nationality: report of the Secretary-General. A/HRC/10/34, 26 January 2009, Para. 51. 76 For concrete historical examples, see e.g. Hofmann, 2013, Paras. 4-8. 77 E.g. J. Chan, ‘The Right to a Nationality as a Human Right – The Current Trend Towards Recognition’, 12 Human Rights Law Journal (1991), pp. 1-14; R. Donner, The Regulation of Nationality in International Law, Transnational Publishers, New York, 1994 (Chapter 4: Human Rights Conventions and Other Instruments); J. Goldston, ‘Holes in the Rights Framework: Racial Discrimination, Citizenship, and the Rights of Noncitizens’, 20 Ethics and International Affairs (2006), pp. 321-347 (all quoted by L. van Waas, 2008, p. 40); Fourth report on the expulsion of aliens by Mr. Maurice Kamto, Special Rapporteur, International Law Commission, 60th session, A/CN.4/594, 24 March 2008, Para. 29.

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the intention of the drafters of the 1961 CRS articulated in the travaux préparatoires,78 these narrowly construed exceptions under the general rule shall be interpreted in a restrictive manner. First, naturalized persons may be rendered stateless by withdrawal of nationality if they have resided abroad for at least seven years and failed to declare their intention to retain their nationality [Article 8(2) lit. (a)]. Second, by virtue of the same provision, States may also deprive persons born abroad of their nationality if one year after attaining majority, they do not reside in the State of nationality or register with the appropriate authority. Third, deprivation of nationality rendering someone stateless is also permissible if the nationality has been obtained by misrepresentation or fraud [Article 8(2) lit. (b)].79 In relation to the latter, it is to be noted that there must be causality between the fraud or misrepresentation and the grant of nationality. This means that the fraud must be material to the acquisition of nationality. Furthermore, deprivation based on misrepresentation or fraud would not be justified if the person was not aware and could not have been aware that the information provided during the naturalization was untrue.80 In addition, a specific situation is worth examining: when authorities are considering the deprivation of nationality of children due to misrepresentation or fraud. Here, one may ask whether the main objective of preventing statelessness of children laid down in both the 1961 Convention (Articles 1-4) and the 1989 CRC (Articles 7-8), read in light of the principle of the best interest of the child, could prevail over this exception?81 It is easy to argue that rendering a minor stateless is never in his/her best interest. As a consequence, I find it legally tenable to conclude that thanks to the development of international human rights law in the last decades, deprivation of children’s nationality on the basis of misrepresentation and fraud is now outlawed if it results in statelessness, owing to the considerations of the best interest of the child and the principle of proportionality which plays the most significant role here amongst the exceptions set out in Article 8(2) of the 1961 CRS. Finally, certain additional exceptions are provided for in Article 8(3), which is a ‘stand still clause’: they can be applied only in so far as those grounds have already been envisaged in the domestic law of the Contracting State at the time of signature, ratification or accession and the State expressly indicates its intention to retain them when it gives its consent to be bound by the Convention. Only 15% of the Contracting States have made use of this provision to retain a specific ground for deprivation of nationality under the stand still clause.82 The exceptions cover two types of situations. They allow for deprivation of 78 Under the 1969 Vienna Convention on the Law of the Treaties (VCLT), travaux préparatoires can be used as a supplementary means of treaty interpretation (Art. 32). 79 For a comprehensive analysis of this provisions and their desired interpretation, see UNHCR, ‘Tunis Conclusions’, Paras. 52-64. 80 UNHCR, ‘Tunis Conclusions’, Paras. 58-59. 81 See similarly: ibid., Para. 62. 82 Ibid., Para. 65. The list of such declarations can be consulted at https://treaties.un.org/doc/Publication/ MTDSG/Volume%20I/Chapter%20V/V-4.en.pdf (last accessed on 1 July 2014).

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nationality resulting in statelessness due to 1) conduct inconsistent with the duty of loyalty to the State (on the basis of services rendered or emoluments received from foreign States,83 or on the basis of a conduct seriously prejudicial to the vital interest of the State84) or 2) because of evidence of allegiance to another State (the person has taken an oath, or made a formal declaration of allegiance to another State). As Mantu explains: ‘[t]hese exceptions are related to the main duty that citizens have towards their state, namely the duty of loyalty. Thus when that duty is breached the state has the power to sever the formal link between itself and the citizen, and deny him membership as punishment for his acts.’85 However, the last exception (allegiance to another State) seems to be obsolete in most circumstances, since usually the only opportunity for a person to make a formal oath of allegiance to another State is at the very last phase of the naturalization procedure, when the occurrence of statelessness is no longer an issue. Moreover, I share the view that this scenario has also been superseded by later developments in domestic nationality laws which increasingly place less importance on formal allegiance to the State.86 The above regulatory architecture clearly shows that international law leaves just a thin margin of manoeuvre for States when they wish to lawfully withdraw a person’s nationality causing statelessness. Article 8(1)-(3) of the 1961 CRS aim at striking a delicate balance between the rights of the individual and the legitimate interests of the State. The underlying concept is that deprivation of nationality resulting in statelessness is generally arbitrary, since its impact on the individual outweighs by far the interests the State seeks to protect. This approach is also evidenced by the fact that the Convention does not allow reservations to these provisions87 or for States to otherwise exclude individuals from the scope of the Convention due to other types of conduct (exhaustive list of exceptions).88 What is more, the procedural due process requirement is explicit in this context: in all cases of permitted deprivation of nationality, such a decision may only be made in accordance with law, and 83 Art. 8(3) lit. (a)(i). As highlighted by UNHCR, this exception must be interpreted narrowly and may not be applied where the individual rendered services to, or received emoluments from an entity which does not constitute a State (e.g. an intergovernmental organization, a non-State actor in an armed conflict, or an NGO). See ibid., Para. 67. 84 Art. 8(3) lit. (a)(ii). This exception to the basic rule established a very high threshold for deprivation of nationality resulting in statelessness. Taking the ordinary meaning of the terms ‘seriously prejudicial’ and ‘vital interest’, in accordance with Art. 31(1) of 1969 VCLT, such a conduct must threaten the very foundations and internal structure of that State whose nationality is at stake. The notion ‘seriously prejudicial’ requires that the individual concerned is actually capable of negatively impacting the State. Similarly, ‘vital interest’ sets a much higher threshold than ‘national interest’ which is confirmed by the travaux préparatoires. See: ibid., Para. 68. 85 Mantu, 2009, p. 9. 86 UNHCR, ‘Tunis Conclusions’, Para. 69. 87 Art. 17 of the 1961 CRS stipulates: ‘1. At the time of signature, ratification or accession any State may make a reservation in respect of Arts. 11, 14 or 15. 2. No other reservations to this Convention shall be admissible.’ 88 UNHCR, ‘Tunis Conclusions’, Para. 23.

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against it the right to a fair hearing by a court or other independent body shall be provided for [Article 8(4)]. If we turn our attention to the regional level, we may witness an even stronger protection against arbitrary deprivation of nationality resulting in statelessness. The 1997 European Convention on Nationality, placing the prohibition of arbitrarily depriving one of his/her nationality amongst the basic principles upon which ‘rules on nationality of each State Party shall be based’,89 went further by setting out more limited restrictions on the possible exceptions.90 Its Article 7(3) allows for deprivation of nationality resulting in statelessness only and exclusively in cases of misrepresentation and fraud (according to the Convention language: ‘by means of fraudulent conduct, false information or concealment of any relevant fact attributable to the applicant’).91 The old-fashioned exceptions introduced by Article 8(2)-(3) of the 1961 CRS have not been taken up by the drafters of the European Convention. The Explanatory Report of the ECN, which is an official means for interpreting the Convention by virtue of Article 31(3) of the 1969 VCLT,92 goes into the details concerning the conditions of the application of the ‘misrepresentation and fraud’ exception by saying that fraudulent conduct, false information or concealment of any relevant fact has to be the result of a deliberate act or omission by the applicant which was a significant factor in the acquisition of nationality. Moreover, ‘concealment of any relevant fact’ means concealment of a relevant condition which would prevent the acquisition of nationality by the person concerned (such as bigamy). Finally, it explains that ‘relevant’ in this context refers to facts (such as concealment of another nationality, or concealment of a criminal conviction for a serious offence) which, if they had been known before the nationality was granted, would have resulted in a decision refusing to grant such nationality.93 Even within the boundaries of this exception, Recommendation No. R (1999) 18 aims at narrowing State discretion by commending a balancing approach and factors to be considered before such a decision is taken: ‘[i]n order to avoid situations of statelessness, a State should not necessarily deprive of its nationality persons who have acquired its nationality by fraudulent conduct, false information or concealment of any relevant fact. To this effect, the gravity of the facts as well as other relevant circumstances, such as the genuine and effective link of these persons with the State concerned, should be taken into account.’94 This soft law 89 Art. 4. lit. c. 90 See also: Explanatory Report to the European Convention on Nationality (ETS No. 166), Para. 77. (available at http://conventions.coe.int/Treaty/en/Reports/Html/166.htm (last accessed on 1 July 2014). 91 Art. 7(1) lit. b. 92 Art. 31(2) lit. b): ‘The context for the purpose of the interpretation of a treaty shall comprise […] (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty’ [emphasis added – M.T.]. 93 Explanatory Report to the European Convention on Nationality (ETS No. 166), Para. 61. In the Hungarian legal scholarship also mentioned e.g. by A. Lőrincz, ‘Az állampolgárságtól való megfosztás mint biztonsági eszköz’, XIII Pécsi Határőr Tudományos Közlemények (2012), pp. 323-324. 94 Principle II. C. c. (emphasis added).

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norm therefore emphasizes the importance of narrowly construing an exception of this kind as well as of the principle of proportionality.95

6.4.5

Deprivation of Nationality for the Sole Purpose of Expulsion: Arbitrary

When arbitrary withdrawal of nationality is combined with expulsion from the territory of the State of former nationality, the violation of international law becomes even more flagrant. As the UNHCR observes, discriminatory denationalization of individuals is often followed by their expulsion.96 In history, there have been a number of instances when States have resorted to the practice of depriving persons of their nationality in order to circumvent the rule that a State could not expel its nationals.97 This issue has recently come up in the jurisprudence of the Ethiopia-Eritrea Claims Commission with regard to dual (Ethiopian-Eritrean) nationals.98 Although the Claims Commission in its award rejected Eritrea’s argument that the denationalization and subsequent expulsion of persons with dual Ethiopian and Eritrean nationality were contrary to international law, the Commission held that the expulsion from Ethiopia of dual nationals for unknown security reasons, was arbitrary and thus contrary to international law.99 The International Law Commission also devoted attention to this situation when preparing the Draft Articles on the expulsion of aliens, adopted in second reading in August 2014. Article 8 of this text states that a ‘state shall not make its national an alien, by deprivation of nationality, for the sole purpose of expelling him or her’. In the ILC’s view, such a deprivation of nationality, irrespective of the fact that it is the person’s sole nationality or he is a dual national, would be abusive, indeed arbitrary.100 What is apparent is that this rule is without any doubt applicable for dual (multiple) nationals. On the other hand, when such an abusive denationalization causes statelessness, it is ab ovo considered arbitrary save the legitimate exceptions established by the 1961 CRS generally or the 1997 ECN specifically, on the European continent. However, the scenario envisaged in Draft Article 8 can be conceived as a complementary means of protection against such an arbitrary act of the State. Even if a decision on deprivation would qualify as lawful under the exceptions permitted by international treaties, as

95 Arbitrary deprivation of nationality: report of the Secretary-General. A/HRC/10/34, 26 January 2009, Para. 53. 96 Achiron, 2005, p. 39. 97 Expulsion of aliens. Memorandum by the Secretariat, International Law Commission, 58th session, A/CN.4/565, 10 July 2006, Para. 906. 98 Partial Award, Civilians Claims, Eritrea’s Claims 15, 16, 23 & 27-32, Eritrea-Ethiopia Claims Commission, The Hague, 17 December 2004. 99 Fourth report on the expulsion of aliens by Mr. Maurice Kamto, Special Rapporteur, International Law Commission, 60th session, A/CN.4/594, 24 March 2008, Para. 30. 100 Report of the International Law Commission, Sixty-sixth session (5 May–6 June and 7 July–8 August 2014), General Assembly Official Records, Sixty-ninth session, Supplement No. 10, A/69/10, Chapter IV, p. 33.

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long as the sole purpose of the depravation was to render the individual an alien and to expel that person from the territory of the State, it will still qualify as arbitrary deprivation, on account of the rule expressed in Draft Article 8, and hereby considered to be unlawful.

6.5

The Role of ex post Effective Remedies

When someone is actually deprived of his/her nationality, legal remedies against such a harsh intrusion into private life that can even destroy one’s identity, are of outstanding importance. As a result, violations of the general prohibition of arbitrary deprivation of nationality must be open to an effective remedy. Persons having been arbitrarily deprived of their nationality must have access to legal avenues to challenge the validity of such acts, and to different kinds of ex post effective remedies, notably restoration of nationality as the principle remedy (preferably automatically); issuance of documents allowing the individual to make nationality effective as well as registration as a national in relevant civil registries.101 The UNHCR noted that in some cases arbitrary deprivation of nationality may be linked to past persecution against a specific group of people, in the refugee context. In such situations, following the change of circumstances in the country concerned, establishing a simple application procedure for re-acquisition of nationality of the once persecuted population seems to be appropriate, too.102 Following a thorough review of relevant hard law obligations in this matter, it is only the 1989 Convention on the Rights of the Child that is not silent in this regard. The CRC expressis verbis stipulates, in a relatively detailed manner, that ‘[w]here a child is illegally deprived of some or all elements of his or her identity [including nationality], State Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity’ [Article 8(2)]. Besides this sole legally binding, specific obligation, a considerable set of soft law instruments have been developed later on. They evidence the emergence of a general norm of international law requiring effective remedies against arbitrary denationalization, not yet crystallized, but noticeably advancing towards universal acceptance. The UN Human Rights Council called upon States in subsequent resolutions to ensure that an effective remedy is available to persons who have been arbitrarily deprived of their nationality, including but not limited to restoration of nationality.103 Likewise, a series of UNHCR ExCom conclusions have regularly addressed this issue, urging States to 101 Arbitrary deprivation of nationality: report of the Secretary-General. A/HRC/10/34, 26 January 2009, Para. 59; UNHCR, Human Rights and Arbitrary Deprivation of Nationality, Report of the Secretary-General, A/HRC/25/28, 19 December 2013, Para. 34; UNHCR, ‘Tunis Conclusions’, Para. 28. 102 UNHCR, ‘Tunis Conclusions’, Para. 29. 103 UN Human Rights Council resolutions 7/10 of 27 March 2008 (A/HRC/RES/7/10), operative Paras. 7; 10/13 of 26 March 2009 (A/HRC/RES/10/13), operative Paras. 2-3; or 20/5 of 16 July 2012 (A/HRC/RES/20/5), operative Para. 9.

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assist stateless persons in providing them with access to legal remedies to redress statelessness, in particular resulting from the arbitrary deprivation of nationality.104 However, practical obstacles often make it extremely difficult to benefit from the available legal remedies. Access to effective remedies normally relies on providing proof for personal identification, a task that can be seriously hampered by the effect of deprivation of nationality, especially if it rendered the person stateless. In this respect, both UNHCR and the UN Secretary General recommend States to envisage adopting flexible rules for evidence, facilitating proof of identity, which would allow the person concerned to provide witness testimony or resort to various sources of documentary evidence.105

6.6

Deprivation of Nationality and EU Law: A Step Forward towards Enhanced Protection

Switching the focus from international law (‘father’) to the EU legal order (‘son’), the very first salient feature is that neither the founding treaties of the European Union, nor secondary EU law contain provisions on the acquisition or loss of Member States’ nationality or the exercise of this right by States. Although both the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU)106 attach certain rights and entitlements to the possession of a nationality of the Member States, the EU Treaties do not regulate who and under which conditions shall be considered nationals of the Member States. In short, the EU still does not have competences in nationality matters,107 a matter of principle reaffirmed in Declaration No. 2 to Maastricht Treaty108 and the Edinburgh Decision of Heads of State and Government of 12 December 1992.109 However, EU lawyers know well the doctrine developed by the Court of Justice of the European Union (CJEU) in the famous Micheletti case,110 where the CJEU held: ‘[u]nder 104 E.g. UNHCR ExCom conclusions No. 102 (LVI) 2005, Para. (y); No. 106 (LVII) 2006, Para. (v). 105 Arbitrary deprivation of nationality: report of the Secretary-General. A/HRC/10/34, 26 January 2009, Paras. 59, 68; Human Rights and Arbitrary Deprivation of Nationality, Report of the Secretary-General. A/HRC/13/34, 14 December 2009, Para. 46. 106 Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, OJ C 83, 30 March 2010, pp. 1-388. 107 See Arts. 4 and 6 TFEU. 108 Declaration No. 2 annexed to the Treaty of Maastricht on nationality of a Member State (OJ C 191, 29 July 1992, p. 98). 109 Denmark and the European Union, Annex I (Decision of Heads of State and Government, meeting within the European Council, concerning certain problems raised by Denmark, on the Treaty on the European Union), Section A – Citizenship (OJ C 348, 31 December 1992, p. 1). 110 Case C-369/90, M. V. Micheletti and others v. Delegacion del Gobierno en Cantabria, Judgement of 7 July 1992, ECR [1992] p. I-4239. For a detailed analysis of the judgment, see e.g. H.U. Jessurun d’Oliveira, Case Note (Case C-369/90. M. V. Micheletti and others v. Delegación del Gobernio en Cantabria, Judgment of 7 July 1992, not yet reported), 30 Common Market Law Review (1993), pp. 623-637; D. Ruzié, ‘Nationalité, effectivité et droit communautaire’, 97 Revue générale de droit international public (1993), pp. 107-120.

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international law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality’.111 Interestingly, despite the explicit reference to international law, thus implicitly recognizing that the term ‘nationality’ does not have a specific definition under EU law,112 the first part of this formula does not follow the concept of the 1930 Hague Convention. In the latter, the limitations on States’ sovereign prerogatives in nationality issues operate on the international plane, i.e. the legal effects towards other States of a given nationality can be restricted and other States are entitled to not recognize such a nationality if it violates certain standards stemming from international law. Yet, in Micheletti, the CJEU placed restrictions, of EU law origin, on the internal exercise – regulating the loss and acquisition of nationality in the domestic sphere – of the States’ exclusive competence concerning nationality matters. This difference can also be explained by the level and focus of regulation as well as the field of application of the rules of the respective legal systems: international law is still mainly an inter-State legal order of co-ordination (horizontal structure) while EU law traditionally and extensively addresses intra-State issues and situations, directly affecting the domestic legal life of Member States (dominantly a vertical structure, similar to municipal law in this regard). Then comes the pressing question: what does ‘having due regard to Community law’ mean? Given that subsequent judgments of the CJEU dealing with similar matters only repeated this phrase and failed to clarify its meaning and consequences,113 EU law scholars have tried to elaborate more on it. On the basis of those academic writings, the following prohibitions (or in other words: requirements) may be formulated towards domestic legislation or practice in nationality matters: 1) Member States’ nationality legislations should not violate fundamental rights enshrined in the EU Charter of Fundamental Rights or as general principles of law interpreted by the jurisprudence of the CJEU114; 2) domestic

111 Ibid., Para. 10 (emphasis added). 112 See the Opinion of Advocate-General Tesauro delivered on 30 January 1992 in the Micheletti case, ECR [1992] p. I-4254, Para. 3 (‘As yet there is no Community definition of nationality; the provisions of Community law which require an individual to possess the ‘nationality’ of a Member State as a prerequisite for their application must be understood as referring to the national law of the State whose nationality serves as the basis of the right relied upon’). 113 E.g. Case C-179/98, Belgian State v. Mesbah, Judgment of 11 November 1999, ECR [1999] p. I-7955; Case C-192/99, The Queen contra Secretary of State for the Home Department, ex parte: Manjit Kaur, Judgment of 20 February 2001, ECR [2001] p. I-1237; Case C-200/02, Kunqian Catherine Zhu and Man Lavette Chen v. Secretary of State for the Home Department, Judgment of 19 October 2004, ECR [2004], p. I-9925. 114 S. O’Leary, ‘Nationality and Community Citizenship: A Tale of Two Uneasy Bedfellows’, 12 Yearbook of European Law (1992), p. 356; H.U. Jessurum d’Oliviera, 1993, pp. 636-637; S. Hall, Nationality, Migration Rights and Citizenship of the Union, Martinus Nijhoff Publishers, Dordrecht-Boston-London, 1995, pp. 5657; G-R. de Groot, ‘The Relationship between the Nationality Legislation of the Member States of the European Union and European Citizenship’, in M. La Torre (Ed.), European Citizenship: An Institutional Challenge [The European Forum 3], Kluwer Law International, The Hague-London-Boston, 1998, p. 124.

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Tamás Molnár nationality laws should not violate the so-called loyalty clause [Article 4(3) TEU]115; 3) Member States should not exercise en masse naturalization to certain populations without prior consultation with EU partners (e.g. in respect of minorities living in countries neighboring the kin-State) which could be in breach of the principle of solidarity [Article 3(3)TEU]116; 4) nationality policies must be in conformity with the territorial scope of the Treaties [Article 52 TEU, Article 355 TFEU] (e.g. not excluding British Dependent Citizens living in Gibraltar from ‘UK citizens’)117; and finally 5) loss of Member State nationality is not permissible because of long-term residence in other Member State,118 in order to respect freedom of movement of EU citizens as one of the four Union freedoms, a cornerstone of European integration. This ambiguous legal situation has significantly changed with the landmark judgment of the CJEU rendered in the Rottmann case (2010).119 As per the factual background of the case, Janko Rottmann, originally an Austrian national, exercised his right of free movement and moved to Germany in 1995 (apparently before criminal sanctions could be applied). Three years later he applied for German nationality, without disclosing to the German authorities that criminal proceedings have been instituted against him. German nationality was granted to Mr. Rottmann in 1999, and by way of naturalization he lost his Austrian nationality ex lege, in line with Austrian nationality law. However, the Austrian authorities informed the city of Munich, which had handled the request for naturalisation, about the criminal proceedings against Rottmann in Austria. As a result, Germany revoked the naturalisation decision on the grounds that it had been obtained fraudulently. The effect of the withdrawal of German nationality, which did not entail automatic reacquisition of Austrian nationality under Austrian law, would render Rottmann stateless (losing also his status of EU citizen).120 This scenario finally offered the CJEU a good opportunity to explain the scope and exact meaning of the expression ‘having due regard to [European Union] law’. If we put the legal reasoning into a logical sequence, the following can be depicted. First, the Court echoed the general rules of international law applicable to the case, i.e. that the rules on the acquisition and loss of nationality fall within the competence

115 116 117 118

O’Leary, 1992, p. 379; Hall, 1995, pp. 64-73; de Groot, 1998, pp. 123, 135. Hall, 1995, pp. 67, 73. de Groot, 1998, p. 135. O’Leary, 1992, pp. 366, 378; Hall, 1995, p. 33; de Groot, 1998, pp. 123, 136-147; G-R. de Groot, ‘Towards a European Nationality Law’, 8(3) Electronic Journal of Comparative Law (October 2004), p. 8. 119 Case C-135/08, Janko Rottmann v. Freistaat Bayern, Judgment of 2 March 2010, ECR [2010], p. I-1449. 120 The summary of facts has been based on H. van Eijken, ‘European Citizenship and the Competence of Member States to Grant and to Withdraw the Nationality of their Nationals’, 27(72) Merkourios (2010), Case Note, pp. 65-69; J. Shaw, ‘Setting the Scene: The Rottmann Case Introduced’, in J. Shaw (Ed.), ‘Has the European Court of Justice Challenged Member State Sovereignty in Nationality Law?’, EUI Working Papers, RSCAS 2011/62 (December 2011), p. 1; and the résumé of the case on the EUDO Observatory on Citizenship, available at: http://eudo-citizenship.eu/databases/citizenship-case-law (last accessed on 1 July 2014).

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of the Member States and arbitrary deprivation of nationality is prohibited.121 Second, it drew attention to applicable EU law in this specific field of national competence, emphasizing the well-established horizontal rule in its case-law: even if a ‘matter falls within the competence of the Member States […], in situations covered by European Union law, the national rules concerned must have due regard to the latter’.122 Given that deprivation of nationality causes also the loss of EU citizenship and the rights attached to it, this situation falls within the ambit of EU law, by reason of its nature and consequences.123 This clearly showcases the wide reach of EU citizenship as construed by the Court. Third, the CJEU turned its attention to the legal ramifications of the general ban not to arbitrarily deprive a person of his/her nationality under EU law. In this context, it reminded that ‘[w]hen a State deprives a person of his nationality because of his acts of deception, legally established, that deprivation cannot be considered to be an arbitrary act’,124 then reached the conclusion that deprivation of nationality is not contrary to EU law as long as it is in line with international law. Nevertheless, the CJEU introduced a supplementary requirement, an additional standard of review when assessing the legality of an act of withdrawal of nationality: the proportionality test. Quite disputably, the proportionality test has not been conducted by the Court itself, but it is to be done by the national court, which in my view quite undermines the uniform application of EU law, especially in situations where the supranational, autonomous legal status of EU citizenship is at stake.125 So as to guide national courts, the CJEU identified pertinent elements to take into account when examining a decision withdrawing naturalisation against the principle of proportionality. These are the following: 1) the consequences that the decision entails for the person concerned and, if relevant, for the members of his family; 2) the gravity of the offence committed by that person; 3) the lapse of time between the naturalisation decision and the decision on withdrawal; and finally 4) the possibility to recover the original nationality (including examining whether, having regard to all relevant circumstances, the person should be afforded a reasonable period of time in order to try to recover the nationality of his Member State of origin).126 ‘This latter factor seems to hint at some relationship of cooperation needing to emerge between Member States in these circumstances’ – notes Professor Shaw.127 Two further remarks should be made. The first is a seemingly technical one, about terminology: the CJEU did not borrow the traditional term for this kind of involuntary loss of nationality

121 122 123 124 125

Rottmann judgment, Paras. 14, 39, 53. Ibid., Para. 41. Ibid., Para. 42. Ibid., Para. 53. See also D. Kochenov, ‘Two Sovereign States vs. a Human Being: CJEU as a Guardian of Arbitrariness in Citizenship Matters’, in J. Shaw (Ed.), ‘Has the European Court of Justice Challenged Member State Sovereignty in nationality law?’, EUI Working Papers, RSCAS 2011/62 (December 2011), p. 14. 126 Ibid., Paras. 56, 58. 127 Shaw, 2011, p. 4.

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from international law (’deprivation’), but consistently used ‘withdrawal’ which might be explained by the Court’s endeavour to accentuate the autonomous nature of EU law and its legal terms vis-à-vis international law. Second, on a more substantial note, decisions on withdrawal of nationality can be subject to judicial review before the Court of Justice of the EU, acting as final arbiter. The question is whether this also holds true when a particular Member State excludes the judicial review of withdrawal decisions by national courts, e.g. having made a reservation to the 1997 ECN in this respect? Against this background, it is even more interesting how far reaching implications can be deduced from the next statement of the Luxembourg Court: [t]he proviso that due regard must be had to European Union law […] enshrines the principle that, in respect of citizens of the Union, the exercise of [the power to lay down the conditions for acquisition/loss of nationality], in so far as it affects the rights conferred and protected by the legal order of the Union, as is in particular the case of a decision withdrawing naturalisation […] is amenable to judicial review carried out in the light of European Union law.128 Summing it up, in the Rottmann judgment, the Court of Justice of the European Union elaborated more on the procedural standards of the lawful deprivation of nationality, notably by incorporating proportionality as a general principle of EU law129 into the assessment of the arbitrariness of deprivation of nationality as well as foreseeing judicial review before the CJEU and via national courts, in light of EU law. But all this merely applies in relation to acts of deprivation of nationality resulting in statelessness, which only constitutes, as described above, one manifestation of arbitrariness when a nationality is withdrawn. With regard to the nature of arguments, in the context of the deprivation of nationality, the Court did not focus on a human rights imperative to avoid statelessness, but on the specific, supranational legal status of the individual130 and the rights stemming from EU citizenship, which is the ‘fundamental status of nationals of the Member States’. Some say that ‘Rottmann went […] on fetishizing the few similarly exceptions from the main rule of international law on avoidance of statelessness’, adding that the ‘Court is seemingly technical and cold blooded.’131 By contrast, I find that the technical approach was somewhat unavoidable and necessary, since it was solely through the lenses of EU

128 Ibid., Para. 48. 129 See in the same way G.T. Davies, ‘The Entirely Conventional Supremacy of Union Citizenship and Rights’, in J. Shaw (Ed.), Has the European Court of Justice Challenged Member State Sovereignty in Nationality Law?’, EUI Working Papers, RSCAS 2011/62 (December 2011), p. 9. 130 Shaw, 2011, p. 3. 131 Kochenov, 2011, p. 14.

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citizenship that the Court could find jurisdiction ratione materiae in this case and this thin ice did not realistically allow for more.

6.7

Concluding Remarks

After having analysed the concept and content of the prohibition of arbitrary deprivation of nationality under international law and EU law, looking for new perspectives, some general concluding remarks can be phrased. First, we have seen that it is still a topic of particular importance, even nowadays, in the era of global human rights. As the UK Supreme Court eloquently concluded: [a]lthough the international growth of human rights during the past fifty years has to some extent succeeded in establishing that a person’s right to have rights stems, instead, from his existence as a human being, worldwide legal disabilities with terrible practical consequences still flow from lack of nationality.132 Currently, besides the quite solid international legal framework, leaving extremely restricted room for States to deprive persons of their nationality, noteworthy policy developments can be seen on the universal plane. The United Nations and its different bodies have started putting more emphasis on this topic in the framework of the international human rights agenda since the new millennium, which is marked by the proliferation of the resolutions of the UN General Assembly, the UN Human Rights Council and the UNHCR Executive Committee, not to mention the extensive groundwork laid down by the Office of the High Commissioner of Human Rights as well as various reports of the UN Secretary General. Recently, the Human Rights Council had engaged in collecting information from States until mid-2013, then a larger and richer State practice was made available by the end of 2013.133 Proportionality appears to be a new element in the assessment of arbitrariness, not only as an advocacy tool used by UNHCR and other UN agencies as well as human rights NGOs working in this field, but first confirmed in international jurisprudence, in a legally binding way, albeit limited to European legal realities. At any rate, this development is not to be underestimated, which is well illustrated by Laura van Waas’s thoughts from the pre-Rottmann period:

132 Secretary of State for the Home Department (Appellant) v. Al-Jedda (Respondent), Judgment of 9 October 2013 [2013] UKSC 62, Para. 12. 133 See the latest report of the UN Secretary General on human rights and arbitrary deprivation of nationality (A/HRC/25/28, 19 December 2013).

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[i]t is certainly true that to permit the loss or deprivation of nationality in the knowledge that this will lead to statelessness is becoming increasingly unacceptable and is deemed by some to amount to (prohibited) arbitrary deprivation of nationality. However, until an international […] treaty body or court explicitly address this question, it will remain unclear in which exact circumstances the creation of statelessness in this manner is or is not permissible.134 As a soft form of interaction between EU law and international law, the principle of proportionality, brought up by the CJEU, infiltrated the international policy-making agenda and appeared in universal documents such as various reports prepared by the UN Secretary General135 or the UNHCR interpretative guidance (cf. the ‘Tunis Conclusions’).136 As far as the EU is concerned, the additional requirements formulated by Rottmann in order to avoid statelessness as an emanation of arbitrary deprivation of nationality represent an important step forward towards an enhanced protection of core human rights such as the right to a nationality, even if emerging rather as a side effect of a reasoning first and foremost shielding EU citizens and their rights. The EU also needs more coordination with the Council of Europe, which has without doubt the greatest expertise in nationality matters; such coordination is likely to be intensified in the near future.137 In my assessment everything is granted for a greater convergence between regional and universal legal standards, with a view to combating arbitrary deprivation of nationality around the globe, always keeping in mind that any interference with the enjoyment of nationality has a significant, often disastrous, impact on the enjoyment of basic human rights.

134 van Waas, 2008, p. 90. 135 See the most recent report of the UN Secretary-General on human rights and arbitrary deprivation of nationality (A/HRC/25/28, 19 December 2013), Paras. 4, 39, 40. 136 Paras. 19-24. 137 The recent activity of the Parliamentary Assembly of the Council of Europe is promising, see e.g. Access to nationality and the effective implementation of the European Convention on Nationality – Report (Doc. 13392, 23 January 2014, Committee on Legal Affairs and Human Rights, Rapporteur: Mr. Boriss Cilevics), then Resolution 1989 (2014) on Access to nationality and the effective implementation of the European Convention on Nationality and Recommendation 2042 (2014) Access to nationality and the effective implementation of the European Convention on Nationality (both adopted on 9 April 2014).

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Dual Citizenship in the Force Field of the European Union

Laura Gyeney*

7.1

Introduction

The issues of dual and multiple citizenship have always presented significant challenges to the enforcement of law. While dual citizens concurrently obey the rules of different countries, it may occur that they cannot exercise their rights in different life situations. Judit Tóth draws the attention to this problem by raising the question whether dual citizens bear a twofold burden of costs while they are entitled to less enjoyment of rights?1 The above mentioned question has remarkable relevance in the European Union (EU) since the institution of EU citizenship and the connected right to free movement and the right to freedom of residence aim to facilitate the consecutive, ad absurdum simultaneous exercise of rights in the Member States. Moreover, due to the rapidly growing number of dual citizens within the EU the question has particular relevance. In general, the institution of dual citizenship2 has become highly accepted in the majority of the Member States conforming to common liberalisation trends.3 Citizenship is rooted in the idea of the sovereign state; consequently any change in such an idea involves alterations in the concept of citizenship. As Franck points out, ‘today the thought of dual citizenship is not considered an extraordinary phenomenon anymore.’4 This is particularly true with respect to cases where the person concerned

* 1 2

3 4

Associate professor, Péter Pázmány Catholic University, Faculty of Law; Director of the De Gasperi Institute. E-mail: [email protected]. J. Tóth, ‘Miért nem lehet, ha szabad? A többes állampolgárság a nemzetközi és az európai közösségi jog felől’, www.kettosallampolgarsag.mtaki.hu/tanulmanyok/tan_03.html. R. Bauböck et al. (Eds.), Acquisition and Loss of Nationality. Volume 1: Comparative Analysis, Amsterdam, Amsterdam University Press, 2006. This trend seems to refute the resistance of European states towards the institution of dual citizenship. The Strasbourg Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality concluded in 1963 under the auspices of the Council of Europe is a good example for the general opposition of the Member States. The European Convention on Nationality adopted in 1997 reflects a more balanced approach. M.M. Howard, ‘Variation in Dual Citizenship Policies in the Countries of the EU’, 39/3 International Migration Review (2005), pp. 697-720. T.M. Franck, The Empowered Self, Law and Society in the Age of Individualism, Oxford University Press, 1999, p. 62.

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acquires dual citizenship by birth, either because their parents are citizens of two different states or as a result of the combination of the principles of ius soli and ius sanguinis. Acquisition of citizenship through the naturalisation procedure covers more sensitive issues, in respect of which we may witness a reverse process in certain relations. Namely, a more restrictive approach is applied to dual citizenship acquired through naturalisation. For instance, expanding Hungarian citizenship to Hungarian nationals living in Romania and Slovakia through a simplified naturalisation process resulted in serious political tensions.5 Moreover, several Member States require the renunciation of previous citizenship as a mandatory condition to be met for the acquisition of a new citizenship.6 As a result of the above-described trends, it seems extremely urgent to resolve the currently existing and escalating tensions at the EU level. Is the EU prepared for adequately managing these highly sensitive issues? This study intends to analyse the most topical questions raised in relation to dual citizenship in the framework of the EU, while also acknowledging the complexity of the problem.7 Moreover, the situation has become even more complex, for the issue of dual citizenship may be considered from two different perspectives, namely in the context of intra-EU and extra-EU relations. We consider the intra-EU context when the citizen concerned possesses at least two different citizenships of Member States. By contrast, we speak of an extra-EU context in case dual citizenship comprises a ‘EU citizenship’ and the citizenship of a third country. However, in both relations the interaction between dual citizenship itself and EU citizenship deriving from the citizenship of a Member State prompts questions. In the latter context, further tensions may occur as a consequence of exercising the wide range of rights deriving from EU citizenship.

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C. Iordachi, ‘Dual Citizenship in Post-Communist Central and Eastern Europe: Regional Integration and inter-Ethnic Tensions’, in O. Ieda (Ed.), Reconstruction and Interaction of Salvic Eurasia and Its Neighboring Worlds, Sapporo, Slavic Europasian Studies, 2006, p. 10. About the roots of the problems, see: Z. Kántor, ‘The Status Law Syndrome and Regional/ National Identity, Hungary, Hungarians in Romania, and Romania’, http://src-h.slav.hokudai.ac.jp/coe21/publish/no10_ses/06_kantor.pdf. For more on this issue, see: R. Bauböck, ‘Dual Citizenship for Transborder Minorities? How to Respond to the Hungarian-Slovak Tit-for-Tat?’, EUI Working Paper RSCAS 2010/75, http://eudo-citizenship.eu/citizenship-news/322-dual-citizenship-for-transborder-minorities-how-to-respond-to-the-hungarian-slovak-titfor-tat. J. Nissen et al., ‘Migration Integration Policy Index’, Brussels, British Council and Migration Policy Group, in Dual Citizenship: Policy Trends and Political Participation in EU Member States, www.europarl.europa. eu/committees/en/afco/studiesdownload.html?languageDocument=EN&file=29659. At this point, it is worth mentioning Peter J. Spiro’s remarkable conclusion of his study on dual citizenship. According to Spiro, ‘In dealing with the challenges of minorities in Central Europe over the long run, dual citizenship could be part of the answer rather than part of the problem.’ P.J. Spiro, ‘Accepting and (Protecting) Dual Citizenship for Transborder Minorities’, EUI Working Paper RSCAS 2010/75.8.

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In the following, I shall examine the aspects of dual citizenship from the perspective of intra-EU and extra-EU relations, with special respect to Slovakia’s response to Hungary’s Dual Citizenship Law.

7.2

7.2.1

Intra-EU Context

EU Aspects of Dual Citizenship in the Light of Contractual Goals and Fundamental Values

In respect of the intra-EU context, we may ask whether the supranational character of EU citizenship can eliminate the questions surrounding dual citizenship, silencing the ongoing dispute.8 In the case of EU citizenship, the important factor is the existence of a Member State citizenship itself, and it is merely a secondary question which Member States granted citizenship to the person concerned. According to this concept, dual citizenship constitutes two pillars by providing a precise and reliable foundation to EU citizens. From a theoretical perspective, this approach is highly tempting but we should take into account the practice of Member States, which definitely differs from this idealistic concept. Certain Member States still require the renunciation of the previous citizenship in the course of the naturalisation process,9 while unfortunately other Member States go even further by prescribing the deprivation of the previous citizenship in case of the acquisition of the citizenship of another Member State. For instance, in Slovakia, the citizen is ex lege deprived from their citizenship as a consequence of the naturalisation process. These conditions or results could hardly be considered to be in compliance with the legal perspective of integration, particularly the principle of equal treatment, according to which EU citizens enjoy similar economic and social rights across the territory of Member States. As a result of integration, the Member State citizenship has begun to gradually lose significance.10 The content of Member State citizenship has basically been reduced to the

8

EU citizenship as the ‘catalyst of the integration’ emerges in several studies: D. Kostakopoulou, European Union Citizenship: Writing the Future, p. 642; Shaw: Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism, p. 8. 9 Austria, Denmark, Estonia, Latvia, Lithuania, Luxembourg, The Netherlands, Slovenia, Spain. In Bauböck’s view: ‘Although many countries still insist on renunciation as a condition for naturalisation of immigrants, this has become a largely anachronistic policy.’ R. Bauböck, ‘Dual Citizenship for Transborder Minorities? How to Respond to the Hungarian-Slovak Tit-for-Tat?’, EUI Working Paper RSCAS 2010/75. 2. 10 D. Kochenov, ‘Rounding up the Circle, the Mutation of Member States’ Nationalities under Pressure from EU Citizenship’, EUI Working Papers RSCAS 2010/23, p. 29; M. Szabó: ‘International Law and European Law Aspects of External Voting with Special Regard to Dual Citizenship’ (unpublished). The study has been published in the volume issued in 2013 following the conference on ‘Trends and Directions of Kin-State Policies in Europe and Across the Globe’, jointly organised by the National Policy Research Institute and the University of Szeged Faculty of Law and Political Sciences, Department of European Studies.

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right to participate at the national elections and the right to be employed in public administration. It is reasonable if we evaluate the previous renunciation requirement regarding citizenship in the course of the naturalisation process and the deprivation of citizenship as a consequence of acquiring the citizenship of another Member State. These restrictive conditions may essentially pursue two practical goals, firstly, to ensure that the Member State citizen is prevented from participating at the national elections; secondly the citizen is excluded from filling prominent positions in the public administration. Nevertheless, these two underlying considerations are clearly not compatible with the integrative goals according to which a more stringent unity must be established between the peoples of Europe,11 moreover these approaches also jeopardize the enforcement of the democracy requirement set out in Article 2 of the Treaty on the European Union.12 Pursuant to EU law, EU citizens have the right to free movement and may freely enter the territory of another Member State while they shall be treated equally to the citizens of the host state. This guarantees that the newcomers are given the opportunity to participate in the social life of the host state, which recently became their place of residence.13 The state concerned cannot but accept this new reality, particularly in light of the fact that all Member States are founded on the same fundamental political values, furthermore, each and every one of them joining the EU in order to realise the same set of goals. Besides the difficulties inherent in the theoretical approach, we must anticipate practical hindrances, namely that certain Member States do not ensure the renunciation of citizenship at all. Thus, for instance if a Greek citizen intends to acquire Latvian citizenship through an explicit naturalisation process, the effects of renunciation could not be applied considering the fact that the renunciation of such citizenship is not possible by law.

7.2.2

EU Aspects of Dual Citizenship in the Light of the Case-Law of the Court of Justice of the European Union

The case-law of the Court of Justice of the European Union (CJEU) in respect of dual citizenship also raises several different questions, especially if we focus on private international law aspects. We must be aware of the fact that the case-law of the judicial forum in Luxem11 See: Art. 1 of the Treaty on the European Union: ‘This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and closely as possible to the citizen.’ 12 See: Art. 2 of the Treaty on the European Union: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’ 13 See: Art. 21 of the Treaty on the European Union: ‘Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give it effect.’

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bourg regarding dual citizenship significantly affects the traditional mind-set of the Member States in resolving the conflict of laws by means of private international law. How does the CJEU achieve such change? The novel approach of the CJEU undoubtedly overrides the traditional private international law practice of Member States through the modern concept of disallowing the automatic application of citizenship of the forum concerned in respect of dual citizens who are citizens of more than one Member State. How does this concept work in practice and what does it mean exactly? Member States enjoy complete sovereignty in deciding who are to be considered their citizens. However, the case-law of the CJEU explicitly forbids the proceeding forum not to take into account the citizenship of another Member State in the course of the assessment of the case. In other words, the relevant case-law of the CJEU establishes wider limits regarding the private international law components of citizenship.14 The well-known judgement of the CJEU adopted in the Garcia Avello case15 is a prominent example, according to which the mere fact that the children possess SpanishBelgian dual citizenship, obliges Belgium, the state where the children were actually born and resided since birth, to take into consideration the Spanish citizenship of the children in the course of assessing the case. The judgement of the CJEU passed in the Hadadi case,16 containing Hungarian aspects, also illustrates well this point.17 The case is rooted in the divorce of a Hungarian couple that immigrated to France and acquired French citizenship. In the framework of the preliminary ruling, the referring court asked the CJEU whether Regulation No. 2201/2003 must be interpreted as meaning that, where spouses both hold the nationality of the Member State of the court seized by the case and that of the same other Member State, the court of the State in which proceedings are brought must give precedence to the nationality of the Member State to which it belongs, since this nationality expresses real connection. The habitual residence of the spouses was France and irrespective of the existence of the Hungarian citizenship, no other real, stringent connections to Hungary were discernable. The Luxembourg court decided in its preliminary ruling that in case of dual citizenship, even if the parties concerned refer to the citizenship that expresses more stringent relations

14 O. Vonk, Dual Nationality in the European Union. A Study on Changing Norms in Public and Private International Law and in the Municipal Laws of Four Member States, Leiden-Boston, Martinus Nijhoff Publishers, 2012. pp. 153-156. 15 The CJEU adopted its judgement on 2 October 2003 regarding the C-148/02, Garcia Avello v. Belgium case (ECR 2003, p. I-11613). 16 The CJEU adopted its judgement on 16 July 2009 regarding the C-168/08, Hadadi case (ECR 2009, p. I6871). 17 Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No. 1347/2000.

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between them and the Member State, such reference shall not serve as a basis to establish a ranking between Member States’ citizenships. Consequently, a mere reference made by a dual citizen to the closer ties between the dual citizen and the state shall not serve as the basis to declare the priority of this nationality.18 In this respect, Advocate-General Kokott mentioned Recital 1 of the regulation’s preamble in her opinion, according to which the EU ‘contributes towards creating an area of freedom, security and justice, in which the free movement of persons is ensured.’19 Thus, the main purpose of the regulation is to consider the interests of the participants involved in the proceedings and to provide for flexible regulation that responds to the mobility of persons. These aims predicate that persons exercising their right to free movement may freely choose between jurisdictions. It is obviously easier for these persons to turn to the court of their habitual of residence. Nevertheless, it could be possible that the persons concerned intend to turn to the court of their native country for instance because they speak the language of that state better or are more familiar with its judicial system and legal order.20 Based on the above, we may say that the principle of more stringent connection would result in an undesirable hierarchy of jurisdiction. Such a hierarchy would be contrary to the goals set out in the regulation, namely, the creation of an area of freedom, security and justice in which the free movement of persons is ensured. As is apparent, according to the relevant case-law of the CJEU, the Member State concerned has limited power to control its own citizens if they are simultaneously citizens of another Member State.21 Moving on from private law aspects, in respect of the scope of acquisition and renunciation of citizenship the CJEU certainly moves forward with deliberate steps. The Rottman case,22 where the focus was explicitly placed on the issue of the renunciation of citizenship,23 18 Zs. Wopera, A Hadadi ügy, JEMA, 2010/1. 75. It cannot be deducted from regulation 2201/2003//EC, nor its context that in the course of the application of law and in the context of dual citizenship, only the citizenship that expresses the closer relationship may be considered. 19 See: Section 56 of the Advocate-General opinion set out in the Hadidi case. 20 See: Section 58 ibid. 21 Vonk ibid. 160. 22 The CJEU adopted its judgement on 2 March 2010 regarding the C-135/08, Janko Rottman v. Freistaat Bayern case. See more: L. Gyeney, ‘Uniós polgárság, a piacorientált szemlélettől való elszakadás göröngyös útjai’, 2 IAS (2012), 2. 23 Rottman lost his Austrian citizenship at the time when he acquired German citizenship, and then he lost his German citizenship since he previously acquired it through a fraudulent procedure and the German authorities deprived him of his newly obtained citizenship. Consequently, he also lost his European citizenship. A preliminary ruling procedure was conducted in the case to answer the question whether it is contrary to EU law if a Member State withdraws citizenship due to the fact that the person concerned acquired it by intentional deception and such withdrawal has the effect of causing the person concerned to become stateless. The CJEU acknowledged that regulating citizenship belongs exclusively to the competence of Member States, but as the situation also falls under EU law, therefore, national provisions must take into account and respect EU law. Consequently, Member State rules on the withdrawal of citizenship must be compatible with EU law, i.e. necessary and proportionate. Regarding the principle of necessity the protection of common interest

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constitutes another milestone in the continuous reinforcement of the status of union citizenship. The case involved the renunciation of a citizenship previously obtained through misrepresentation. The central question was whether such a decision was compatible with EU law, where the person concerned loses his EU citizenship as a consequence of misrepresented acquisition. The judgement adopted in the Rottman case has particular relevance since this was the first time the CJEU clarified that although Member States have the competence to lay down the conditions for the acquisition and loss of citizenship, at the same time they must consider whether their decision affects the rights conferred and protected by the legal order of the EU and pertaining under the effect of EU law. These aspects must be considered in the course of the application of domestic law and the judicial review carried out in the light of EU law.24 In respect of the context of union citizenship it was declared that Member States do not enjoy unlimited freedom regarding the renunciation of citizenship. In the Rottman case, the CJEU assessed the competence of the Member States in relation to the renunciation of citizenship for the very first time. It is of great significance that in the case the CJEU placed the focus on the future consequences of the loss of union citizenship rather than on the assessment of past facts in relation to free movement. Consequently, the connection point is not the element of movement that had occurred in the past but the future exercise of rights derived from EU citizenship. At this point it is worth examining the recent issue of the Slovak amendment of nationality law as a response to the recently adopted Hungarian naturalisation process,25 assessing it in the light of the Rottmann case. On 26 May 2010 the National Council of the Slovak Republic amended act nr. Tt. 40/1993 on the citizenship of the Slovak Republic. According to the act currently in effect, in case someone voluntarily, ‘pursuant to their explicit will’ requests the citizenship of another state and successfully acquires it, the person concerned shall lose their Slovak citizenship. It is important to emphasise that the loss of Slovak citizenship merely occurs if someone acquires the citizenship of another state pursuant their explicit will and request, therefore citizenship gained by birth does not fall under this category. The act imposes a € 33 fine as a sanction on those who omit to inform the authorities regarding the acquisition needs to be proven, while in the course of the assessment whether the measure was proportionate or not, intentional deception needs to be evaluated. 24 I. Vörös, ‘Néhány gondolat az uniós polgárság intézményéről’, http://jesz.ajk.elte.hu/voros50.pdf. 25 As is known, according to Art. 4 of Act LV of 1993 on Hungarian nationality, those persons are also entitled to request Hungarian citizenship who are Hungarian nationals living outside of the borders and have not moved to Hungary or established a workplace in Hungary but continue to stay in their country of origin, being linked to Hungary by their nationality and not by their livelihood or residence.

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of the citizenship of another state and fail to surrender their national identification card. Besides the obligation to pay a fine, by obtaining the new citizenship, the public service relationship of the persons concerned is terminated ex lege.26 Before all, the question arises whether the Slovak amendment is in compliance with the requirement of solidarity between the Member States. Besides it being morally questionable,27 the amendment in question suffers from several legal defects and discrepancies.28 In addition to the supposedly unconstitutional character of the amendment (the Slovak Constitutional Court is currently examining its compatibility with the Constitution), it is also questionable both from the international law29 and European law aspects.30 26 Since the amendment of the disputed act, the Slovak authorities imposed fines several times in cases concerning dual citizenship and for instance in the case of László Gubík, whose name has become well-known by the time, as a paramount example. The Slovak police force called upon László Gubík to submit his identification card following the acquisition of his Hungarian citizenship. The young man from Levice did not comply since he believes that the act on the basis of which he was deprived from his Slovak citizenship is unconstitutional. The Slovak authorities imposed a € 33 fine for failure to submit his Slovak identification card. 27 As Stavilá points out ‘Slovakia’s retaliation by passing an amendment to its own citizenship law, according to which every Hungarian ethnic applying for Hungarian citizenship will be automatically stripped of Slovak citizenship, may be justified in a Machiavellian perspective on politics – but it can not be morally defended.’ A. Stavilá, ‘Paving the Road to Heaven with Bad Intentions. A Moral Point of View’, EUI Working Paper RSCAS 2010/75.12. He also emphasises the illiberal character of the amendment: ‘The Slovak amendment is clearly an illiberal one, and its consequences are more far-reaching than the bilateral relationship between Hungary and Slovakia. Not only Hungarian ethnics but also every person who acquires another country’s citizenship will automatically lose Slovak citizenship.’ A. Stavilá ibid. 10. 28 It is worth noting that the Slovak legal system also acknowledges the institution of simplified naturalisation. Slovakia provided Slovak citizenship between 1997 and 2005 pursuant to the same conditions Hungary currently ensures. The previous Slovak regulation affected approximately 10,000 persons in Romania and Serbia who could take up Slovak citizenship on the basis of their Slovak origin. T. Wetzel, ‘Sólyom ügy az Európai Bíróságon c. előadása’, Magyar Jogász Egylet, 22 January 2013. 29 As Spiro emphasizes ‘recent developments point to the emergence of an international norm under which habitual residents can not be denied access to citizenship. Slovakia’s denationalization of those Slovakians who acquire Hungarian citizenship poses an unreasonable burden on that access.’ P.J. Spiro, ‘Accepting and (Protecting) Dual Citizenship for Transborder Minorities’, EUI Working Paper RSCAS 2010/75.8. At this point it is worth mentioning that the act does not prescribe that the renunciation of the previous citizenship is mandatory in the course of requesting Slovak citizenship. Consequently, the person deprived from his Slovak citizenship can basically reapply for the Slovak citizenship. 30 The present study strives not to move beyond the framework of the assessment of the case from the European law aspect, thus it does not take into account the aspects of national or international law. However, it is necessary to point out that the act does not have implementing rules; therefore the way of execution actually followed varies. From a procedural law perspective, the regulation is incompatible with the 1997 European Convention on Nationality, since no resolution or reasoning is devoted to the loss of citizenship; moreover the possibility for judicial review is not provided. At the time of announcement the authorities do not assess identity, therefore they do not evaluate whether the person concerned actually acquired the new citizenship, raising the problem of possible statelessness. Moreover, pursuant to the proposal amending the draft legislation if someone moves to the state the citizenship of which he recently took up he will not lose his previous citizenship. Therefore, a paradoxical situation occurs according to which those persons lose their previous citizenship who intend to live in their country of origin. It is also necessary to mention that proceedings were opened before the Strasbourg Court in the case. See: Appl. Nos. 14927/12 and 30415/12 István FEHÉR against Slovakia and Erzsébet DOLNÍK against Slovakia.

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If we assess the Slovak amendment in light of the Rottmann case, we can state that the Slovak rules according to which the person is ex lege deprived from their citizenship if they voluntarily acquires the citizenship of another Member State is incompatible with the requirements set out in EU law. The ex lege withdrawal of citizenship does not fulfil the conditions prescribed in EU law by nature, since such decisions fail to contain reasons, furthermore, the requirement of judicial review is not provided for either.31 As Edit Bauer, Member of the European Parliament expressed in her question for written answer to the European Commission: ‘the judgment shows that European law – and especially the provisions concerning EU citizenship as the fundamental status of the Member States – requires that, when citizenship is withdrawn, the values protected by the Union’s legal order be taken into account, in particular in cases where such provisions entail the withdrawal of Union citizenship. In such cases, Community law requires judicial review and respect of the legal principle of proportionality.’32 This infringement is considered to be particularly grave in cases where a Slovak citizen wishes to take up the citizenship of a third country and thereby loses their Union citizenship ex lege with total disregard to the legal principle of proportionality or the possibility of judicial review. What is more, the abovementioned Slovak amendment may have a deterrent effect on the exercise of the right to free movement and finding employment in the Hungarian public service. Finally, the amendment concerned is not merely a serious challenge for those persons who intend to exercise their right to free movement. Citizens who lose their Slovak citizenship by acquiring the Hungarian one, in case they stay in Slovakia and do not cross the borders, fall under the scope of Directive 2004/38/EC on the right of the citizens of the Union and their family members to move and reside freely within the territory of the Member States (the ‘Free Movement Directive’), taking into account that they reside in the territory of a Member State other than the Member State of citizenship.33 The question immediately emerges: when do these persons obtain the right of permanent residence provided by the Free Movement Directive? According to the Free Movement Directive, EU citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the 31 Ex lege deprivation of citizenship by nature fails to fulfil the requirements set forth under EU law. Failure to provide adequate reasoning (C-222/84, Johnston case [ECR 1986, p. 1651]); lack of effective judicial review (C-222/86 Heylens case adopeted on 15 October 1987 [ECR 1987, p. 4097]); finally the breach of the principle of actual enforcement (C-432/05, Unibet case adopted on 13 March 2007 [ECR 2007, p. I-2271]). 32 P-005994/2011. 33 The fact that those Slovak citizens who acquire Hungarian citizenship ex lege lose their Slovak citizenship at the time when they acquire the Hungarian citizenship, results in a situation where they do not stay in Slovakia as Slovak citizens anymore, but much rather in their status of Hungarian citizens (and union citizens). They do not fall under the provisions of international law providing the right to residence, but much rather under the scope of EU law, namely Art. 21 of the Treaty on the Functioning of the European Union and the Free Movement Directive.

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requirement to hold a valid identity card or passport. In case of residence for more than three months, EU citizens shall register pursuant to the requirements set out in the Free Movement Directive. Contrary to this, a more beneficial situation could be established for Hungarian citizens if they acquire the right of permanent residence following residence in Slovakia spanning at least five years, for pursuant to Section 4 of Article 16 of the Free Movement Directive, once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.34 The judgement of the CJEU adopted in the Ziolkowski and Szeja case35 could provide an answer to the question, even if the facts of the two cases differ in certain aspects. In the abovementioned case, the CJEU declared that the period of time the person concerned resided in the particular Member State as a non-EU citizen could be included into the period of 5 years of lawful residence required for acquiring permanent residence. Therefore, the person residing in the particular Member State may gain permanent residence if he complies with the other requirements set out in the Free Movement Directive, even in case the person does not fall under the scope of the Free Movement Directive.36 As a conclusion, we must agree with Bauböck’s view, who in his study on the issue clearly establishes that there is a need to constrain the power of states to denaturalise ethnic and national minorities as long as their members reside permanently in the territory, even when they voluntarily acquire the citizenship of another state.37

7.3

Extra-EU Context

For the sake of completeness, I would mention briefly the extra-EU context as well, namely when dual citizenship stems from a combination of EU citizenship and citizenship of a third state. Such situations raise issues in connection with the interrelationship between the domestic citizenship giving rise to European citizenship as well as the citizenship of the third state. As is well known, Member State citizenship, through the institution of EU citizenship, endows those who possess such citizenship with supplementary rights, while at the same time Member States enjoy entire freedom to determine who could be the beneficiaries of 34 Á. Töttős, ‘A szabad mozgás és tartózkodás jogának egyes aspektusai az Európai Unió Bíróságának esetjogában’, Migráció és Társadalom (electronic periodical, under publication). The study was presented at the conference organised on 13 May 2013 by the European Migration Network. 35 Judgement of the CJEU adopted in the C- 424/10 and C-425/10 Ziolkowski and Szeja joined cases (not yet published in ECR). 36 Pursuant to the Free Movement Directive, EU citizens who intend to exercise their right to free movement are required to register themselves in the state concerned. In this respect, Slovak authorities indicate the settlement where the person concerned has always been living as the last foreign place of residence. 37 R. Bauböck ibid. 37.

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these extra rights. Serious tensions could occur in situations where persons originally possessing the citizenship of a third state and by residing in the territory of the EU citizenship acquire Member State citizenship due to the liberal national naturalisation provisions.38 This tension was partly resolved by the CJEU in the Micheletti case.39 In the case concerned, the CJEU assessed whether the Italian and Spanish dual citizen, Mr. Micheletti could establish a company pursuant to the freedom of establishment or not, moreover, what the relevance of dual citizenship was. According to the Spanish Civil Code, merely the Argentinian citizenship could be taken into account as his last place of residence was in Argentina. Referring to this circumstance, the right to reside in Spain was denied. Pursuant to the principle of effective nationality, Micheletti had real and tight relationship with Argentina; however, he was Italian citizen as well. The CJEU declared in its judgement that in situations where someone possessed both European and third state citizenship, Article 52 of the Treaty Establishing the European Community shall not be interpreted in a way that habitual residence would determine whether the person concerned may exercise their rights derived from European citizenship, including the freedom of residence. In other words, the exercise of rights stemming from European citizenship shall not be denied if the dual citizen intends to exercise such rights in another Member State. Undoubtedly, it is not rare that descendants of Italian emigrants previously settled in Argentina and Brasilia wish to reside either in Union Member States such as Spain or Portugal. Similarly, ‘a large number of European States offer citizenship on the basis of descent or identifying identification with a particular nation, often with considerable impact on bilateral relations’.40 The case of the Moldavian-Romanian dual citizens resulted in a more severe conflict as many Moldavian citizens who recently acquired Romanian citizenship decided to exercise their rights as EU citizens and chose to reside in Italy instead of Romania.41 The situation is similar in Bulgaria where many Macedonian and Moldavian descendants have taken up Bulgarian citizenship solely to acquire a Bulgarian passport, which entitles them to move and reside freely within the territory of the EU.42 Moreover, according to a Bulgarian legislative proposal, domestic citizenship (and with it, also European citizenship) could be acquired on a purely financial basis.43 Following indepen-

38 The writing published with the title of ‘New wave of migrants acquire rights to over flow the United Kingdom’ warns the British population that almost half a million Ukrainian and Serbian citizen could gain rights to live, work, request and receive benefits in the United Kingdom. See: TÖTTŐS ibid. 39 The judgement adopted by the CJEU in the C-360/90 Micheletti case (ECR 1992, p. I-4239. 40 Florian Bieber, ‘Dual Citizenship Can Be a Solution, Not a Problem’, EUI Working Paper RSCAS 2010/75.19. 41 Szabó ibid., O. Vonk ibid., pp. 336-337. 42 Bulgaria principally provided citizenship en mass to Macedonians. Currently, almost half a million Macedonian own a Bulgarian passport, www.kettosallampolgarsag.mtaki.hu/sajto/MFketosI.pdf. 43 If a foreigner invests at least LEV 600,000 in Bulgaria in order to boost the economy, the state affords citizenship in return.

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dence, Croatia immediately provided citizenship to its compatriots living outside the Croatian borders. As we see, several European countries ensure citizenship on the basis of ethnicity, what is more, it is not inconceivable that in some countries, citizenship may even be bought for a decent sum of money.44 In light of the above-mentioned facts, it seems that providing citizenship on the grounds of ethnicity is justifiable, taking into account the fact that pursuant to Section 2 of Article 4 of the Treaty on the European Union, the EU is based on the respect for the national identities of the Member States. Certain preferences and provisions regarding dual citizenship may lead to noteworthy results. To mention an extreme example, according to the Spanish ‘Historical Memory Law’, the grandsons and granddaughters of those who defected between 1936 and 1955, moreover those, whose mother or father had been a Spanish citizen could acquire Spanish citizenship. Eligible persons could submit their request at the Spanish consulates and were not required to renounce their previous citizenship. Following the day when the Historical Memory Law came into effect, hundreds of people lined up in front of the Spanish embassy in Havana. It seems almost every Member State has adopted rules that could be worrisome for other Member States affected due their liberal approaches. Putting aside these real or perceived concerns, Member States should rather consider the question how such liberal provisions could be assessed in the light of those conservative and strict national provisions that are applied to third country citizens who have no privileged status, while at the same time, they actively participated in the social and economic life of the Member State for decades.45

7.4

Conclusion

It is evident that Member States do not easily give up their remaining autonomy in regulating citizenship. Citizenship as such symbolises one of the main pillars of state independence. It seems highly probable, however, that with time the Member States recognize the expediency of laying down minimum standards regarding certain aspects of citizenship rules, for instance in the ambit of naturalisation. As Bauböck states, it is time to start a

44 A large number of European states. 45 It is worth highlighting the situation of third country family members of EU citizens, who often exercise the right to free movement between Member States in order to acquire an autonomous status later on. Judit Tóth points out more sharply: ‘[…] The parallel development of the legal and social dimension of EU citizenship excludes those who are third country citizens according to the terminology of EU law, even though they have been living and paying taxes in the EU for decades’, http://beszelo.c3.hu/03/10/03toth.htm.

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serious discussion about minim standards and good as well as bad practices in matters of citizenship.46 However, Minimum standards may only be laid down if Member States can retain their general competence to regulate citizenship. The permanent residence status in respect of third country citizens is a good example illustrating legal harmonisation that resulted in a unified status. Minimum harmonisation would not terminate national citizenship in any way and Member States would not be forced into a federal Europe. Member State citizenship would establish the relationship between the individual and the state; therefore, the problem indicated above would be partially resolved. It is clear, however, that this can only be a long-term goal. Rectifying the current tensions deriving from the features of dual citizenship is more pressing and it is up to the EU to take certain steps. As I mentioned earlier, the issue of Moldavians residing in Italy generated serious resentment on the Member State level and the Italian minister responsible for European affairs requested that the European Commission assess the case. In this situation Romania could effectively refer to Section 2 of Article 4 of the Treaty on the European Union according to which ‘the Union shall respect the equality of Member States before the Treaties as well as their national identities […].’47 However, we cannot overstate that Member States can purely exercise their rights by taking into account EU law. In case Member States do not fulfil their obligation to comply with EU law the European Commission needs to take the necessary steps in order to eliminate existing discrepancies. The Slovak amendment of the nationality law is also calling for certain measures. To quote Judit Tóth’s metaphor, it is a great challenge to unravel the ‘tangled lines of national identity, European citizenship and human rights’. Nevertheless, in each situation, particularly in cases such as those described above, we must consider that the EU is based on the principles of rule of law, democracy and non-discrimination. The lack of certain steps taken by the European Commission to protect and maintain these fundamental values could be interpreted as a de facto denial of common European principles clearly destroying the solidarity between European peoples and the chance to resolve national conflicts between the Member States.

46 R. Bauböck, ‘Dual Citizenship for Transborder Minorities? How to Respond to the Hungarian-Slovak Titfor-Tat?’, EUI Working Paper RSCAS 2010/75.4. 47 See more about this issue: Alejandro Saiz Arnaiz and Carina Alcoberro Llivina, National Constitutional Identity and European Integration, Intersentia, Cambridge, 2013.

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Multiple Citizenship – A Break with the One Man, One Vote Principle?

Petra Lea Láncos*

8.1

Introduction

The current concept of citizenship was formed by the period of centralization and the construction of the nation state in the nineteenth century. In the effort of constructing the nation, the exclusive relationship between the state and its citizens acquired a remarkable significance.1 This approach to citizenship is vividly illustrated by the Nottebohm judgment of the Hague International Court of Justice rendered in the mid-twentieth century, according to which nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State.2 Although the trends in the development of international law seem to substantiate the exclusive concept of citizenship put forward in Nottebohm judgment and the Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws expressly seeks to prevent situations of multiple citizenship,3 by the end of the twentieth century a * 1

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3

Adjunct professor, Péter Pázmány Catholic University, Faculty of Law; Legal advisor to the Hungarian Ombudsman for Future Generations. E-mail: [email protected]. Carine Bachmann and Christian Staerklé, ‘The Meanings of Citizenship: From Status to Social Process’, in Carine Bachmann et al. (Eds.), Reinventing Citizenship in South Caucasus, Final Research Report, SCOPES (2003), pp. 16-21. Charlotte Ene et al., ‘From European Citizenships to EU Citizenship’, 8 European Journal of Science and Theology (2012) Suppl. 1, p. 164. Nottebohm, Liechtenstein v. Guatemala, Judgment, 1953 I.C.J. 111 (18 November). For a deconstruction of the Nottebohm concept see: Mike Bottery, ‘The End of Citizenship? The Nation-State, Threats to Its Legitimacy, and Citizenship Education in the Twenty-First Century’, 33(1) Cambridge Journal of Education (2003), pp. 102-113. See second paragraph of the preamble of the Convention on Certain Questions Relating to the Conflict of Nationality Laws, the Hague – 12 April 1930.

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significant number of states seem to abandon such a restrictive interpretation of citizenship and are less reluctant to accept multiple citizenship.4 The concept of citizenship as an exclusive bond between the state and the citizen has become particularly outdated in the European Union,5 as with the introduction of union citizenship as well as the ensuing rights of non-discrimination6 Member State citizenship has gradually lost its distinctiveness,7 its practical relevance has been significantly reduced in scope.8 Parallel to these developments the majority of the Member States introduced favourable conditions9 for the naturalization of persons who left the state or lost their citizenship for reasons of changing borders,10 political persecution11 or economic migration,12 but remain bound to the country of origin for reasons of common culture, language or descent. The wide acceptance of multiple citizenship13 as well as the aspiration of Member States to extend their citizenship to a widening scope of aliens results in a significant rise in situations of multiple citizenship. The number of union citizens is increased by way of the Member States’ naturalization of third country nationals,14 however, a potential challenge

4 5 6

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8 9

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Sándor Illés, ‘Többes állampolgárság három perspektívából’, in Andrea Kiss et al. (Eds.), Táj, környezet és társadalom, SZTE Éghajlattani és Tájföldrajzi Tanszék (2006), pp. 316, 319. ‘The special feature in the transnationalism of migrants is that their status disintegrates the exclusive relationship with the territory and population of the state’, Sándor Illés citing Judit Tóth, ibid., p. 316. At the same time ‘the Union regards this relationship as an ethnically, linguistically and culturally independent, neutral and purely legal bond, which resembles citizenship, although that it is not.’ Judit Tóth, ‘Miért nem lehet, ha szabad? A többes állampolgárság a nemzetközi és az európai közösségi jog felől’, 2 Romániai Magyar Jogtudományi Közlöny (2004), p. 10. Illés draws attention to the fact that ‘according to the post-national model of citizenship, the significance of citizenship will gradually decline with the general recognition of individual fundamental freedoms and the enforcement of supranational norms, whereby the relative advantage attached to citizenship as a status offering certain privileges as opposed to immigrant and other migrant statuses will decline’, Illés (2006), p. 317. Szabó Marcel, International Law and European Law Aspects of External Voting with Special Regard to Dual Citizenship (megjelenés alatt), 3. o. ‘Seven of the old member states and all new ones permit their emigrants to transfer their citizenship by descent from generation to generation without any residence requirements in the country of origin.’ Rainer Bauböck, ‘Kik Európa polgárai?’, EUROZIN, www.eurozine.com/articles/article_2008-06-26-baubock-hu. html (2008). Bauböck points out that citizens of one state which are culturally bound to another state constitute a special problem for citizenship law – this is typically the case when state borders are redrawn in the aftermath of international conflicts and those living in the affected regions must assume a new citizenship as well as becoming a minority in their new state. Bauböck op. cit. Bundesvertriebenengesetz (Gesetz über die Angelegenheiten der Vertriebenen und Flüchlinge (1953). Hermann Kurthen, ‘Germany’s Coming Out: Citizenship and Immigration Reform Since Unification’, in Ruth A. Starkman (Ed.), Transformations of the New Germany, Palgrave (2006), pp. 183, 186-187; in Spain Ley 51/1982, de 13 de julio offers symbolic citizenship to the descendants of those who fled the Franco regime. See the Portugese rules on multiple citizenship, Nuno Piçarra and Ana Rita Gil, Country Report: Portugal, EUDO Citizenship Observatory, European University Institute, http://eudo-citizenship.eu/docs/CountryReports/Portugal.pdf (2012), p. 25. Tóth op. cit., p. 11. Art. 9 of TEU: ‘Every national of a Member State shall be a citizen of the Union.’

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to European democracy is posed not by such naturalizations. Namely, the naturalization of the citizens of other Member States may also give rise to democratic concerns regarding the principle of one man, one vote. In the following I will examine the challenges posed by the naturalization laws of Member States in the light of European democracy.

8.2

Multiple Citizenship, Multiple Voting Rights and the ‘One Man, One Vote’ Principle

The voting rights of multiple citizens give rise to concerns rooted in constitutional philosophy. In particular, the extention of voting rights to persons who – for lack of domestic residence – only come into touch with the respective state’s economic, social and political life sporadically, can be deemed problematic. According to Follesdal, ‘The political right of citizenship gives expression to the general norm that those affected by the use of public power should also be in a position to influence that use.’15 And vice versa: those unaffected by the central government should not participate in the formation of the same. In the case of citizens residing abroad, this special requirement is not met. It is important to note that citizenship (and possibly also voting rights) granted by the Member States to persons residing abroad is often a sort of compensation for a historic injustice. Those granted citizenships are generally bound to the nation by cultural, linguistic or ethnic ties. At this point, it is worth mentioning the fact that Member State citizenship constitutes a special bond to the nation. Union law – albeit inexplicitly – affords protection to this special relationship by granting foreign union citizens the right to vote only in local municipal and European Parliamentary elections in the Member State of residence. Thus, it excludes aliens – be they union citizens or not – from voting in national parliamentary elections which determine the immediate future of the nation. As a result of the interplay of national law and Union law, we can discern three categories of persons exercising their voting rights in the Member States: – Union citizens with residence in their country of origin, participating in municipal, national and European Parliamentary elections in their own country of citizenship; – Migrant union citizens with residence in another Member State, participating in municipal and European Parliamentary elections in the country of residence, while voting in national parliamentary elections in their country of citizenship;

15 ‘Moreover, as persons equally worthy of respect, the individuals subject to public rule should also have an equal say in how they should be ruled. Without such political rights, individuals remain subjects.’ Andreas Follesdal, ‘Third Country Nationals as Euro-Citizens – The Case Defended’, http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=1744105 (1999), p. 6.

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– Multiple citizens with more than one Member State citizenship, participating in the national parliamentary elections in all their countries of citizenship, while voting in municipal and European Parliamentary elections in their country of residence; – Multiple citizens with both Member State and third state citizenship, partipating in the national parliamentary elections of a Member State and a third state of citizenship and – in case of domestic residence in a Member State – voting in the municipal and European Parliamentary elections in the Member State of residence. The latter two categories seem to break with the constitutional principle of equal votes. Since European integration brought about the extension of traditional citizenship right to migrant union citizens and states are attempting to regulate the conditions for the fulfillment of citizens’ duties through international treaties, Illés claims that ‘the last resort for the political community of host states against the introduction of multiple citizenship could be the breach of the principle of “one man, one vote”’.16 In the following I shall assess the enforcement of the principle of equal votes in the light of the establishment of Union institutions and seek to answer the question, how wellfounded the arguments against the multiple voting rights of multiple citizens actually are. Multiple citizenship: Multiple voting and degressively proportionate representation in the European Parliament

8.3

The Prevention of Multiple Voting

According to Article 10 paragraph 3 TEU ‘Every citizen shall have the right to participate in the democratic life of the Union.’ Union citizenship participate in the democratic life of the Union as a political community among others through exercising their right to vote. Based on Article 39 paragraph 1 of the Charter of Fundamental Rights of the Union ‘Every citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State.’ The federal structure of the Union is reflected in Article 10 paragraph 2 TEU, which reads: Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens. 16 Illés, op. cit., p. 319. Päivi Harinen et al., ‘Multiple Citizenship as a Challenge for Finnish Citizenship Policy Today’, in Devorah-Kalekin Fishman and Pirkko Pitkänen (Eds.), Multiple Citizenship as a Challenge to European Nation-States, Sense Publishers 2007. p. 124.

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Thus, union citizens contribute to the establishment of the democratic institutions of the Union directly by voting in the European Parliamentary elections and indirectly by participating in the national elections of their country of citizenship. Union citizens elect the members of the European Parliament by direct universal suffrage in a free and secret ballot.17 The fact that the European Parliament is formed as a result of European Parliamentary elections organized on the national level poses interesting questions with respect to equal voting rights of union citizens. Although European Parliamentary elections have been held for over three decades, the Member States have failed to elaborate and agree upon a uniform electoral system. Instead, Member States merely codified minimum rules related to the organization of European Parliamentary elections on the national level. The possibility of double voting may arguably be raised as regards union citizens holding multiple citizenship, since we may presume a greater inclination towards migration from the side of union multiple citizens. At the same time, the argument of the possibility of double voting may not be reasonably raised against the recognition of multiple citizenship, as the eventuality of double voting stems not from their multiple citizenship but much rather from their status of being migrants, which status however, is open for all union citizens irrespective of the number of citizenships they hold. Although union law makes no explicit reference to equal voting rights, it is safe to say that the prohibition of double voting enshrined in Article 4 paragraph 1 of Directive 93/109/EC as regards certain detailed arrangements for the exercise of the right to stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals serves as a guarantee of equal voting rights.18 According to Article 9 of the Directive, union citizens wishing to participate in the elections outside their country of citizenship will produce documents evidencing their nationality and address in the electoral territory of the Member State of residence, as well as the locality or constituency in their home Member State on the electoral roll of which their name was last entered. Article 13 provides that the Member States shall exchange such data in order to prevent double voting. As regards multiple citizens holding the citizenship of a Member State and that of a third state, in case they lack a place of residence in one of the Member States they shall be unable to exercise their right to vote in the EP elections, while if they possess one or more addresses in the Member States the formalities for exercising their voting rights will also be governed by Directive 93/109/EC in order to prevent instances of double voting. 17 Art. 39 Para. 2 of the Charter of Fundamental Rights of the European Union. 18 Art. 4 of Directive 93/109/EC provides that: ‘1. Community voters shall exercise their right to vote either in the Member State of residence or in their home Member State. No person may vote more than once at the same election. 2. No person may stand as a candidate in more than one Member State at the same election.

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8.4

The Effect of the Degressively Proportionate System on Equal Voting Rights

In the Member State they vote in, voters may cast their votes for a number of candidates in the European Parliament elections determined in a degressively proportionate system based on the population size of the respective Member State.19 The Lisbon Treaty limited the number of MEPs in 750 and determined the minimum (6 representatives) and maximum (96 representatives) number of MEP’s per Member State. In practice, this means that the smaller Member States are overrepresented, while larger states are underrepresented in the number of MEP’s: while an MEP elected in Germany represents 857,000 voters, an MEP elected in Malta represents merely 67,000 voters. This means that there is a twelvefold difference between the voting power of the voters located at the two extremities of the number of MEP’s. The so-called Lisbon ruling of the German Federal Constitutional Court examined inter alia the equality of the voting rights of union citizens in the ambit of European Parliament elections. According to the constitutional complaint submitted to the Bundesverfassungsgericht: ‘despite the increase in the competences of the European Parliament, it does not have a democratic legitimacy until it is elected on the basis of democratic equality.’ According to the German Federal Constitutional Court, democracy as a constitutional principle forms part of the eternal, irrevocable core of the German constitution.20 An inseparable part of democracy as a principle is that citizens elect the representatives of the public authority in a free and secret ballot, while the right to a free and equal participation in the exercise of power is based on equal human dignity which is also part of the eternal content of the German constitution.21 Representative democracy has a substantial feature, namely that the majority of the will of the voters will be recognised either in the parliament or in the government.22 Although ‘the new political official authority’ realized in the framework of European supranational cooperation is not required to slavishly copy national institutional solutions23 and the ‘one man, one vote’ principle may not be transferred to a supranational institution,24 equal suffrage is a mandatory legal principle which is also stipulated in Article 3 of the additional protocol to the European Convention on Human Rights.25 According to the Bundesverfassungsgericht, the European Union itself recognises

19 See in detail: Johannes Pollak et al., Citizens’ Weight of Vote in Selected Federal Systems, Study. Directorate General for Internal Policies, 2011, p. 6. 20 BVerfG, 2 BvE 2/08 vom 30.6.2009, p. 216. 21 BVerfG, 2 BvE 2/08 vom 30.6.2009, p. 212. 22 BVerfG, 2 BvE 2/08 vom 30.6.2009, pp. 213. 215. 23 BVerfG, 2 BvE 2/08 vom 30.6.2009, p. 219. 24 BVerfG, 2 BvE 2/08 vom 30.6.2009, p. 279. 25 BVerfG, 2 BvE 2/08 vom 30.6.2009, p. 283.

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this democratic principle.26 Being elected not by equal suffrage and not by uniform electoral procedure, but on the basis of contingents, the European Parliament is not a real parliament,27 but much rather an assembly of the nations of the Member States28 in which the majority of the votes cast by the MEP’s does not guarantee the support of the majority of union citizens.29 The fact that the Lisbon Treaty has introduced new forms of democratic participation may not replace equal suffrage of the members of the demos.30 The European Commission and the European Parliament have taken the concerns of the Budesverfassungsgericht so seriously that they issued a study in order to refute the points of the Lisbon judgment. According to the main findings of the study it is not justified to force representation operating on the basis of ‘one man, one vote’ principle employed by the Member States on the supranational political community, since representation is not only realized through the European Parliament, but also other informal systems. With respect to representation not it is not numericality, but much rather transparency, accountability and capability that are the decisive factors.31 In addition, the European arena also features new actors, such as agencies and bureaus which come into contact with union citizens and form part of the democratic system. However, this argument may be criticised on several points. On the one hand, it may not be ignored that although the European Union is not a state, it exercises powers transferred by the Member States and – parallel to fulfilling traditional tasks of the state – it seeks to establish democratic structures borrowed from the member countries. It seems to be a rather ambivalent line of arguments that although similarly to states, the European Union directly determines the rights and obligations of citizens, operates democratic institutions and on the basis of Article 10 TEU ‘is based on representative democracy’, it is not required to correspond to the generally accepted principles of democratic systems, including the principle of equal suffrage. This argumentation is also defeated by the fact that the relevant chapter of the TEU entitled ‘Provisions on democratic principles’ reads: ‘In all its activities, the Union shall observe the principle of the equality of its citizens.’ In addition, it is grossly misleading to point to exactly those agencies as complementary instruments of democracy which are situated beyond democratic control and totally lack democratic legitimacy. Furthermore, although the Union seeks in vain to establish other forms of representative democracy these of insignificant number as compared to their Member States equivalents, moreover, they typically end up with a low turnout. Finally, the equality of suffrage and the majority principle may not be replaced by transparency, 26 27 28 29 30 31

BVerfG, 2 BvE 2/08 vom 30.6.2009, p. 271. BVerfG, 2 BvE 2/08 vom 30.6.2009, p. 280. BVerfG, 2 BvE 2/08 vom 30.6.2009, p. 284. BVerfG, 2 BvE 2/08 vom 30.6.2009, p. 280. BVerfG, 2 BvE 2/08 vom 30.6.2009, pp. 295-297. See in detail: Johannes Pollak et al., Citizens’ Weight of Vote in Selected Federal Systems, Study Directorate General for Internal Policies, 2011, p. 7.

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accountability and performance, since the former pertains to the establishment of the European Parliament and in-put legitimacy, while the latter enhance the functioning of a democratic system and its formal, material and out-put legitimacy. It is exactly for reasons and considerations, that it is more than justified to enforce the principle of equal suffrage. Despite all these considerations, it cannot be said that a break with the principle of equal suffrage does not pose problems. The Union legislation itself provides merely that European Parliament elections be general, direct, secret and proportional,32 the issue of equal suffrage arises only indirectly in relation to the prohibition of double voting. Nevertheless, in keeping with the approach of the German Federal Constitutional Court, the principle of equal suffrage may be deduced from the principle of democracy stipulated amongst the values enshrined in Article 2 TEU. It must be pointed out however, that Union legislation regulates the value of democracy on the same level as the distribution of the number of MEP’s per Member State, thus, the latter may be interpreted as a type of lex specialis. On the other hand, it may be stated that it is questionable exactly on the grounds of migration, whether one can talk about ‘weak’ German or ‘strong’ Maltese votes, since here suffrage is linked not to the citizenship, but to the domicile of the union citizen eligible to vote. The point is much rather that in the European Parliament elections, a vote cast in a given Member State shall be ‘weaker’ or ‘stronger’ than the votes cast in the other Member States. As a hypothetical possibility, there is the risk that if a Member State grants multiple citizenship to nationals of third countries who have strong cultural and linguistic ties to the given Member State, this may ‘attenuate’ the voting power of its own constituencies in the European Parliamentary elections. However, this is a real danger only if the individuals recently naturalized and thus acquiring union citizenship arrive in great numbers from third countries and continue to stay in the territory of the Member State concerned. Consequently, the Member State itself may contribute to the growth of its population and to the decline of the voting power of its citizens until the next distribution of the number of the MEP’s per Member State. Finally, in the even that the recently naturalized citizens change their place of residence, this effect appears as an externality on the side of other Member States. It could occur that the naturalizing Member State successfully integrates its new citizens and – through the redistribution of the number of the representatives reflecting the increase in population due to the influx of naturalized citizens – the constitutencies of the given Member State acquire increased voting power in the European Parliament.

32 Art. 14 Para. 3 TEU: The members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot.

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8.5

Multiple Citizenship – A Break with the One Man, One Vote Principle?

The Possibility of Double Voting in the Council of the European Union

As for the Council, union citizens contribute with their votes cast in the national parliament elections to the establishment of this democratic institution of the Union. Union citizens possessing multiple citizenship may potentially contribute to the formation of the Council – the ‘senate’ of the Union – on various occasions. The Council is formed indirectly as a result of the national parliamentary elections held in the Member States. In relation to the Council, Union legislation stipulates only the number of the Council votes Member States hold and since national parliament elections contribute to the establishment of the national governments, the regulation of the election procedure falls entirely within the discretionary powers of the Member States. Contrary to the provisions of Directive 93/102/EC concerning the election of the European Parliament serving the aim of avoiding double voting,33 national parliament elections resulting in the establishment of the Council are outside the scope of mutual controls of the Member States. Hereinafter, I will demonstrate the question of double voting of union citizens possessing multiple citizenship on the example of the Hungarians living abroad, adding that the statements made here may be valid also in relation to multiple citizens of other Member States. According to Article XXIII paragraph 1 of the Fundamental Law of Hungary: Every adult Hungarian citizen shall have the right to vote and to be voted for in elections of Members of the National Assembly, local government representatives and mayors, and of Members of the European Parliament. Therefore, those Hungarians living abroad, who obtained Hungarian citizenship and are citizens of another Member State at the same time, may cast their vote and stand as a candidate in the national elections of both their original Member State and Hungary. According to the paragraph 4 A cardinal Act may provide that the right to vote and to be voted for, or its completeness shall be subject to residence in Hungary, and the eligibility to be voted for shall be subject to additional criteria.

33 Council Directive 93/109/EC of 6 December 1993 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals.

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However, such criteria were not stipulated, so that Hungarians living abroad may take part in the elections in question also in case they have no residence in the territory of Hungary, insofar as they meet their registration obligation stipulated by law. In this respect, András Jakab draws attention to the fact that the text of the original Constitution and later, that of the Fundamental Law, as well as the Constitutional Court’s case-law prescribes the equality of suffrage.34 According to Article 2 paragraph 1 of the Fundamental Law: Members of the National Assembly shall be elected by universal and equal suffrage in a direct and secret ballot, in elections which guarantee the free expression of the will of the voters, in a manner laid down in a cardinal Act. In the light of the foregoing, the question may arise whether the fact that individuals possessing multiple citizenship of several Member States may potentially participate in the national parliamentary elections of more than one Member State, violates the requirement of equal suffrage at the EU level. With their participation in various national elections held in different Member States, multiple citizens have practically more votes to cast in the establishment of the Council than their fellow citizens who do not possess multiple citizenship. Although according to the case-law of the Court of Justice of the European Union it is contrary to the prohibition of discrimination to treat multiple citizens the same way as those possessing only one citizenship, this requirement shall manifestly not be applied to those situations, where – contrary to the principle of equal suffrage based on equal human dignity – multiple citizens may acquire a more advantageous position than other union citizens. The European Convention on Human Rights ratified by all Member States, serving as a source of inspiration for the system of fundamental rights protection in the Union and specified in the Charter of Fundamental Rights with the same content and level protection, prescribes the equality of suffrage.35 However, several arguments may be raised against this concern. First of all, the principle of equal suffrage may be raised with regard to the elections under the jurisdiction of one and the same state. That is: the fact that a multiple citizen may participate in the national elections of different Member States, does not infringe the principle of equal suffrage, since the union citizen takes part in all relevant elections once, just like those compatriots who do not possess multiple citizenship. Contrary to the elections of local governments in which multiple citizens may participate only in the elections organized at their place of residence, national parliamentary elecetions are aimed establishing a body defining the way forward for society at large. Since multiple citizens have a link to several Member

34 Jakab András, ‘A külföldön élő magyar állampolgárok választójoga egyenlőségének kérdése a választási törvény koncepciójában’, Pázmány Law Working Papers (2011, 38), p. 2. 35 Ibid., p. 3.

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States at the same time, it is justified that they participate in the parliamentary elections of all Member States of which they are a citizen. Due to the fact that – contrary to the European Parliament – the Council is not formed as a result of direct elections and its members cannot be elected, for lack of a direct election the principle of equal suffrage cannot be violated either. Secondly, the Council acts as ‘senate’ representing Member State interests. Contrary to MEP’s in the European Parliament whodirectly represent the interests of the voters (union citizens) and with regard to which the prohibition of dual voting is justified,36 governments established by the parties successful in national elections37 enforce the interests of the Member States in an abstract way. On the basis of the typology of András Jakab, three types of upper houses may be distinguished: aristocratic upper house, corporative chambers and federal chambers which are characteristic of federal states. The Council may be considered a federal chamber. According to Jakab ‘a federal chamber has the function of strengthening the representation of states with a low population, so that large member states cannot automatically outvote them in the lower house established on the basis of population ratios’.38 Exactly this function of a federal chamber is enforced through qualified majority voting applied most frequently in the Council enabling the formation of a blocking minority.39 Therefore, since the Council represents the abstract interests of the Member States and is formed indirectly through national

36 ‘The Directives regulating European Parliamentary elections also render the situation of dual citizenship uncertain: in the course of the election of MEPs everyone can only vote once, i.e. in one constituency and the union citizen can freely decide whether to vote in his or her country of citizenship or place of residence, while the issue of dual citizens, who possess the citizeship of multiple states and may therefore even cast their votes in two states is left unregulated.’ Kárpát-medencei Képviselők Fóruma (2010), p. 16. Although the Directive 93/109/EC does not regulate the EP election of dual citizens, Para. 1 of Art. 4 prohibits dual voting in general and on the ground of the procedure layed down in the Art. 13, the Member State which registered the voter in the electoral roll cooperates with the country of origin in order to avoid dual voting. Although the situation arising from multiple citizenship is not stipulated in this rule, the application of Art. 13 of the Directive together with the regulations layed down in Art. 10 provides sufficient guarantees in respect of the implementation of the rules above also in these cases: ‘(1) When he submits his application to stand as a candidate, a Community national shall produce the same supporting documents as a candidate who is a national. He shall also produce a formal declaration stating: (a) his nationality and his address in the electroal territory of the Member State of residence; (b) that he is not standing as a candidate for election to the European Parliament in any other Member State, and (c) where applicable, the locality or constituency in his home Member State on the electoral roll of which his name was last entered.’ In spite of that, according to Tóth Judit about a million and a half voters cast their votes in the European Parliament elections twice, Tóth op. cit., p. 11. 37 Exactly therein lied the point of the democratic deficit of the EU prior to the date of entry into force of the Lisbon Treaty: the members of the Council have a link to the eligible voters only with a lengthy chain of legitimacy, in a multiply indirect way. 38 Jakab András, ‘Miért nincs szükségünk második kamarára?’, XX(1) Politikatudományi Szemle (2011), p. 9. 39 Ibid.

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elections, the requirement of equal suffrage may not arise in respect of this Union institution.40

8.6

Summary

Above, I have tried to find an answer to the question, whether multiple citizenship situations pose real challenges to the enforcement of the principle of equal suffrage within the European Union. In the course of the examination of the rules framed for the prevention of dual voting, it became clear that the enforcement of equal suffrage in the European Parliament depends primarily not on the status of multiple citizenship, but on migrant situations and the practical difficulties of applying Directive 93/109/EC. The problem of voting power distorted by the degressively proportionate system is a result of the political bargain of the Member States which – considering also the internal migration in the Union – shall probably not be significantly rewritten by the individual naturalization processes of the Member States. Finally, I examined whether the fact that multiple citizens participating in several national elections at the same time and contributing to the formation of the Council, violates the principle of equal suffrage. I arrived at the conclusion that since the Council is not formed as a result of direct elections and its purpose is to represent the abstract interests of the Member States, the principle of equal suffrage is not infringed by the participation of multiple citizens in different Member States’ national parliamentary elections. On that basis, it may be stated that multiple citizenship does not pose a challenge to European democracy and the generally accepted principles of suffrage.

40 For a opposing view see: Joachim K. Blatter, ‘Dual Citizenship and Democracy’, Global Governance and Democracy Working Paper Series WP 01 (2008), p. 10.

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9

The Baka Case – The Unbearable Price of Individual Justice

Mart Susi* On May 27, 2014, a chamber of the European Court of Human Rights delivered its judgment in Baka v. Hungary,1 the first case ever decided by the permanent Court2 where it had to evaluate the compatibility of a Council of Europe member country’s constitutional reform with some provisions of the European Human Rights Convention.3 The Court found unanimously that the early termination of the applicant’s, Mr. András Baka’s mandate as President of the Hungarian Supreme Court and the National Council of Justice, undertaken in the midst of Hungarian Constitutional reform, violated Articles 6(1) and 10 of the European Convention on Human Rights.4 In this judgment unfolds the fundamental conflict written into the international human rights protection system – whether the sovereign power of any country to pass constitutional legislation prevails vis-a-vis its international obligation to protect fundamental rights.5 The judgment is also significant as the international judges adopted it towards one of ‘their own’ – Mr. Baka served for

* 1 2 3 4

5

Docent of Public Law, Head of International Research Center of Fundamental Rights, Tallinn University Law School; E-mail: [email protected]. Baka v. Hungary, Appl. No. 20261/12, ECtHR judgment of May 27, 2014. The judgments and decisions of the European Court of Human Rights are available through www.echr.coe.int. Protocol 11 to the European Human Rights Convention set up a single permanent Court, as of November 1, 1998, in place of the previous two-tier system of a Court and a Commission. Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, ETS No. 5, 213 UNTS 222. Art. 6(1) 1st sentence provides: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’ Art. 10 (1) provides: ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.’ For discussion about every country’s right to self-determination and acceptable restrictions to its sovereignty see: A. Avbely, ‘European Court of Justice and the Question of Value Choices: Fundamental Human Rights as an Exception to the Freedom of Movement of Goods’, Jean Monnet Working Paper 6 (2004); Raul Narits, ‘The Republic of Estonia Constitution on the Concept and Value of Law’, VII Juridica International (2002), pp. 10-16.

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seventeen years (1991-2008) as a judge at the European Court of Human Rights in Strasbourg.6 Mr. András Baka was elected as President of the Supreme Court by the Parliament of Hungary on June 22, 2009, for a six-year term. In this capacity he was also President of the National Council of Justice, where his explicit statutory obligation was to express opinions on legislative initiatives that affected the entire judiciary. After the formation of the Fidesz-Hungarian Civil Union following the 2010 April parliamentary elections, a program of comprehensive constitutional reform in Hungary was launched.7 This reform involved judicial matters such as annulling certain judicial decisions through legislation, reducing the mandatory retirement age of judges from seventy to sixty-two, as well as amending certain judicial procedures and making changes to the organization of the judicial system. The applicant was publicly and highly critical of these proposed changes, addressing together with the presidents of Hungarian regional courts a communiqué to the Hungarian and European public against the lowering of the mandatory retirement age of the judges and using for the first time in Hungarian judicial history the prerogative of the President of the Supreme Court to challenge before the Constitutional Court a legislative change – the applicant challenged the Attorney General’s right to establish court competence – on grounds of unconstitutionality and violation of Hungary’s international obligations. The Hungarian Government and Parliament proceeded with the legislative proposal nevertheless, finding the applicant’s influence ‘unfortunate’.8 Article 25(1) of the new Fundamental Law of Hungary changed the name of the Supreme Court to Kúria (hereinafter: Curia), which is the historical Hungarian name for the highest court. The Transitional Provisions of the Fundamental Law of Hungary Bill, adopted as a Cardinal Act which requires a two thirds majority, was adopted by the Parliament on December 30, 2011, and was published the following day. According to section 11(2), the mandates of the President of the Supreme Court and the President and members of the National Council of Justice were terminated with the coming into force of the Fundamental Law, which was the following day on January 1, 2012. Article 1 of the Transitional Provisions Bill separated the functions of the President of the former Supreme Court and National 6 7

8

The applicant was also elected by the General Assembly of the Network of the Presidents of the Supreme Judicial Courts of the European Union as its President for 2011-2013. The constitutional reform led to the adoption of the Fundamental Law of Hungary, which entered into force on January 1, 2012. This Fundamental Law succeeded the previous Hungarian Constitution of 1949. The international community has been predominantly critical of the new Fundamental Law – see, for example, the Opinion on the Fundamental Law of Hungary, adopted by the Venice Commission at the 87th Plenary Session – CDL-AD (2011)016, or the 6 November 2012 judgment of the European Court of Justice in Case C-286/12, noting that Hungary had failed its obligations under Council Directive 2000/78/EC by lowering the mandatory retirement age of judges, prosecutors and notaries. The term ‘unfortunate influence’ by a member of the judiciary over the legislative process was used on March 08, 2011, press conference by Chairman of the Parliament’s Constitutional Committee – see Baka v. Hungary judgment, Para. 12.

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Judicial Office, built on the reasoning that these two institutions have separate functions. Before this, on November 9, 2011, a new criterion was introduced into the law governing the election of the President of the Curia – a candidate had to have prior appointment for indeterminate duration with at least five years of judicial service.9 Since Mr. Baka’s service at the European Court of Human Rights did not meet the new criterion of ‘indeterminate duration10’ and he had not served in Hungary as a judge for five years, his candidacy was precluded. His mandate as the President of Hungarian highest court was thus terminated on January 01, 2012, which is three and a half years earlier than was anticipated at the time of his election to the position. There was strong international reaction from European institutions univocally criticizing Mr. Baka’s removal from Presidency.11 Before the European Court of Human Rights, Mr. Baka argued, first, that he had been denied access to a tribunal to challenge the early dismissal as President of the Supreme Court. Since the dismissal was the result of constitutional level legislation, he was deprived of any possibility to seek judicial review, even by the Constitutional Court. In response, the Government stated that the termination of the post was justified on objective grounds in the State’s interest. The applicant further argued that he had been dismissed as a result of the views expressed publicly in his official capacities on four issues of fundamental importance for the judiciary. In the Government’s view the link between the criticisms pre-dating the termination of the mandate was not sufficiently proven. The constitutional change in the country also meant fundamental changes in Hungary’s supreme judicial authority. On the issue of denial of access to tribunal, the chamber applied the Vilho Eskelinen methodology for disputes between public servants and the state,12 which was developed by the Court in mid 2000s replacing the functional approach.13 According to this methodology two conditions need to co-exist to justify limitation of access to court. The first condition is that national law must expressly exclude access to court for a particular position and secondly, the exclusion must be justified on objective grounds in the State’s 9 10 11

12 13

Organisation and Administration of the Court Act, Chapter VIII, Art. 32, passed by the Hungarian Parliament on November 9, 2011, and entering into force on December 2, 2011. The judges at the European Court of Human Rights are appointed for a specific term. For example, the EU Justice Commissioner Mrs. Viviane Reding wrote on December 12, 2011, a letter to the Vice Prime Minister Dr. Tibor Navracsics, raising the following question about the President of the Supreme Court in Para. 3 of the Appendix: ‘[…] how is it ensured that the ending of the mandate before the end of the regular term does not effectively put in question the independence of the judiciary’ – Ref. Ares (2011) 1339212 – 12/12/2011. The EU Commission opened accelerated infringement proceedings against Hungary on the independence of the judiciary. During these proceedings the Commission also raised the question about the termination of Mr. Baka’s mandate – see European Court of Justice Case C-286/12, available through the website of the CJEU www.curia.europa.eu. Vilho Eskelinen et al v. Finland, Appl. No. 63235/00, ECtHR judgment (Grand Chamber) of April 19, 2007. According to the functional criterion, the decisive question whether a public official was precluded from challenging the dismissal at the court was whether his/her position within the State hierarchy was sufficiently important or elevated to speak of a participation in wielding State power.

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Mart Susi interest.14 It is for the Government to demonstrate that the exclusion of the right to court is justified. The Court was willing to accept that the national legislative framework denied the applicant the right to court, although this was not expressly written into the law. The Court does not specify, whether in its view the Fundamental Law is an appropriate document for inserting such a procedural matter. The chamber disagreed with the Government whether the exclusion of the right to court was justified. The Court noted: the Government have not adduced any arguments to show that the subject matter of the dispute, which related to the premature termination of the applicant’s mandate as President of the Supreme Court, was linked to the exercise of State power in such a way that the exclusion of Article 6 guarantees was objectively justified. (paragraph 77) On the issue of the infringement of the right to freedom of speech the Court had to evaluate, whether the applicant’s mandate was terminated as a result of the reorganisation of the judiciary – as the Government suggested, or as a consequence of the views which the applicant had expressed publicly on legislative reforms affecting the judiciary. The Court attached importance to the fact that Mr. Baka’s neither professional abilities nor behaviour were ever questioned. In this respect, the Baka case is different from the other two cases brought to the Court by presidents of national highest courts. In the Harabin v. Slovakia15 case the Court established a violation of the right to court of the President of the Slovakian Supreme Court, when he complained against the disciplinary measure imposed as a result of his refusal to allow the Ministry of Finance to audit the court. In the Olujić v. Croatia16 case the Court established violation of fair trial principles in a domestic case against the Chairman of the Croatian Supreme Court on charges of indecent behaviour. The Court in the Baka case noted the short duration of time when the position of the Parliamentary majority changed regarding the possibility of Mr. Baka to continue as the President of the Supreme Court. Three institutions – the Hungarian Helsinki Committee, the Hungarian Civil Liberties Union and the Eötvös Károly Institute – submitted opinions as third-party interveners. In their view, the ‘case was part of a general pattern of weakening of the system of checks and balances that had taken place in the past three years in Hungary’ (paragraph 85). Against this background, the Court concluded that, the sequence of events in their entirety corroborate the applicant’s version of events, namely that the early termination of his mandate as President of the

14 Vilho Eskelinen, Para. 62. 15 Harabin v. Slovakia, Appl. No. 58688/11, ECtHR judgment of November 20, 2012. 16 Olujić v. Croatia, Appl. No. 22330/05, ECtHR judgment of February 2, 2009.

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Supreme Court was not the result of a justified restructuring of the supreme judicial authority in Hungary, but in fact was set up on account of the views and criticisms that he had publicly expressed in his professional capacity on the legislative reforms concerned. (paragraph 96). The chamber applied its established methodology for assessing the legitimacy of interference into the Convention’s ‘soft’ rights – such as the right to privacy, freedom of thought and freedom of speech. According to this methodology the first issue is whether there was a sufficiently clear and foreseeable legal basis for the interference; next, whether the interference had a legitimate aim; and the last question concerns the necessity of the interference in a democratic society. Satisfied that the reply to the first two questions is positive, the chamber replied negatively to the third. The Court noted that the applicant had a duty to express views on the legislation affecting the judiciary, he did not exceed the limits of professionalism and the premature termination of his mandate had pecuniary consequences – the loss of income and other benefits. The fear of sanction for expressing the views in public about a matter of public importance will have a ‘chilling effect’ upon other judges. In conclusion, after a relatively short discussion of the circumstances, the Court reached a viewpoint that the early termination of the position worked to the detriment of the society as a whole, it was not proportionate and consequently there was no justification for the sanction (para 101). The applicant claimed € 742,520 in pecuniary damage (including severance allowance and pension supplement for life), € 20,000 for moral damage and € 153,532 for legal expenses. The Court reserved a decision about the remedies, pending on the possible agreement between the parties. ******** From the analytical perspective, the judgment raises three principal issues. The first concerns an international court’s competence to rule on the compatibility of a national constitution and constitutional level legislation with the provisions of an international treaty. The analysis is based on the assumption that Mr. Baka’s position was prematurely terminated as a result of constitutional level legislation – this is the main line of his own argumentation, which was accepted both by the respondent Government and the Court. Questioning that assumption leads to speculations and would not serve the purpose of analysing the Court’s judgment. Is the European Court of Human Rights authorized to judge whether a constitutional level norm of any Member State contradicts the European Human Rights Convention? Jörg Polakiewicz has divided possible national approaches to the question of the Convention’s position in domestic legal order into five categories, where the majority of Member States view the European Human Rights Convention as directly applicable law

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Mart Susi superior to domestic legislation but below the national Constitution.17 Based on this concept, the Convention is either placed between the Hungarian Fundamental Law and the statutory laws, or it has the same rank as statutory laws. The Hungarian Fundamental Law does not expressly determine the position of international treaties in the domestic legal system. Since the Parliament needs to recognize the binding force of any international treaty18 and such a treaty needs to be incorporated into Hungarian law,19 in the event of conflict between the provisions of the Fundamental Law and the Convention, the national constitution prevails. No comprehensive international legal theory recognizes the power of an international court to intervene into national legislation of constitutional level, either by ‘naming and shaming’ or requesting a change of the constitutional norm. The international debate about the judicial activism of international courts in Europe – both the European Court of Human Rights and the Court of Justice of the European Union – demonstrates expansion of their powers through evolutive interpretation of international legal norms. The CJEU not only established principles not written into the Community legal order, but it has also expanded their meaning and scope without an express consent of the Member States.20 It has been argued that the CJEU has fashioned its powers by internal evolution and has shaped a constitutional framework for a federal-type structure in Europe.21 This is called an achievement of bold judicial creativity on behalf of the CJEU itself.22 The ECtHR has assumed the right to pass pilot judgments by applying to its advantage Convention Articles 123 and 4624 in conjunction, since starting from the adoption of the Convention no additional protocols were passed which would expressis verbis empower the ECtHR with 17 The other four possible approaches are: the Convention is directly applicable international law superior to the whole domestic legal order, the Convention as part of the Constitution, the Convention with the rank of statutory law, the Convention without formal internal legal validity. See: Jörg Polakiewicz, ‘The Status of the Convention in National Law’, in Robert Blackburn andJörg Polakiewicz (Eds.), Fundamental Rights in Europe. The European Convention on Human Rights and its Member States, 1950-2000, 2001, pp. 31, 37-46. 18 Hungarian Fundamental Law, Art. E (3): ‘[…] to recognize the binding force of an international treaty 2/3 of the Members of Parliament need to agree.’ 19 Hungarian Fundamental Law, Art. P (3): ‘Hungary shall accept generally recognized rules of international law. Other sources of international law shall be incorporated into Hungarian law upon their promulgation by laws.’ 20 Michal Bobek, ‘Learning to Talk: Preliminary Rulings, the Courts of the New Member States and the Court of Justice’, 45(6) Common Market Law Review (1613). However, the author also reminds the reader that the instrument of referrals to the Court signifies the autonomous functioning of the national courts (p. 1623), but this topic remains outside of this article. 21 H. Rasmussen, ‘Between Self Restraint and Activism: A Judicial Policy for the European Court’, 28 European Law Review (1988), p. 13. 22 Oreste Pollicino, Legal Reasoning of the Court of Justice in the Context of the Principle of Equality between Judicial Activism and Self-Restraint’, 3 German Law Journal (2004), p. 284. 23 According to the Convention Art. 1 each Member State undertakes to guarantee to anyone under its jurisdiction the rights and freedoms provided in the Convention. 24 According to the Convention Art. 46 the Member States have the obligation to abide by the ECtHR judgments where they are a party.

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such authority. The ECtHR passes a pilot-judgment when it establishes a structural problem in the respondent state either in connection with the wording of a law or legal provision, their application in administrative or court practice or the absence of legal regulation.25 This self-assumed authority is sometimes accompanied by concrete requirements to change laws or adopt new legal regulations, referred to as a structural change in the ECtHR jurisprudence.26 A consequence of this judicial activism may be the increasing unwillingness of national courts or national governments to apply the Court’s rulings.27 Faced with these realities the Court should have explained in detail the source of authority for its statements that the exclusion of the right to challenge in court the premature termination of the applicant’s position (caused by a constitutional norm) was not objectively justified (paragraph 77) or that the applicant’s removal represented a ‘sanction’ (paragraph 101). A contrario in judgments where the Court has introduced its competence to intervene into statutory legislation of a Member State, the legal reasoning is exemplary and convincing. Perhaps the most unexpected feature of the Baka judgment is that the Court remained silent on the question why it is competent to interfere in Hungary’s constitutional legislation. The Court could have avoided calling a constitutional norm per se unjustified by applying a decisive, yet narrow, distinction: not to speak about the ‘justification’ of a constitutional norm, but the ‘effects’ of the constitutional norm upon the individual fundamental rights. Notwithstanding the absence of a clear basis for adjudicating on constitutional level norms, the second principal issue concerns the question whether the Court has applied consistently its case-law refined towards similar substantive and procedural violations in the past. The principal dilemma in the right to court doctrine has been who has the final say in identifying expressly those areas of public service, involving the exercise of the discretionary powers intrinsic to State sovereignty, where the interests of the individual must give way – whether it remains with the domain of the Member State or whether the Court has absolute power to decide whether the restriction was ‘justified’.28 International debate about the right to court doctrine in the Court’s jurisprudence has been predominantly critical and has pointed to the Court’s inconsistency towards such significant questions as whether access to court means that there should at least theoretically be available a court

25 For context see: Steven D. Roper and Lillian A. Barrie, Judgments of the European Court of Human Rights: A Test Case for Enforcement and Managerial Theories of State Compliance, Annual Meeting of the American Political Science Association, 4 September 2011, p. 1. 26 Laurence R. Heifer, ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Court of Human Rights Regime’, 19(1) European Journal of International Law (2008), pp. 125-129. 27 Conference at the Maastricht faculty of law, 10-11 October 2011, background paper p. 1. 28 For discussion see: Chiméne I. Keitner, ‘Jones v. the United Kingdom’, 109(2) American Journal of International Law (2014), pp. 302-308.

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Mart Susi to which the individual concerned could apply29 or what the concept exactly means that the right to court under European Human Rights Convention Article 6 (1) is lex specialis of Article 13,30 which provides a right to an effective remedy. The Court views that in access to court matters the requirements of Article 13 are entirely absorbed by those of Article 6(1).31 Regarding Article 13 the Court has developed a position that it does not ‘go so far’ as to provide a right to challenge a provision of a domestic legal norm on the ground that it is contrary to the Convention or to an equivalent domestic legal norm.32 It therefore appears that the right to challenge a constitutional norm is prima facie excluded from the Court’s jurisdiction ratione materiae. In the other words, the European Human Rights Convention does not go so far as to provide a remedy before a national authority to question a constitutional norm. A different position would have necessitated comprehensive analysis, silence on this matter is one of the weaknesses of the judgment. To be sure, the Strasbourg Court has not shown to what domestic court the applicant could have, even theoretically, turned with the claim that the premature termination of his position as the Supreme Court President was unfounded. Interestingly, the Court avoided implementing two significant doctrines which should have preceded the conclusion that ‘… the Government have not adduced any arguments to show that the subject matter of the dispute, which related to the premature termination of the applicant’s mandate …, was linked to the exercise of State power in such a way that the exclusion of Article 6 guarantees was objectively justified’ (paragraph 77). The first is the idea that the domestic legislator is better placed to decide matters of reforms affecting the whole society,33 and the second is the balancing exercise of competing rights. The Court signals that unelected judges of an international court have predominance over the nation’s constitutional choices. The Court does not balance the applicant’s – although problematic and theoretical – individual right to challenge in court the early termination of his position with the overwhelming public interest for passing constitutional reform. Overall, paraphrasing the Vilho Eskelinen judgment,34 the Baka judgment in applying the right to court doctrine has led to anomalous results. Another question regards the standard of proof for concluding that the applicant was ‘sanctioned’ for exercising his freedom of expression. The context of the case does not 29 Tom R. Hickman, ‘The “Uncertain Shadow”: Throwing Light on the Right to a Court Under Article 6(1) ECHR, Public Law (2004), pp. 122-145, 123. 30 Art. 13 provides: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ 31 Kamasinski v. Austria, Series A 168, ECtHR judgment of December 19, 1989, Para. 110. 32 See for example: Mitko Georgiev Harakchiev v. Bulgaria and Liudvik Slavov Tolumov v. Bulgaria, Appl. Nos. 15018/11 and 61199/12, ECtHR decision on the admissibility of February 19, 2013, Para. 126. 33 See for example: Deguara Caruana Gatto v. Malta, Appl. No. 14796/11, ECtHR judgment of July 9, 2013, Para. 49. 34 Vilho Eskelinen v. Finland, Para. 51.

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allow reaching a definite conclusion that at the heart of the applicant’s complaint lied a different grievance – the exclusion from being nominated by the President of Hungary and subsequently elected by the Parliament as the President of the Curia. The reason for choosing the right to court complaint must have been the understanding that there is no such ‘civil right’ as the right to be nominated and elected into a position entailing the exercise of state sovereignty. In the author’s view, the Baka case in the freedom of speech aspect is close to the cases which the Court has decided previously on the matter of abuse of power on behalf of the respondent government under Convention Article 18.35 In these cases, the Court was called upon to establish whether there was some ‘hidden agenda’ as opposed to the reasons which the authorities have stated. In the Court’s jurisprudence the abuse of power has been established rarely, since the Court applies a very exacting standard of proof.36 Given that Article 26 of the Hungarian Fundamental Law does not specifically exclude the interpretation that as of January 1, 2012 the new Curia will also have a new President, the burden of proof was upon the applicant to demonstrate some improper motive.37 The Court has contrasted the inconsistent statements of the Hungarian public officials (initially assuring the European authorities that the constitutional reform will not become an instrument to terminate Mr. Baka’s position prematurely and then adopting legal norms effectively prohibiting the applicant to stand for re-appointment) with the univocal criticism of the international community towards the applicant’s professional fate. Like in the Tymoshenko v. Ukraine case where the Court established abuse of power on the basis of the opinions of national and international observers, non-governmental organizations, and media outlines, diplomatic circles and individual public figures,38 the Court in the Baka case judicially endorses the view of the international, especially the EU community. Disagreement with this approach comes close to disagreeing that the opinions of international actors cumulatively are a source of international law, representing generally recognized legal values. The next question then is whether this approach has provided individual justice to Mr. Baka, which is also our third principal analytical issue. The Baka judgment belongs into a specific category within the European Court of Human Rights case-law where the Court has generously applied certain individual measures which appear inconsistent with the Court’s modus operandi. There is a handful of judgments where the Court obligates the respondent government to apply direct individual measure, without explaining the source of authority to divert from the concepts of the declarative nature of the judgments and leaving the discretion about the execution of the judgment

35 Art. 18 provides: ‘The restrictions permitted under Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.’ 36 Tymoshenko v. Ukraine, Appl. No. 49872/11, ECtHR judgment of April 30, 2013, Para. 295. 37 See for context: Khodorkovskiy and Lebedev v. Russia, Appl. Nos. 11082/06 and 13772/05, ECtHR judgment of July 25, 2013, Para. 903. 38 Tymoshenko v. Ukraine, Para. 296.

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Mart Susi to the domestic authorities. For example, in Assanidze v. Georgia,39 a case brought by the former mayor of Batumi the Court introduced for the first time a formulation, that (paragraph 202): ‘by its very nature, the violation found in the instant case does not leave any real choice as to the measures required to remedy it.’40 The Court gave the directive to the respondent government to secure the applicant’s release at the earliest possible date. In the case Aleksenyan v. Russia41 the applicant was the former head of the legal department of oil company Yukos and the Court obligated the Government to release him immediately from detention due to AIDS. In the case Fatullayev v. Azerbaijan,42 brought to the Court by the founder and chief editor of two newspapers with wide circulation, the Court likewise obligated the Government to release the applicant immediately. In 2013 the Court gave a directive for a specific individual measure in the case Oleksandr Volkov v. Ukraine.43 The Court held that Ukraine needs to secure the applicant’s reinstatement in the post of the judge of the Supreme Court at the earliest possible date.44 In the absence of alternative explanations, it is the applicants’ personal status that has led the Court in very rare instances to apply discriminatively a measure meant for the few and ‘chosen’. In the Baka case the individual measure lies in renouncing its previous caselaw which would have led to declaring the application inadmissible. In the author’s view evaluating Hungary’s constitutional legislation with instruments meant for below-constitutional level legal norms was a mistake. This approach is not conceptually defendable and although it has provided individual justice for Mr. Baka, it may not serve the purpose of strengthening human rights protection system in Europe. Perhaps the price of individual justice was unbearably high.

39 40 41 42 43 44

Assanidze v. Georgia, Appl. No. 71503/01, ECtHR judgment (Grand Chamber) April 8, 2004. Ibid., Para. 202. Aleksenyan v. Russia, Appl. No. 46468/06, ECtHR judgment of December 22, 2008. Fatullayev v. Azerbaijan, Appl. No. 40984/07, ECtHR judgment of April 22, 2010. Olekjsandr Volkov v. Ukraine, Appl. No. 21722/11, ECtHR judgment of January 9, 2013. Ibid., Para. 208 and resolutive part Para. 9.

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The Labour Lawyer’s Reading of the Baka Case

Gábor Kártyás*

10.1

Introduction

Protecting human rights in the context of the employment relationship is of utmost importance. The employee works personally, under the employer’s subordination, bringing her whole personality to the workplace and her wage means the basis of her own and her family’s livelihood. Such features put the employee in a vulnerable situation as regards most human rights prescribed under the European Convention on Human Rights (ECHR). Labour law ultimately serves the goal of preserving the fundamental rights of employees. However, the level of protection is somewhat lower as regards state employees. In their case the employer represents the state and the employees take part in exercising powers stemming from state sovereignty. Their loyalty and obedience to the employer’s orders occasionally outweighs their human rights which is most apparent in the case of members of the armed forces and the police. Even international standards are lower as regards state employees, and the ECHR permits certain limitations to a level necessary in a democratic society. A new set of cases before the international human rights forums against Hungary shows that the boundaries of limiting state employees’ basic rights deserves close attention, as the current tendency is to push such barriers even further.1 The Baka case2 is the newest element in this process and gives the author the possibility to examine how the concerns the European Court of Human Rights (Court) expressed as regards the premature termination of the Supreme Court’s president’s mandate effect the status of other state employees working in the civil service.3 Below I assess some rules of Act 199 of 2011 on civil servants (Kttv.) which I find solicitous concerning the right to access to tribunal and * 1

2 3

Adjunct professor, Péter Pázmány Catholic University, Faculty of Law. E-mail: [email protected]. The author is grateful for the support of the Lósy Imre Foundation’s researcher’s grant. See the European Court of Justice cases of mandatory retirement of judges and prosecutors (C-286/12 Commission v. Hungary [2012] ECR I-0000), the premature termination of the data privacy ombudsman’s mandate (C-288/12) and the European Court of Human Rights cases of the 98% tax for state employees (N.K.M. v. Hungary, No. 66529/11) and the dismissal of government officials without notice (K.M.C. v. Hungary, No. 19554/11). Baka v. Hungary, No. 20261/12. I use term ‘civil service’ to refer to civil state employees working in the public administration.

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the freedom of expression. The last part covers another new tendency in Hungary, the limitations on unionisation in the public sphere, which has not been touched upon by any international human rights forum as of yet, but could easily be the next chapter in the set of cases mentioned below. As a preliminary remark, in my opinion the growing limitations on civil servants’ human rights lead astray and definitely do not contribute to reinforcing a professional and effective civil service.4

10.2

Access to Tribunal – Three Problematic Cases

The Baka case was the second in a period of two years where the Court held that Hungary violated a state employee’s right of access to court. In the K.M.C. v. Hungary case the Court found that governmental officials’ dismissal without reasoning amounted to depriving the impugned right of action of all substance. Even if the official could theoretically bring a labour-law claim to court, this did not in itself ensure the effectiveness of the right of access to a court, as that possibility was devoid of any substance and thus of any prospect of success.5 Before the Court delivered its judgement, the Constitutional Court had already annulled these rules based on the violation of five provisions of the Constitution.6 The current rules of the Kttv. were introduced after the Constitutional Court’s decision but before the Court’s judgement. Nevertheless it was clear for the legislator that the dismissal without reasoning could not be upheld, but the Constitutional Court also added that the effective operation of state administration might justify the introduction of more flexible rules on the dismissal of civil servants.7 As a general rule, the Kttv. prescribes that the dismissal shall contain clearly the reasons it was based on and in case of a dispute, the burden of proof to verify the authenticity and substantiality of the reasoning shall lie with the employer.8 In spite of the conclustion on the dismissal without reasoning, I shall point out certain elements of the regulation below which may still raise concerns about the effective right to access to tribunal. Note that Hungarian law does not explicitly exclude any civil servant from access to court, as set out in the Eskelinen test, thus, Article 6 is applicable.9 The first case is the veto against the appointment of civil servants in government offices. Government offices are authorities integrating the various branches of public administration at county level. The head of the government office, the government deputy may raise a 4 5 6 7 8 9

As defined as a goal in the preamble of Kttv. K.M.C. v. Hungary, No. 19554/11, Paras. 33-34. Right to work, right to access to civil office, rule of law, right to access to court, right to human dignity. See Constitutional Court Dec. No. 8/2011 (II. 18). Constitutional Court Dec. No. 8/2011 (II. 18) point IV. 4. Kttv. Art. 63(3). Baka judgement Paras. 67-68.

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veto against the appointment of any new entrants in the office.10 Such veto shall not be put in writing, needs no reasoning and it shall not be delivered to the person affected. Nonetheless, the veto impedes appointment. The question is how the rejected new entrant could claim legal remedy against such a veto. It seems clear that the unreasoned oral veto which must not even be officially communicated to the recipient represents a clear violation of Article 6 ECHR. I see no reason why such discretion is required for the government deputy to control hiring processes in the office. The Kttv. contains a huge variety of institutions to guarantee the professional selection of personnel, from the detailed rules of public tendering to the compulsory probation period. In my view the government deputy’s right to personal veto is unnecessary to guarantee professional hiring, but opens a wide space for abuse and arbitrary decisions on hiring without effective legal remedies. As the Court recalled in the Baka case, to justify the limitations on the access to court, it is not enough for the state to establish that the civil servant in question participates in the exercise of public power, but it needs to show that the subject matter of the dispute at issue is related to the exercise of state power or that it has called into question the special bond of trust and loyalty between the civil servant and the state.11 Clearly, there is nothing in the appointment of a civil servant on the county level public administration which would require the annulment of the right of access to court. To mention one more technical problem: although it is the government deputy who may prevent appointment, he is not considered as the person exercising employer’s rights. At the same time, labour law litigation may only be launched against the employer.12 Thus, there is no legal possibility to file a lawsuit against the deputy before the labour court which makes the right of access to tribunal illusory. The second issue is the reinstatement of civil servants to office after the court held that their employment relationship was unlawfully terminated by the employer. Such a claim can only be raised in limited cases, where the termination seriously violated the law (for example in case of discrimination or when the labour law protection of union officials was not observed). The Kttv. authorizes the court to dismiss the civil servant’s claim for reinstatement upon the request of the employer, if future employment cannot be expected from the employer. In such cases the civil servant is entitled to a flat rate compensation of two to twelve monthly wages, depending on the circumstances of the case.13 The problem is that the law contains an exemplificative list of cases when the court must accept the employer’s request to reject reinstatement. The Kttv. prescribes that future employment is not expectable if, among others, the civil servant’s position was filled or 10 11 12 13

Act 126 of 2010 Art. 15(3). Baka judgement Paras. 68 and 77. Act 3 of 1952 on the civil procedure, Art. 349. Kttv. Art. 193.

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Gábor Kártyás abolished in the meantime or there is a layoff going on.14 In the cases explicitly listed in the Kttv. it is not in the discretion of the court to decide whether future employment is expectable from the employer or not, but must reject reinstatement. It seems obvious that by such broad interpretation of ‘not expectable future employment’, unlawfully dismissed civil servants can be reinstated only if the employer wishes to do so. The Constitutional Court dealt with the employee’s claim for reinstatement in two previous decisions.15 It held that the right to reinstatement is not absolute and there is no constitutional obligation for the legislator to guarantee future employment in the same position regardless of any conditions. However, it is against the free will of the employee if its claim for reinstatement must be rejected upon the request of the employer who acted unlawfully and no specific reasons are required for such request. The Constitutional Court pointed out that the court shall have discretion over whether future employment is expectable from the employer and thus to reinstate the employee or not. In my view the Kttv. leaves so limited room for the courts to decide on the question of reinstatement that it raises serious doubts about the effectiveness of the right of access to court. It is highly possible that unlawfully dismissed civil servants could not be reinstated by the court even if they started the whole litigation for that aim.16 Such limitation on the right to access the court might be considered as restricting the right’s very essence.17 Finally, the Kttv. authorizes the employer to unilaterally modify the job profile or the place of work of the civil servant, if the new job is still suitable for her qualifications and professional experience and the travelling time to work and home does not exceed a certain limit prescribed by the law. Moreover, the employer shall not cause disproportionate harm by the unilateral modification.18 Even if this right is limited by the aforementioned guarantees, it forms a vast intrusion into the contractual bases of the parties’ legal relationship. The civil servants’ employment relationship is based on the appointment and its acceptance by the civil servant.19 The two unilateral acts form a quasi-contract.20 In my view, it would be unimaginable in private sector employment to authorize the employer to unilaterally change the contractual bases of the legal relationship, even in cases when it causes ‘only’ proportionate harm to the employee.21 Moreover, note that the Kttv. permits the temporary employment of the civil servant in a job profile or workplace other than stipulated in the 14 Kttv. Art. 193(2). 15 Constitutional Court Dec. Nos. 4/1998 (III. 1) and 549/B/1999. 16 The right of access to the courts is not absolute but may be subject to limitations that do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. 17 Baka judgement Para. 73. 18 Kttv. Art. 48(3-5). 19 Kttv. Art. 38(1). 20 Cs. Lehoczkyné Kollonay, A magyar munkajog I, Vince Kiadó, 2001, p. 97. 21 Note that in case of executive civil servants even disproportionate harm might be caused. This means that the employer may put the executive to any simple position without reasoning, although the law elsewhere regulates this modification also as a disciplinary action [Kttv. Art. 48(6), 155(2) e)].

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appointment upon the order of the employer.22 Given the possibility of temporary unilateral modification, in my view the effective operation of the administration does not require the unilateral modification of the appointment for an indefinite period. If the civil servant no longer wishes to work under the modified conditions, he may request the employer to dismiss him which the employer cannot refuse.23 The law does not link the unilateral modification to any specific circumstance, thus the employer may resort to it without reasoning. I see serious concerns with respect to the right of access to tribunal as the civil servant can be forced to ask for her dismissal by a unilateral act of the employer which needs no reasoning. It is worth mentioning that the Committee of Ministers’ recommendation on the status of public officials in Europe prescribes that in so far as possible, public officials should not be transferred without their consent unless it is required in the public interest and, in particular, of good public administration. Public officials should have a legal remedy against the possible unlawfulness of such a measure.24

10.3

The Freedom of Expression and ‘Professional Loyalty’

As a general rule, the Kttv. prescribes that the personal rights of parties falling within its scope shall be respected. The personal right of civil servants may be restricted if deemed strictly necessary for reasons directly related to the intended purpose of the civil service and in case it is proportionate to the objective pursued.25 Moreover, the law entitles the civil servant to put in writing his dissenting opinion if he does not agree with the order or decision of his superior. The civil servant shall not be subject to any inconvenience if she exercises this right.26 However, the Kttv. introduced a new obligation of civil servants, the so-called professional loyalty. The law obliges civil servants to fulfil their tasks with professional loyalty towards their superiors, meaning the commitment towards the professional merits determined by the superior, creative cooperation with colleagues and fulfilment of tasks with professional calling, discipline and concentration.27 If the civil servant breaches the obligation of professional loyalty, he must be dismissed on the grounds of ‘loss of trust’.28 Given the subordination between the parties in the employment relationship and the nature of the civil servant’s duties, earlier court practice acknowledged the employer’s

22 Kttv. Arts. 51-52, 54-55. 23 Kttv. Arts. 48(7), 63(2) d). This also means that the civil servant is eligible to severance pay and other benefits as in other cases of dismissal. 24 Recommendation No. R (2000) 6, point 6. 25 Kttv. Art. 11(1). 26 Kttv. Art. 78(4). 27 Kttv. Art. 76(2). 28 Kttv. Arts. 63(2) e), 66(1).

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Gábor Kártyás right to unilaterally terminate the relationship on the grounds of the loss of trust.29 However, the Kttv.’s definition of professional loyalty covers elements related much rather to bad performance than issues concerning the executive’s trust. If a civil servant reflects upon irrelevant facts in the wording of a decision (‘concentration’), cannot work together with colleagues (‘creative cooperation’), or does not respect deadlines (‘fulfilment of tasks with discipline’), he simply could be dismissed on the grounds of inadequate performance rather than loss of trust. Besides, these malpractices could also lead to a disciplinary action.30 Hence the exact content of the dismissal based on the loss of trust cannot be defined as it overlaps with other institutions. From the aspect of the freedom of expression, it should be pointed out that in case of the rather blurry loss of trust the employer has no discretion, but it is mandatory to dismiss the civil servant. This means that if the executive notices that her dependent dissents from the professional merits she determined, she has no other option than to dismiss the civil servant. For instance, an environmental engineer working in the environmental authority expresses her opinion that she is against nuclear energy, while the leaders order the whole office to start a campaign to promote the building of a new nuclear plant. Here, the absurd requirement of the law is to dismiss this civil servant as she does not show the necessary professional loyalty. In my view, the expectation of professional loyalty could easily be read as rule that the civil servant has no right to express her opinion if it contradicts that of her executive, or – more precisely – this would inevitably lead to the termination of her employment. The question is not the civil servant’s eligibility for public service, nor her professional ability to exercise her functions, thus, it relates to the freedom of expression and not to the holding of a public post in the public administration.31 Mandatory dismissal also applies in situations when – as in the Baka case – the views expressed are mere criticisms from a strictly professional perspective, without any gratuitous personal attacks or insults.32 Here, I see such a restriction of civil servants’ freedom of expression that is in no way necessary ‘in a democratic society’.33 On the contrary, the civil servants’ expression of opinions serving the public interest should be protected by all means.34 Obviously, the fear of such a severe sanction leads to a ‘chilling effect’ on the exercise of the freedom of expression in the civil service, which the Court labelled as working to the detriment of society as a whole.35

29 See e.g. the following decisions of the Supreme Court: EBH1999/147, EBH2003/894, EBH2005/1244, EBH2006/1441, BH2004/484, EBH2004/1055, MD II/701. 30 Kttv. Art. 155. 31 Baka judgement Para. 89. 32 Baka judgement Para. 100. 33 ECHR Art. 10(2). 34 T. Jónás, ‘Véleménynyilvánítási szabadság a munkaviszonyban’, III(II) Pécsi Munkajogi Közlemények (2010), p. 44. 35 Baka judgement Para. 101.

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10.4

The Labour Lawyer’s Reading of the Baka Case

The Freedom of Association and the Chamber of Government Officials

In the last part I examine the tendencies of state employees’ unionization as a new sphere where limitations on human rights appeared in Hungary. Article 11 ECHR regulates the freedom of association in a more restrictive way than other international standards as it permits lawful restriction not only regarding members of the armed forces and of the police but also of the administration of the state. By contrast, ILO conventions state that public employees shall have, just as other workers, the civil and political rights which are essential for the normal exercise of the freedom of association, subject only to the obligations arising from their status and the nature of their functions. Restrictions are only acceptable for members of the armed forces and the police.36 The ILO Freedom of Association Committee emphasized that the members of the armed forces who can be excluded from the freedom of association should be defined in a restrictive manner and workers should be considered as civilians in case of doubt.37 Note that the Court also interprets possible restrictions narrowly.38 As of 1 July 2012 the Kttv. established a new institution for employee representation, the Chamber of Government Officials (Magyar Kormánytisztviselői Kar, MKK). All government officials39 become members of MKK automatically, by law, irrespective of the will of the affected officials.40 The law empowers the MKK with certain rights that are traditionally exercised by unions. For instance, it represents the interests of its members, contributes to the legislation process and gives opinion on questions concerning the employment of its members, etc.41 Hence, the MKK is entitled to exercise traditional union rights but it is based on compulsory membership. Moreover, there is no legal requirement for the MKK whether and how to consult its members when it exercises its statutory rights. This situation might be used to weaken trade unions and as a result, to restrain the freedom of association. ILO Convention 135, Article 5 prescribes that where there exist in the same undertaking both trade union representatives and elected representatives, appropriate measures shall be taken, wherever necessary, to ensure that the existence of elected representatives is not

36 ILO Convention 87 Art. 9 1) and Convention 151, Arts. 1(3) and 9. Art. 5 of the European Social Charter also limits the possible restrictions to the police and the armed forces. 37 Freedom of Association. Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO (hereinafter: ‘Digest’). International Labour Office, 2006, Paras. 223, 226. 38 Z. Mataga, The Right to Freedom of Association under The European Convention on the Protection of Human Rights and Fundamental Freedoms, 2006, pp. 22-23. 39 Government officials are civil servants working for the public administration bodies subordinated of the Government. E.g. civil servants working for local governments are not government officials. 40 Kttv. Arts. 29(2), 33(1). 41 Kttv. Art. 29(6).

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used to undermine the position of the trade unions concerned or their representatives. The Freedom of Association Committee also recalled that legislative or other measures have to be taken in order to ensure that organizations that are separate from trade unions do not assume responsibility for trade union activities and to ensure effective protection against all forms of anti-union discrimination.42 The MKK does not collect membership dues,43 its operation is funded by the state budget, i.e. by the employer. The Kttv. explicitly states that the minister or the executive of any state authority may offer financial support to the MKK.44 This raises concerns regarding ILO Convention 151, Article 5(3), stating that acts which are designed to support public employees’ organisations by financial or other means, with the object of placing such organisations under the control of a public authority, shall be deemed to constitute acts of prohibited interference. Considering the above, the MKK – established as an alternative to trade unions – is an unreasonable and unnecessary institution which might harm the freedom of association. Two other similar chambers have been established, one for teachers and one for employees in law enforcement.45 Finally, as of 1 January 2014, the act on the National Tax and Customs Administration prescribes that all personnel needs the prior consent of the employer to become an official of a trade union.46 Such a requirement clearly contradicts ILO Convention 87, Article 3, which states that workers’ organisations shall have the right to elect their representatives in full freedom. ILO Convention 151, Article 5 prescribes that public employees’ organisations shall enjoy complete independence from public authorities and adequate protection against any acts of interference by a public authority in their establishment, functioning or administration.

42 43 44 45 46

Digest Paras. 879, 870. Kttv. Art. 33(10). Kttv. Art. 35(7). Act 43 of 1996 Chapter IV, Act 190 of 2011 Chapter 35/A. Act 122 of 2010, Art. 33/C (1) and (2a).

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Part III Developments in International Law

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The Benefits and Limitations of a Human Rights Approach to Environmental Protection

Dinah Shelton*

11.1

Introduction

National constitutions throughout the world contain enumerated rights and freedoms for individuals residing within the State’s territory or subject to its jurisdiction. In the twentieth century, the international community increasingly recognized that such constitutional guarantees sometimes prove inadequate or even illusory when military coups, armed conflicts, or repressive governments disrupt or deliberately ignore the rule of law and constitutional limits on the exercise of power. International and regional organizations created or reformed after the Second World War thus concluded that human rights must be considered a matter of international concern if individuals and groups are to be ensured their fundamental rights and freedoms. The United Nations Charter contains human rights obligations binding on each member State, but the Charter does not list the guaranteed rights. This lacuna led the UN to begin almost immediately to draft an international bill of rights. The first step was the adoption on December 10, 1948, of the Universal Declaration of Human Rights, a text cited in virtually every subsequent human rights instrument and incorporated into the constitutions of many new states. The Declaration is today considered to define the term human rights as used in the UN Charter and is the standard by which each UN Member State is judged. The Declaration was transformed into treaty law through the adoption in 1966 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR). Subsequent UN standardsetting has sought to protect particularly vulnerable groups (racial minorities, women, children, indigenous peoples, persons with disabilities) and prevent and punish particularly egregious human rights violations (slavery, torture, forced disappearances). The UN considers nine of its global treaties to be ‘core’ agreements. Each UN core treaty establishes *

Manatt/Ahn Professor of International Law, George Washington University Law School; former President of the Inter-American Commission on Human Rights. E-mail: [email protected].

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its own monitoring body of independent experts elected by the participating states for a fixed term of office. The monitoring bodies receive periodic reports from states parties to the treaties and have (usually optional) jurisdiction to receive complaints by a State party or a victim against a State that has accepted the treaty and the complaints procedure. The UN monitors the human rights performance of all its member States through Universal Periodic Review conducted by the UN Human Rights Council. The Council also appoints thematic working groups or rapporteurs to conduct studies or investigate particular human rights issues or problematic countries; and the Council maintains a complaints procedure that allows anyone to denounce a situation of gross and systematic violations of human rights. The studies authorized by the Council include the topic of human rights and the environment, undertaken by an Independent Expert appointed for a three year term in 2012. Regional organizations reinforce the UN human rights program and offer something that does not exist at the global level: courts with jurisdiction to render binding judgments and award redress to victims of violations. In 1950, ten ‘like-minded’ governments adopted the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and through it established the European Court of Human Rights. Today, due to a series of reforms and geographic expansion, the court has mandatory jurisdiction over the forty-seven Member States of the Council of Europe, allowing more than 800 million people the possibility of ‘going to Strasbourg’ after exhausting available local remedies. The Organization of American States (OAS) serves as the body of regional cooperation in the Americas. The OAS adopted the American Declaration of the Rights and Duties of Man on May 2, 1948, simultaneously with concluding the constitutional Charter of the OAS, some six months before the adoption of the UN’s Universal Declaration of Human Rights. In 1959 the OAS General Assembly created the Inter-American Commission on Human Rights (IACHR), a body of seven independent experts who serve one or two fouryear terms. A decade later the OAS Member States adopted the American Convention on Human Rights (ACHR), which expanded the jurisdiction of the IACHR and created an Inter-American Court of Human Rights. Protection of socio-economic rights was added in 1988, with the adoption of the Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), a treaty that expressly recognizes environmental rights. In 1981, the then-Organization of African Unity (OAU) (now the African Union) adopted the African Charter on Human and Peoples’ Rights (AfCHPR), now accepted by all 53 Member States, and therein created the African Commission of Human and Peoples’ Rights. The Charter explicitly mandates the African Commission to ‘draw inspiration from international law on human and peoples’ rights.’1 In 2004, a protocol establishing the 1

African Charter on Human and Peoples’ Rights (Banjul, 27 June 1981) (1982) 21 ILM 58, Art. 60.

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African Court on Human and Peoples’ Rights, designed to ‘supplement’ the work of the Commission, entered into force; its first judges were elected in 2006.2 Other regional and sub-regional intergovernmental organizations around the world have begun to address human rights in recent years. These include initiatives in SouthEast Asia and the Arab-speaking world, as well as sub-regional bodies in Europe, the Americas, and Africa. The opportunities for civil society participation that the regional systems offer provides a bridge between the universality of human rights norms, on the one hand, and the cultural and political particularities of each region and State, on the other.

11.2

The Environment as a Human Rights Issue

Environmental degradation became a matter of national and international concern beginning in the 1960s, some two decades after human rights emerged on the international agenda. Given the timing, there are few explicit references to environmental matters in the earlier-drafted international human rights instruments, which is cause for one of the limitations of to a human rights approach to this issue. The ICESCR contains a right to health in Article 12 that expressly calls on states parties to take steps for ‘the improvement of all aspects of environmental and industrial hygiene.’ The Convention on the Rights of the Child (20 November 1989) refers to aspects of environmental protection in Article 24, which provides that States Parties shall take appropriate measures to combat disease and malnutrition ‘through the provision of adequate nutritious foods and clean drinking water, taking into consideration the dangers and risks of environmental pollution.’ These two provisions are the only references to the environment in global human rights instruments. Despite this lack of specific mention of the environment in human rights treaties, international awareness of the linkages between human rights and environmental protection has expanded considerably since the emergence of environmental protection as a legal issue. The anthropocentric definition of pollution in international and domestic law partly explains the linkage, as many texts provide that only those substances that are harmful to human health or other interests constitute pollution.3

2 3

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (June 1988). Pollution of the marine environment, for example, is ‘the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.’ United Nations Convention on the Law of the Sea (1982), Art. 1(4).

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The links between human rights and environmental protection were acknowledged in the widely-cited Principle 1 of the 1972 Stockholm Declaration.4 Subsequently, in resolution 45/94 the UN General Assembly recalled the language of Stockholm, stating that all individuals are entitled to live in an environment adequate for their health and well-being. The resolution called for enhanced efforts to ensure a better and healthier environment. As this language suggests, many human rights tribunals and experts view environmental protection as a pre-condition to the enjoyment of several internationally-guaranteed human rights, especially the rights to life and health. In this sense, the General Assembly has called the preservation of nature ‘a prerequisite for the normal life of man.’5 The former United Nations Human Rights Commission, in appointing a Special Rapporteur on the adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights,6 consistently recognized that environmental law violations ‘constitute a serious threat to the human rights to life, good health and a sound environment for everyone.’7 Other resolutions of the Commission referred explicitly to the right to a safe and healthy environment.8 In recent years, the Human Rights Council has adopted resolutions on climate change as a human rights issue and the General Assembly has recognized the human right to safe drinking water and sanitation. Another approach to the linkage of these issues considers certain human rights as essential elements to achieving sound environmental protection. This approach is wellillustrated by the Rio Declaration on Environment and Development, adopted at the conclusion of the 1992 Conference of Rio de Janeiro on Environment and Development. Principle 10 formulates a link between human rights and environmental protection largely in procedural terms, declaring in Principle 10 that access to information, public participation and access to effective judicial and administrative proceedings, including redress and remedy, should be guaranteed because ‘environmental issues are best handled with the participation of all concerned citizens, at the relevant level.’ These procedural rights, con-

4

5 6 7 8

At the Stockholm concluding session, the preamble of the final declaration proclaimed that ‘Man is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth […].’ Both aspects of man’s environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights – even the right to life itself. Principle 1 of the Stockholm Declaration established a further connection between human rights and environmental protection, declaring that ‘Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being.’ GA Res. 35/48 of 30 October 1980. Resolution 2001/35, Adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights, E/CN.4/RES/2001/35. Commission on Human Rights, Resolutions 199/23 and 2000/72. In Resolution 2001/65, entitled ‘Promotion of the Right to a Democratic and Equitable International Order, the Commission affirmed that ‘a democratic and equitable international order requires, inter alia, the realization of […] [t]he right to a healthy environment for everyone.’

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tained in all human rights instruments, are thus adopted in environmental texts in order to have better environmental decision-making and enforcement. Still other legal texts proclaim the existence of a right to a safe and healthy environment as a human right. The African Charter on Human and Peoples’ Rights, Article 16, guarantees to every individual the right to enjoy the best attainable state of physical and mental health while Article 24 was the first international treaty to proclaim that ‘All peoples shall have the right to a general satisfactory environment favourable to their development.’ The 1988 Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights,9 in its Article 11, similarly proclaims that ‘Everyone shall have the right to live in a healthy environment and to have access to basic public services’ and that the States Parties shall promote the protection, preservation and improvement of the environment. Also at the regional level, the preambles of European Union legal texts often state their aim as being ‘to protect human health and the environment.’10 On the national level, more than 100 constitutions throughout the world guarantee a right to a clean and healthy environment,11 impose a duty on the state to prevent environmental harm, or mention the protection of the environment or natural resources. Such provisions vary in the chosen description of the environmental quality that is protected. While many of the older provisions refer to a ‘healthy’ or ‘healthful’ environment, more recent formulations add references to ecology and/or biodiversity to the guarantee. The scope and the contents of environmental rights have been the subject of litigation in many states. The Supreme Court of Montana has provided the most detail about the substantive implications of a right to a specified environmental quality, indicating the value of Constitutional rights in preventing harm to the environment. In Montana Environmental Information Center et al v. Department of Environmental Quality12 the plaintiffs contended that the Constitutional guarantees of environmental protections were violated when the legislature amended state law to allow discharges from water well without regard to the degrading effect that the discharges would have on the surrounding environment. The monitoring of well tests was also alleged to be inadequate because it was done without regard to the harm caused by those tests. The Montana Court concluded that because the right to a clean and healthful environment is a fundamental right in the State Constitution,

9

Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (San Salvador, November 17, 1988, OAS T.S. 69. 10 EC Council Directive No. 85/201 on Air Quality Standards for Nitrogen Dioxide, 7 March 1985, L 87 O.J.E.C. (1985); EC Council Directive No. 80/779 on Air Quality Limit Values, 15 July 1980, L 229, O.J.E.C. 30 (1980). 11 Examples include: Angola (‘all citizens shall have the right to live in a healthy and unpolluted environment’ Art. 24-1); Argentina (‘all residents enjoy the right to a healthy, balanced environment which is fit for human development […]’; Art. 41); Azerbaijan (‘everyone has the right to live in a healthy environment’); Brazil (‘everyone has the right to an ecologically balanced environment, which is a public good for the people’s use and is essential for a healthy life’, Art. 225). 12 296 Mont. 207, 988 P.2d 1236 (1999).

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any statute or rule which implicates that right must be strictly scrutinized and can only survive scrutiny if the State establishes a compelling state interest and that its action is closely tailored to effectuate that interest and is the least onerous path that can be taken to achieve the State’s objective. Human health does not need to suffer before the guarantee can be invoked. The delegates [to the Constitutional Convention] did not intend to merely prohibit that degree of environmental degradation which can be conclusively linked to ill health or physical endangerment. Our constitution does not require that dead fish float on the surface of our state’s rivers and streams before its farsighted environmental protections can be invoked.13 Many lawyers concerned either with the environment or with human rights have concluded that this ‘rights-based approach’ to environmental protection offers stronger guarantees than do the legal approaches of environmental regulation, private litigation or marketbased incentives, because human rights are generally seen as maximum claims on society, elevating concern for the environment above a mere policy choice that may be modified or discarded at will. All legal systems establish a hierarchy of norms. Constitutional guarantees usually are at the apex and ‘trump’ any conflicting norm of lower value. Thus, to include respect for the environment as a constitutional right ensures that it will be given precedence over other legal norms that are not constitutionally-based. In addition, the moral weight afforded by the concept of rights as inherent attributes that must be respected in any well-ordered society exercises an important compliance pull. Finally, at the international level, enforcement of human rights law is more developed than are the procedures of international environmental law. The availability of individual complaints procedures has given rise to extensive jurisprudence from which the specific obligations of states to protect and preserve the environment are detailed.

13 The Montana Supreme Court further applied its constitutional provision in the case Cape-France Enterprises v. The Estate of Peed, 305 Mont. 513, 29 P.3d 1011 (2001), in which it held that “‘the protections and mandates of this provision apply to private action – and thus to private parties – as well” as to state action. Thus, “it would be unlawful for Cape-France, a private business entity, to drill a well on its property in the face of substantial evidence that doing so may cause significant degradation of uncontaminated aquifers and pose serious public health risks.”’ The court held that it would be a violation of the state’s obligation under the constitution for it to grant specific performance of a contract for the sale of the land in question. See Chase Naber, Murky Waters: Private Action and the Right to a Clean and Healthful Environment – An examination of Cape-France Enterprises v. Estate of Peed, 64 Mont. L. Rev. 357 (2003); B. Thompson, ‘Constitutionalizing the Environment: The History and Future of Montana’s Environmental Provisions’, 64 Mont.L.Rev. (2003), p. 157.

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The danger of placing confidence in the regulatory process alone is illustrated by Zander v. Sweden,14 where the applicants complained about contamination of their well water by cyanide from a neighboring dump site. The municipality initially furnished temporary water supplies, but later, adhering to the normal regulatory procedures, the town raised the permissible level of cyanide in the city water supply. The permit for the dump was renewed and expanded, while the applicant’s request for safe drinking water was denied.15 The European Court of Human Rights found in favor of the individual who had no redress before domestic courts for the deterioration of his water supply. Human rights, enshrined in international and constitutional law, thus set the limits of majority rule as well as provide protection against dictatorial repression. The scope and contours of substantive as well as procedural rights are sometimes detailed in legislation, but they are also given content through litigation. National courts and international human rights tribunals elaborate on the often generally-stated rights whose implementation they monitor. The European Court of Human Rights, for example, has given indications of the quality of environment required to comply with the Convention’s substantive guarantees,16 especially as contained in Article 8 of the European Convention. Pollution need not reach the point of affecting health, if the enjoyment of home, private and family life are reduced and there is no fair balance struck between the community’s economic well-being and the individuals effective enjoyment of guaranteed rights.17 The European Court often imports environmental norms in its human rights judgments. Taşkin and Others v. Turkey,18 involved challenges to the development and operation of gold mine, which the applicants alleged caused environmental damage to the detriment of people in the region. In reviewing the applicable legal framework, the Court referred to the procedural rights set forth in Rio Principle 10 and the Aarhus Convention. In addition, however, the Court also quoted from a Council of Europe Parliamentary Assembly resolu-

14 Zander v. Sweden, Appl. No. 14282/88, Eur. Ct. Hum. Rts [1993] Ser. A, No. 279B. Concededly, it was the denial of judicial review of this decision that formed the basis of Lander’s successful claim before the European Court. The Court, finding that the applicants had a right to clean water under Swedish law, held that the lack of judicial review violated the European Convention, Art. 6(1) because the applicants were entitled as of right to seek precautionary measures against water pollution. 15 The European Court did not actually have to reach a conclusion on the substance of this decision, because it found that the applicant’s procedural right of access to justice under Art. 6 was violated. The applicants had been unable to obtain judicial review by Swedish courts of the board’s permitting decision. 16 Lopez Ostra v. Spain, Eur. Ct. Hum. Rts [1994] Ser. A, No. 303C. 17 In Powell & Raynor v. United Kingdom, Eur. Ct.Hum.Rts [1990] Ser. A No. 172, the European Court found that aircraft noise from Heathrow Airport constituted a violation of Art. 8, but was justified as ‘necessary in a democratic society’ for the economic well-being of the country and was acceptable under the principle of proportionality because it did not ‘create an unreasonable burden for the person concerned.’ The latter text could be met by the State if the individual had ‘the possibility of moving elsewhere without substantial difficulties and losses.’ 18 Taşkin and Others v. Turkey, Appl. No. 46117/99, 2004 Eur. Ct. Hum.Rts. 621 (10 November).

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Dinah Shelton tion on environment and human rights19 that recommended that Member States ensure appropriate protection of life, health, family and private life, physical integrity and private property, taking particular account of the need for environmental protection, and that Member States recognize a human right to a healthy, viable and decent environment. Given this recommendation and the domestic Constitutional guarantees in Turkey, the Court found a violation despite the absence of any accidents or incidents at the mine, because the mine was deemed to present an unacceptable risk of harm. The case indicates that in some circumstances human rights litigation can prevent future harm and not just redress victims once the harm has occurred. In the case of Tatar v. Romania, brought after a major gold mining accident contaminated the surrounding water, the Court again considered the procedural rights to information, public participation and redress, but it also assessed the government’s substantive obligations pursuant to international environmental standards. The Court relied on UN findings about the causes and consequences of the accident, as well as determinations of the World Health Organization about the health consequences of exposure to sodium cyanide, placing heavy reliance on them in the absence of adequate domestic fact-finding. The Court referred to international standards on best practices for the mining industry and, significantly, quoted extensively from the Stockholm Declaration on the Human Environment, the Rio Declaration on Environment and Development, and the Aarhus Convention. Two of the Court’s conclusions in the Tatar case were particularly important to the development of the law. First, the European Court declared that the ‘precautionary principle’ has become a European legal norm with applicable content, requiring the government to adopt reasonable and adequate measures capable of respecting the rights of individuals in the face of serious risks to their health and well-being, even where scientific certainty is lacking. Secondly, the Court recalled to Romania the obligation under Stockholm Principle 21 and Rio Principle 14 to prevent significant transboundary harm, in noting that both Hungary and Serbia were affected by the mining accident. These international environmental norms, the Court found, should have been applied by the Romanian government. Enforcement of environmental rights involves courts in not only determining the mandated environmental quality, but also in assessing whether or not the government has taken the requisite actions to achieve that quality. Human rights tribunals have made clear that the state may be responsible whether pollution or other environmental harm is directly caused by the State or whether the State’s responsibility arises from its failure to regulate adequately private-sector activities.20 Human rights instruments require States not only

19 Parliamentary Assembly Recommendation 1614 (2003) of 27 June 2003. 20 See: Mareno Gomez v. Spain, No. 4143/02, 16 Nov. 2004, Para. 55; Giacomelli v. Italy, Paras. 78-79; Surugiu v. Romania, No. 48995/99, 20 April 2004.

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to respect the observance of rights and freedoms but also to guarantee their existence and the free exercise of all of them against private actors as well as the State. Any act or omission by a public authority which impairs guaranteed rights may violate a State’s obligations.21 This is particularly important in respect to the environment, where most activities causing harm are undertaken by the private sector. The European Court’s jurisprudence requires at a minimum that the State should have complied with its domestic environmental standards.22 The issue of compliance with domestic law is particularly important when there is a domestic constitutional right to environmental protection. The European Court will review governmental actions in the light of the domestic law.23 Beyond ensuring that any domestic environmental rights are enforced, the European Court scrutinizes the domestic law to assess if the State has ensured a fair balance between the interests of the community and the rights of those affected. The Court accords each state considerable deference in this respect through its ‘margin of appreciation’ doctrine, because it has concluded that national authorities ‘are in principle better placed than an international court to assess the requirements’ in a particular local context to determine the most appropriate environmental policies and individual measures while taking into account the needs of the local community,24 especially in a technical sphere like environmental protection.25 The committee hearing complaints under the European Social Charter also insists on compliance with domesitc and international environmental norms. A complaint lodged April 4, 2005, claimed violations of the Charter’s right to health provisions26 because the State had not adequately prevented negative environmental impacts nor had it developed an appropriate strategy to prevent and respond to the health hazards stemming from lignite mining. The complaint also alleged that there was no legal framework guaranteeing security and safety of persons working in lignite mines. The European Committee of Social Rights concluded that the government had violated the right to health27 after examining the Greek National Action Plan for greenhouse gas emissions, which the Committee found was 21 Velasquez Rodriguez case, 4 Inter-Am. Ct. H.R. (Ser. C) at 155 (Judgment of July 29, 1988) (concerning disappearance of civilians perpetrated by the Honduran army); Godinez Cruz case, 5 Inter-Am. Ct. H.R. (Ser. C) at 152-53 (Judgment of January 20, 1989). 22 See, e.g. Ashworth and Others v. the United Kingdom, Appl. No. 39561/98, 20 January 2004; Moreno Gomes v. Spain, 2004-X Eur. Ct. H.R. 327 (2005). 23 See, e.g., Okyay and Others v. Turkey, Appl. No. 36220/97, 2005 Eur. Ct. H.R. 476, 12 July 2005 at 57, wherein applicants alleged the failure of Turkish authorities to enforce constitutional environmental rights and environmental laws. They explicitly argued that Art. 56 of the Turkish Constitution guaranteed them the right to life in a healthy and balanced environment. 24 Giacomelli, supra note 21, Para. 80. 25 Fadayeva v. Russia, 2005-IV, 49 EHRR 295, Para. 104. 26 Complaint No. 30/2005 Marangopoulos Foundation for Human Rights (MFHR) v. Greece, European Committee on Social Rights (2006). 27 The Committee transmitted its decision on the merits to the Committee of Ministers and to the Parties on 6 December 2006. The Committee of Ministers adopted its resolution on the matter on January 15, 2008.

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inadequate in the light of the State’s obligations under the Kyoto Protocol and the principle requiring use of the ‘best available techniques.’28 While the Committee found that Greek regulations on information and public participation were satisfactory, the evidence showed ‘that in practice the Greek authorities do not apply the relevant legislation satisfactorily’ and very little had been done to organize systematic epidemiological monitoring of those concerned and no morbidity studies have been carried out.

11.3

Litigation Hurdles: Causality, Evidence and Precaution

Assessing risk is an important issue in litigating substantive environmental rights. Some human rights procedures limit standing to ‘victims’ of violations and there must be a sufficient threat for the applicants or petitioners to qualify as victims.29 The precautionary principle has begun to play a role in bringing more risks within the ambit of human rights litigation. The Taşkin case described above was one based on risk, stemming from the use of cyanide in gold extraction. The Court referred to the various reports that had been done on site which highlighted the risks. Domestic judicial findings also demonstrated the threat to the environment and lives of the neighbouring population. The Court found Article 8 to be applicable ‘where the dangerous effects of an activity to which the individuals are likely to be exposed have been determined as part of an environmental impact assessment procedure in such a way as to establish a sufficiently close link with private and family life for purposes of Article 8 of the Convention.’30 The Court held that this broad reading was necessary to ensure the effectiveness of Article 8. The evidentiary basis of the Taşkin decision was domestic court judgments. The Court held that ‘in view of’ the conclusion of the domestic court on the absence of a public interest in allowing the gold mine, it did not need to examine the case from the perspective of the normal wide margin of appreciation afforded governments in environmental matters. The problem of fact-finding and lack of expertise is frequently said to be a hurdle to giving substantive content to environmental rights. This has not proved to be a high hurdle 28 According to the Committee, ‘[t]he Greek National Action Plan for 2005-2007 (NAP1) provides for greenhouse gas emissions for the whole country and all sectors combined to rise by no more than 39.2% until 2010, whereas Greece was committed, in the framework of the Kyoto Protocol, to an increase in these gases of no more than 25% in 2010. When air quality measurements reveal that emission limit values have been exceeded, the penalties imposed are limited and have little dissuasive effect. Moreover, the initiatives taken by DEH (the public power corporation operating the Greek lignite mines) to adapt plant and mining equipment to the ‘best available techniques’ have been slow. 29 See Bordes and Temeharo v. France, Comm. No. 645/1995, CCPR/C/57/D/645/1995, 30 July 1996. The risk of harm from nuclear radiation due to nuclear testing by France in the South Pacific deemed too remote for the victims to qualify as victims. 30 Taşkin, supra note 19 at Para. 113 [emphasis added].

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thus far in human rights litigation, because in most cases brought thus far domestic factfinding has already revealed the risks or the consequent harm. This was the case in Oneryildiz v. Turkey,31 Taşkin and Fadayeva.32 In the last-mentioned case, concerning pollution from a steel factory, a government decree had recited statistics on the increases in respiratory and blood diseases linked to air pollution, as well as the increased number of deaths from cancer.33 The government had also determined by legislation the safe levels of various polluting substances, many of which were exceeded in the security zone where the applicant lived. The mayor of the city said the steel plant was responsible for more than 95% of industrial emissions into the town’s air,34 while a State Report on the Environment indicated that the plant in question was the largest contributor to air pollution of all metallurgical plants in Russia. The two statements came close to eliminating questions about causality.35 In the end both parties agreed that the applicant’s place of residence was affected by industrial pollution caused by the steel plant, but they disagreed over the degree and effects of the pollution. The government claimed that the disturbance caused by the pollution was not so severe as to raise an issue under Article 8. The applicant and the European Court disagreed. The Court elaborated on its test for finding that environmental conditions are sufficiently severe to be encompassed within the guarantees of Article 8: The assessment of that minimum is relative and depends on all the circumstances of the case, such as the intensity and duration of the nuisance, and its physical or mental effects. The general context of the environment should also be taken into account. There would be no arguable claim under Article 8 if the detriment complained of was negligible in comparison to the environmental hazards inherent to life in every modern city.

31 European Court of Human Rights, 2004-XII, 41 EHRR 325. The case concerned a methane explosion at a waste disposal site. The government had been warned for two years before the explosion about the risk posed by the site and the threat this posed to the lives of those living nearby. The government was held responsible for the loss of life and property damage that resulted from the explosion. 32 Fadayeva v. Russia, supra note 26. See also Ledyayeva, Dobrokhotova, Zolotareva and Romashina v. Russia, Nos. 53157/99, 53247/99, 53695/00 and 56850/00, judgment of 26 October 2006, also involving the same steel plant built during the Soviet era. 33 Russia’s Constitution, Art. 42 guarantees as follows: ‘Everyone has the right to a favorable environment, to reliable information about its state, and to compensation for damage caused to his health or property by ecological disease.’ The provision was not invoked in the case. 34 The Court noted that this made the case different from and more easily definable than other air pollution cases where multiple minor sources cumulate to produce the problem. 35 The Court noted that the parties produced official documents containing generalized information on industrial pollution, because basic data on air pollution are not publicly available, Fadayeva, Para. 30.

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Causality was an issue on the applicant’s health claims. Her medical records indicated problems, but did not attribute them to any specific causes. The doctors stated, however, that her problems would be exacerbated by working in conditions of vibration, toxic pollution and an unfavorable climate.36 The applicant also submitted an expert report37 which linked the plant specifically to increased adverse health conditions of persons residing nearby. The Court found that the medical evidence did not establish a causal link between the pollution at her residence and her illnesses, but accepted that the evidence, include submissions by the government, was clear about the unsafe excessive pollution around her home. The Court also made reference to the expert report and the findings of the domestic courts. The Court noted that Russian legislation defined the maximum permissible concentrations as ‘safe concentrations of toxic elements.’ Therefore, exceeding these limits produced a presumption of unsafe conditions potentially harmful to health and well-being of those exposed to it. This presumption, together with the evidence submitted, led the court to conclude that the applicant’s health deteriorated as a result of her prolonged exposure to the industrial emissions from the steel plant. Alternatively, even if that harm could not be quantified, the pollution ‘inevitably made the applicant more vulnerable to various illnesses’ and affected her quality of life at home.38 The analysis raises the question of what evidence is sufficient to raise the presumption the Court creates in the Fadayeva case. It should not be limited to legislative findings, because as Zander v. Sweden indicates, safe levels may be changed to accommodate economic interests without necessarily being based on sound science. The World Health Organization (WHO) and other scientific bodies have determined through epidemiological studies what constitutes safe levels of concentration of toxic, carcinogenic, mutagenic and other hazardous substances.39 Reliable evidence from such studies can and should be introduced to demonstrate presumed harm when such levels are exceeded, even if local legislation permits higher concentrations. In the Greek case on lignite mining,40 the European Social Charter Committee relied on what it called ‘ample and unambiguous scientific evidence’ that lignite-caused air pollution has a harmful effect on human health and life, without specifying the health risks. Despite the beneficial impacts of lignite use in providing energy independence, access to electricity at a reasonable cost and economic growth, the Committee found that the government’s actions violated the State’s national and international obligations to combat 36 Fadayeva v. Russia, supra note 26 at Para. 45. 37 The court made it a point to recite the qualifications of the expert when discussing the report. See id, Para. 46 n. 1. 38 Id., Para. 88. 39 The WHO has developed guidelines for safe and acceptable water quality and quantity. World Health Organization, ‘Guidelines for Drinking Water Quality’ (3rd edn., 2004). Independent surveillance of water quality, quantity, accessibility, affordability and long term availability are part of the WHO framework. 40 Marangopoulos Foundation for Human Rights v. Greece, supra note 27.

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pollution that caused health problems. It pointed to the right to environment in the Greek constitution, as well as national environmental protection legislation and regulations, noting that these were not applied and enforced in an effective manner. In sum, Greece had not stuck a reasonable balance between the interests of persons living in the lignite mining areas and the general interest and there was thus a violation of the right to protection of health under the Charter.

11.4

Limits of the Rights-Based Approach

Although the cases discussed herein reveal that human rights jurisprudence now encompasses risk as an element of harm sufficient to bring cases within the jurisdiction of human rights tribunals, most cases still are brought after environmental damages has already occurred. The requirement in the European Court that applications be brought by ‘victims’ of a violation serves to exclude many cases where prevention of future harm is sought. Some human rights tribunals like the IACHR do have the power of initiative to promote as well as protect human rights, but the courts must respond to the cases brought before them. Moreover, the European Court’s jurisprudence on ‘just satisfaction’ is extremely limited. If the court finds a violation, it often simply issues a declaratory judgment. Although the court may choose in its discretion to go beyond a declaratory judgment, and afford some compensation, costs and fees to a litigant, it does not always do so and never issues order to a government to halt the violation. Thus, Ms. Fadayeva is given the money to move away from the polluting steel factory, but the factory continues to pollute. A second limitation in most States and human rights tribunals is that the environmental injury must harm humans. To make a claim under ECHR Article 8, an individuals’ home life must be directly affected; harm to the surrounding environment, even protected areas, is not sufficient. According to the European Court, Article 8(1) extends only to protection against ‘a harmful effect on a person’s private or family sphere and not simply the general deterioration of the environment.’41 Thus, Article 8 has been useful primarily when the environmental harm consists of pollution. Issues of resource management and nature conservation or biological diversity are more difficult to bring before the Court. A 1974 opinion of the European Commission on Human Rights indicates the present limits of the human rights approach. In rejecting an application alleging a violation of the applicant’s right of privacy and family life insofar as it concerned a dog, the Commission stated: The Commission cannot however accept that the protection afforded by Art. 8 of the Convention extends to relationships of the individual with his entire 41 Kyrtatos v. Greece, Appl. No. 41666/98, 40 EHRR 390 (2005) (finding no violation of Art. 8 due to the destruction of a protected wetland adjacent to the applicant’s property).

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immediate surroundings, in so far as they do not involve human relationships and notwithstanding the desire of the individual to keep such relationships within the private sphere. No doubt the dog has had close ties with man since time immemorial. However, given the above considerations this alone is not sufficient to bring the keeping of a dog into the sphere of the private life of the owner.42 In the application of human rights law, the issue of a right to an environment of a certain quality is complicated by both temporal and geographic elements absent from other human rights protections. While most human rights violations affect only specific and identifiable victims in the present, environmental degradation may cause harm to many currently living, and future generations of humanity as well. A right to environment thus implies significant, constant duties toward persons not yet born, a concept human rights tribunals have difficulty applying. The right to a healthy environment also implies a potentially vast territorial scope of state obligations. Presently, human rights instruments typically require each state to respect and ensure guaranteed rights ‘to all individuals within its territory and subject to its jurisdiction.’ This geographic limitation reflects the reality that a state normally will have the power to protect or the possibility to violate human rights only of those within its territory and jurisdiction. Nature recognizes no political boundaries, however. A state polluting its coastal waters or the atmosphere may cause significant harm to individuals thousands of miles away. States that permit or encourage depletion of the tropical rain forest can contribute to global warming that threatens the entire biosphere. Finally, as noted earlier, most environmental harm is caused by the private sector being inadequately regulated by the government, either because of gaps in the law or, more often, because the law is not enforced. Often, private economic intersts have considerable political power or links to the government. Governments may encourage foreign investment or engage in major development projects that cause serious environmental degradation and human rights violations. The reaction of such governments to decisions of human rights bodies that call for halting, modifying or delaying destructive investment and development projects can be strongly negative and can result in decreased funding, changes to the rules and composition of the tribunals, or at the least may have a chilling effect on decisions and judgments in environmental rights cases.

42 Eur. Comm’n H.R., Case 68/25/74, 5 D. & R. 86.

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11.5

The Benefits and Limitations of a Human Rights Approach to Environmental Protection Conclusions

Despite the limitations indicated, national and international tribunals increasingly are being asked to give effect to the link between environmental protection and internationallyguaranteed human rights. In some instances, the complaints brought have not been based upon a specific right to a safe and environmentally-sound environment, but rather upon rights to life, property, health, information, family and home life. Underlying the complaints, however, are instances of pollution, deforestation, water pollution, and other types of environmental harm. International petition procedures thus allow those harmed to bring international pressure to bear when governments lack the will to prevent or halt pollution that threatens the environment and human well-being. Petitioners have been afforded redress and governments have taken measures to remedy the violation. Petition procedures at the least can help to identify problems and encourage a dialogue to resolve them. In addition, the emphasis given rights of information, participation, and access to justice can encourage an integration of democratic values and promotion of the rule of law in broad-based structures of governance. Even where there is a guaranteed right to environment, it still must be balanced against other rights should there be a conflict. Human rights exist to promote and protect human well-being, to allow the full development of each person and the maximization of the person’s goals and interests, individually and in community with others. This cannot occur without basic healthy surroundings, which the state is to promote and protect. Adjudicating cases under broadly-worded standards is not new for judges nor is it uncommon for them to be faced with deciding highly technical matters. Courts must regularly, and on a case-by-case basis, define what constitutes ‘reasonable,’ ‘fair,’ or ‘equitable’ conduct. With the adoption of constitutional environmental rights provisions and increasing acceptance of the links between environmental degradation and the violation of other human rights, national and international tribunals struggle to give substance to environmental rights without overstepping the judicial function. In general, courts have taken the view that such enactments serve to place environmental protection in a position superior to ordinary legislation. Over time, courts tend to create a balancing test to avoid too readily undoing the deliberative decisions reached by the political branches of government. Human rights law is not about stopping all human activities, but about recognizing that they utilize scarce resources and produce emissions and waste that inevitably have individualized and cumulative environmental impacts. These impacts have to be considered, measured and monitored, with the result that some activities will be limited or prohibited. Environmental science helps determine the causal links between the activities and the impacts, giving courts a set of data on which to base decisions about whether or not a proper balance of interests has been obtained, one which ensures an equitable outcome

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and minimizes the risk of harm to the environment and human rights. The substance of environmental rights involves evaluating ecological systems, determining the impacts that can be tolerated and what is needed to maintain and protect the natural base on which life depends. Environmental quality standards, precaution, and principles of sustainability can establish the limits of environmental decision-making and continue to give specific content to environmental rights in law. Both national and international courts have used environmental law and science to give content to the level of environmental protection required by human rights law. This approach can involve reference to World Health Organization standards on acceptable emissions levels, incorporation of the precautionary principle to judge the adequacy of measures taken by a government, or reference to environmental treaties and declarations. The breadth of the search for standards depends in part on whether or not there is a textual guarantee of environmental quality and if there is, on the descriptions of that quality. There remain many questions to be addressed, including issues about the scope of the guaranteed rights, the scope of state responsibility, accountability of non-state actors, and procedural mechanisms to give effect to or monitor compliance with environmental rights. These issues will undoubtedly be raised in future litigation and debated in academic journals. In both contexts, contributions from scientists, especially the medical profession, and other relevant disciplines will be necessary to ensure that the law and policy reflects knowledge about the environment and the consequences of pollution.

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Law in Mind: Towards an Explanatory Framework for Customary International Law

László Blutman*

12.1

Introduction

The doctrine on customary international law is seriously paralyzed by conceptual problems. What exactly is opinio juris? What is the nature of ‘general (state) practice’? What to do with the obscure text of Article 38(1)(b) in the Statute of the International Court of Justice? How to solve the so-called chronological paradox (Section 5)?1 Traditional dualist theories struggling with grave conceptual difficulties have so far failed to provide a consistent and coherent account for customary international law.2 We need fresh perspectives. I think that, instead of expending energy on weary dualist explanations, we should focus on a non-objectivist (possibly subjectivist) monist theory – the only one that can offer such perspectives. In what follows I outline the foundations of such a theory. However, a common methodological mistake should be avoided from the outset. A general discussion on customary international law may be approached from three primary perspectives characterized by three questions: (i) What is a customary norm? (ii) How are customary norms formed? (iii) And how are customary norms identified or how do they show themselves? Confounding these three perspectives causes troubles and complications in understanding how customary international law works. It should be borne in mind that customary rules are, first and foremost, (legal) rules. Therefore, a proper starting point appears to be to seek answers to the two fundamental questions of what a customary norm is and what it means for a customary norm to exist. The structure of every theory of customary international law greatly depends on the answers one gives to these * 1 2

Professor of International and European Law, University of Szeged. E-mail: [email protected]. I thank Imola Schiffner and Anikó Szalai for their helpful comments on an earlier version of this article. For a comprehensive list of problems, see B.D. Lepard, Customary International Law: A New Theory with Practical Applications, CUP, Cambridge 2010, pp. 30-43, under the label ‘practical enigmas’. In contemporary international law, almost all theorists share the dualist (two-component or bipartite) conception according to which the nature of customary international law depends on two irreducible components (elements), one objective or material (general practice) and one subjective or psychological (opinio juris or consent/acceptance); while monist theories identify only one such (subjective or objective) factor (e.g. a subjectivist-monist view excludes state practice as an element of customary rule).

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two underlying questions. However, most theorists keep these questions in the background, focusing rather on specific problems of customary norms. In the absence of an account or, at least, a hypothesis on the nature of legal norms or legal normativity of which customary norms are part, explanations will lose their conceptual framework and coherence. Thus, a proper account of customary international law should start with a theory, proposition or hypothesis about what a (customary) norm is. The claim that only a nonobjectivist, monist theory is able to explain customary international law sufficiently makes it necessary to choose a default state of mind by which customary norms can be identified. I shall assume that a form of belief is the state of mind by which a customary norm can be properly described.3 I shall put this forward as a hypothesis or assumption constituting the cornerstone of an instrumental, explanatory framework for interpreting and analysing some of the problems of customary norms. This simplification is necessary, because such an analysis has wide horizon. It has to start from the pure nature of the customary rule itself and should reach the level where meaningful explanations can be proposed to such questions as the chronological paradox, or the nature of general practice, etc.4 This beliefbased approach should be valued by its ability to explain difficulties surrounding CIL, and not by its own terms and ontological values. With regard to the foregoing comments and propositions, this article will address a basic assumption and four general claims. I shall assume that customary norms, like other legal rules, are beliefs (specifically, collective beliefs). Then, I shall ground four general claims on this assumption. They are as follows. (i) Customary norms exist by justified attribution, that is, by virtue of the fact that they, as collective beliefs, are justifiably attributed to the international community. (ii) The formation of customary norms, like the formation of beliefs in general, is an opaque, extra-legal process which resists any plausible description. (iii) Article 38(1)(b) of the Statute of the International Court of Justice (the Court) is an evidentiary rule, which neither defines customary international law, nor determines its elements or formation; it provides for general criteria by which one can identify or justify customary norms in the justificatory process. (iv) The formation or determination of particular customary norms is surrounded by a serious epistemic

3

4

This hypothesis suggests a kind of subjectivist-monist stance. Historically, the most famous subjectivistmonist theory of customary law may be attributed to the German Romantic school of jurisprudence (Gluck, Savigny, and Puchta). It was especially Puchta who consistently excluded usage from the elements of customary law and located it exclusively in the people’s spirit or conviction, C. Rousseau, Droit international public, Tome I, Sirey, Paris 1970, p. 324; P. Guggenheim, Traité de Droit international public avec mention de la pratique internationale et suisse, Georg I. Tome and Geneve Cie, 1967, pp. 102-103. In Section 2, it will turn out that, as my approach is based on a specific form of beliefs, namely collective normative beliefs, the ‘subjectivist’ label is not adequate. Collective beliefs are not psychological phenomena, but primarily social in nature; such an approach therefore suggests intersubjectivism, that is an intersubjectivist-monist position. This simplification, I think, relieves me from providing a wider introduction and helps to maintain the balance between the groundwork and its application.

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deficit, which is overcome in practice by a specific technique, also used by the Court, which I call the summative approach. At the outset, some important clarifications have to be made about the basic assumption, i.e. that customary international norms exist as collective beliefs.

12.2

Customary Norms as Collective Beliefs: Clarifications

The proposition that customary international law exists in the form of collective beliefs is only assumed. I have no intention here of arguing for this proposition in detail because that would drive us into the middle of complex philosophical controversies. Instead, I shall treat this as postulated scheme for analysing and explaining some of the theoretical and practical difficulties surrounding customary international law. However, this assumption needs some clarifications, which will be made in this Section.

12.2.1

Introducing Belief as Core Concept

In a non-objectivist (or narrowly, subjectivist) approach, one needs to choose a default state of mind in which customary international law appears. I shall argue that belief is the state of mind by which a customary norm can be properly described as a social phenomenon.5 For the view that a customary norm should be taken as being a form of belief,6 and not other forms of mental states, I offer the following five preliminary arguments. (1) First, an adequate non-objectivist, monist approach requires as a reference point a state of mind that must possess some necessary features to be able to play the role of the bearer of norms. (i) This mental state should be about something; that is, it should have some mental content (propositional content), which will encompass a proposition (P), to which the subject has a certain attitude. (ii) This default state of mind (attitude) should be cognitive in nature and directly related to the existence of the proposition. (iii) It should imply a certain level of commitment to the existence of the proposition; that is, it is insufficient for the subject only to surmise or conjecture that P. (iv) It should have endurance

5

6

For the purposes of this approach, I shall take belief as a cognitive attitude that expresses a certain level of confidence in the truth of some content that encompasses a (legal) rule. Recently, two vigorous, subjectivistmonist theories have emerged that treat beliefs as exclusive bearers of customary norms (Lepard and Guzman), see Lepard, 2010 and A.T. Guzman, ‘Saving Customary International Law’, 27 Michigan Journal of International Law (2005), p. 115. In spite of the common underlying principle, my account differs substantially from theirs. What should be stressed is the need for a clear formulation of the thesis. It is not that ‘CIL is formed by state beliefs’, Guzman, 2005, p. 157, or that belief is ‘at the origin of the emergence of such a [customary] norm’, B. Stern, ‘Custom at the Heart of International Law’, 11 Duke Journal of Comparative and International Law (2001), p. 97. A customary norm itself is a (collective) belief with particular normative content.

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because customary rules exist continuously over a long period of time. (v) The default mental state should have not only active, but also sufficiently passive phases. To suppose a permanent active mental state for the perpetuation of a norm would be wildly unrealistic. Belief as cognitive attitude meets these five requirements.7 (2) Second, in sociology and social psychology, the notion of ‘consensus’ is often used to denote (mutual or shared) beliefs analysed within the framework of a group or community.8 In view of the classical conception of customary law (tacitus consensus populi),9 consensus may signify the prevailing ‘collective belief’ in a group, community, or society. Consequently, customary law would exist in the form of (collective) belief within the relevant community. (3) Third, in the Nicaragua judgment the Court speaks about ‘the existence of the rule in the opinio juris of States.’10 In various theories of customary international law, opinio juris has been identified as belief by many theorists, and even by the North Sea Continental Shelf decision.11 This enables us to make use of the habitual notion of opinio juris in an explanatory, monist model.12 Here, opinio juris would not be only one constituent element

7

Other prototypical types of cognitive attitudes like knowing, or even being convinced, would imply too high an epistemic demand. A norm may serve as a reason to act or to refrain from acting even in the case of weaker epistemic commitment. This is not to say that other belief-like cognitive attitudes of higher epistemic commitment such as being convinced of or knowing something could not be the bearers of norms. Belief is only the default attitude that reflects the minimum and necessary level of epistemic commitment which makes it possible for a norm to appear as mental phenomenon. In this context, conviction or knowledge are seen as qualified forms of belief: knowledge as true and justified belief; conviction as a belief well-supported by evidence and characterized by high epistemic commitment. 8 E.g. K. Bach, ‘Analytic Social Philosophy – Basic Concepts’, 5 Journal for the Theory of Social Behaviour (1975), pp. 190-195 and R. Tuomela, The Philosophy of Social Practices, CUP, Cambridge, 2004, p. 34. 9 ‘Tacitus consensus populi’ is Ulpian’s expression (Ulpiani, Fragm. § 4) referring to mores. (‘Mores sunt tacitus consensus populi longa consuetudine inveteratus.’) For its application to law, see e.g. Salvius Iulianus (Digest I, 3, 32, 1) or more famously Hermogenianus (Digest I, 3, 35). 10 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, 1986 ICJ Rep. 14, at pp. 97-98. 11 North Sea Continental Shelf Cases (Federal Republic of Germany/Netherlands and Denmark), Judgment of 20 February 1969, 1969 ICJ Rep. 3, at p. 44, Para. 77; Statement of Principles Applicable to the Formation of General Customary International Law. Committee on Formation of Customary (General) International Law, Final Report. Sixty-Ninth Conference (London, 2000); (available at www.ila-hq.org/en/committees/index.cfm/ cid/30, accessed 11 September 2012; hereinafter ‘ILA Report’), p. 32; M. Mendelson, ‘The Formation of Customary International Law’, 272 Recueil des Cours (RdC) (1998), p. 246; A.A. Cancado Trindade, ‘International Law for Humankind: Towards a New Jus Gentium’, 316 RdC (2005), p. 151. 12 Placing opinio juris as belief in the centre of the concept of customary international law, Guzman developed an elegant form of rational choice theory based on reputational sanctions. For such sanctions, what matters is the states’ perspectives or expectations towards another state violating or challenging a rule, which is believed to exist by other states reacting to the violator’s behaviour, Guzman, 2005, pp. 115-176. Though beliefs relating to legal rules naturally stand in the centre of his conception, this important aspect of the theory is somewhat undeveloped.

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of customary law; customary law would rather exist in the form of opinio juris (as belief, or possibly as a collective belief).13 (4) Fourth, there are theories that connect norms to beliefs or some form of beliefs. In terms of beliefs do these theories explain either social norms in general (e.g. Elster, Bicchieri)14 or legal norms (e.g. Pattaro)15 or specifically customary international rules (e.g. Lepard, Guzman).16 (5) Fifth, belief is a central attitude which refers to a person’s typical and common cognitive relation to the world. A person holds countless beliefs about the world (about objects, states of affairs, etc.) supported by more or less evidence, but without knowing definitely that their propositional contents are true or not. Therefore, belief is in the centre of research in the philosophy of mind and cognitive psychology.

12.2.2

Collective versus Individual Beliefs

Though the arguments in the previous subsection concern beliefs in general, according to my assumption customary norms exist in the form of collective normative beliefs, and not as simple (ie. individual and factual) beliefs. Individual factual beliefs are psychological facts (and natural facts), while collective beliefs are primarily social facts, though they are rooted in the particular, individual beliefs of the members of a group or community.17 Such approaches that ground norms in beliefs as psychological facts (i.e. pure subjectivist theories), have relatively weak explanatory power in the field of law as law is product of social interactions. It is highly doubtful that legal norms could be meaningfully reduced to individual beliefs. At this level of investigation, reductionism and general psychologism should be avoided.18 Though the issue of how particular beliefs combine into collective belief will be dealt with in Section 3, it is clear that collective beliefs (and legal norms) as social facts are rela13 For this subjectivist-monist view, see Lepard’s excellent work, Lepard, 2010, especially pp. 8 and 97-98. However, for Lepard, opinio juris is not a belief in the existence of a customary rule, but a belief in the desirability of a customary rule. This position is vulnerable to some strong objections because states can hardly create customary rules by wishing them into existence, see Guzman, 2005, p. 140. For other doubts concerning such desire-based beliefs, see A. Kernohan, ‘Desiring What Is Desirable’, 41 The Journal of Value Inquiry (2007), pp. 281-282 and S. Guttenplan (Ed.), A Companion to the Philosophy of Mind, Blackwell, Oxford, 1996, pp. 244-246. 14 J. Elster, The Cement of Society: A Survey of Social Order, CUP, Cambridge, 1995, especially pp. 97-107, C. Bicchieri, The Grammar of Society: The Nature and Dynamics of Social Norms, CUP, Cambridge, 2006, especially pp. 3 and 8-28. 15 E. Pattaro, The Law and the Right, Springer, Dordrecht, 2005, especially pp. 97-114. 16 Guzman, 2005 and Lepard, 2010. 17 G. Sartor, Legal Reasoning, Springer, Dordrecht, 2005, p. 293. 18 Some of the beliefs carrying norms are normative in nature. I do not deal here with the difficult question of how a particular belief can have normative (legal) content to become normative belief. I simply take it for granted that there are beliefs, which have normative content, see e.g. Sartor, 2005, p. 292.

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tively independent of an individual mind, but they cannot be abstracted from human mind in general. The thesis that norms are collective (normative) beliefs expresses that they are neither subjective nor objective. An approach, which ground norms in collective beliefs as social facts, is not subjectivist in traditional sense, but intersubjectivist.19 Nonetheless, it must be remembered that a collective belief, in some ways, is finally rooted in individual beliefs and shares some of their characteristics. I am of the opinion that such a monist, belief-based, intersubjective theory of customary law is best suited to describing how customary rules (and other legal rules) work within domestic law,20 where they can easily be traced back to attitudes of natural persons or their groups. However, in international law, the principal actors in law-making are abstract entities, to which beliefs can only be attributed in a metaphorical sense. No approach, other than this metaphorical methodology, seems to be applicable sensibly. In an ontological sense, a state’s position relative to an international issue governed by customary rules ultimately depends on complex institutional processes specific to a state and, within these processes, on the beliefs of natural persons representing the state, making decisions in forming this position, and applying this position in practice. However, an investigation of this interesting aspect would be a distraction from the essential question of how customary international law functions at the level of the international community.21 The metaphorical approach shortcuts problems in the formation of states’ opinion and practice by ascribing beliefs to the states themselves.22

12.2.3

The Endurance Problem, or Where Does a Customary Rule Go if Everybody Is Asleep?

If belief is the default state of mind in which a customary norm exists, the problem of endurance emerges. (Dualist theories that treat opinio juris as belief also confront this dif19 This might as well be considered a subjectivist position, if we take the intersubjectivist strand as a subclass of subjectivism, which subsumption, however, might be doubtful. Therefore, I shall only apply the ‘intersubjective’ adjective to my approach. 20 The classic conception of customary law (tacitus consensus populi) can be considered as being subjectivistmonist, because usus (usage) was not strictly required for the pure existence of customary norms. Usus only proved their existence. This interpretation is confirmed by, for example, the medieval Hungarian conception of customary law: ‘non tamen actus, sed tacitus consensus populi inducit consuetudinem’ [not action but the tacit agreement of the people gives rise to custom], Tripartitum (1517), Prologus, Titulus 10, § 7 reprinted in Corpus Juris Hungarici Franklin, Budapest, 1897, p. 36. This reference does not mean that I would accept or follow the classic ‘tacit agreement’ theory of customary international law, Rousseau, 1970, pp. 311-312, Guggenheim 1967, pp. 94-95, M. Seara Vazquez, Derecho Internacional Público, Porrúa, México, 1979, p. 72. I am merely emphasizing its intersubjective nature and the particular evidentiary role that usage plays. 21 D. Lefkowitz, ‘(Dis)solving the Chronological Paradox in Customary International Law: A Hartian Approach’, 21 Canadian Journal of Law and Jurisprudence, 2008, p. 130. 22 If states can have will, intent, or opinio juris, they can also hold beliefs metaphorically. Moreover, metaphors have unequalled value in understanding and describing complex phenomena.

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ficulty). In ordinary usage, customary rules are assumed to have continuous existence after having come into being. How can a belief with propositional content like ‘torture is prohibited’ endure if international actors do not always reflect on the idea that torture is prohibited? What keeps a customary norm as an intersubjective phenomenon alive during those periods of time when no one gives it a thought? (Where does a customary rule upheld by beliefs go if everybody is asleep?) To answer these questions, we have to descend ad interim from the level of state beliefs conceived metaphorically to the level of natural persons’ beliefs. As I noted above, belief as default attitude meets the endurance requirement because beliefs do not only take an active form when they actually occur (temporarily moving to the forefront of conscious, mental events), but also a passive or dispositional form. The occurrence of a belief indicates that relevant mental events are actually taking place in the mind. Occurrent beliefs happen to the subject who is experiencing and/or undergoing and/or doing something relative to its propositional content. An occurrent belief that P which is limited in temporal terms may have external manifestations: e.g. the subject’s stating or declaring verbally that P, reasoning in a legal document on the premise that P, acting or abstaining from acting for the reason that P, etc.23 Beliefs do not cease when the subject ceases to entertain the idea which constitutes the content of the proposition. As Hacker puts it: ‘Indeed, one may believe that P for many years, without the thought that P even crossing one’s mind.’24 Thus, one can hold beliefs dispositionally, but dispositional beliefs are not occurrences. In this context, disposition is generally meant as an inclination or tendency to act, react, or undergo something in a particular way on particular occasions. To hold a dispositional, non-occurrent belief that P, to put it simply, is a tendency or proneness to hold this belief that P occurring in response to particular circumstances and possibly, but not necessarily, accompanied by external manifestations.25 If one holds a dispositional belief that torture is prohibited, one will also have it continuously, even in one’s sleep, embedded in a general dispositional profile of the mind with other connecting beliefs, emotions, mental representations, etc. On particular occasions, certain facts, situations, impacts, or other circumstances may call forth or trigger the belief that torture is prohibited and make it occur.26

23 R. Audi, ‘Perception and Consciousness’, in I. Niiniluoto et al. (Eds.), Handbook of Epistemology, Springer, Dordrecht, 2004, p. 88. 24 P.M.S. Hacker, ‘Of the Ontology of Belief’, in M. Siebel and M. Textor (Eds.), Semantik und Ontologie, Ontos Verlag, Frankfurt, 2004, p. 194. 25 For this argument, see Hacker, 2004, p. 218, or P.M.S. Hacker, ‘Passing by the Naturalistic Turn: On Quine’s Cul-de-Sac’, 81 Philosophy (2006), p. 248; see also Audi, 2004, p. 88. 26 J. Vonk and T.K. Shackelford (Eds.), The Oxford Handbook of Comparative Evolutionary Psychology, OUP, Oxford, 2012, pp. 50-51; Audi, 2004, p. 88; E. Schwitzgebel, ‘In-Between Believing’, 51 Philosophical Quarterly (2001), pp. 76-82.

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Although a state only holds a belief metaphorically, these insights may be utilized in our investigations. In the context of the metaphor of ‘state beliefs’, they may explain the stability and endurance of this metaphorical belief and the state’s disposition to act or react in a particular way under certain circumstances.27

12.2.4

Beliefs at Different Levels

The description of belief I have provided above concerns first-order beliefs. First-order beliefs must be distinguished from second- and third-order beliefs. This well-known and common distinction is necessary to elucidate the question of how customary international law can exist in the form of opinio juris. First-order belief expresses a certain confidence that something is legally prohibited, prescribed, or permitted in the relevant community (internal epistemic commitment to the existence of a norm). Naturally, first-order beliefs do not stand alone and in isolation. International relations are interactive situations where the states’ and other agents’ decisions and acts are influenced or even determined by what they expect from other states and actors. It is important what an actor believes about another actor’s beliefs, intentions, plans, strategies, etc. Second-order beliefs are thus essential to describing international interactions. We are interested here in those second-order beliefs which are about others’ firstorder beliefs relative to the existence of an international legal rule.28 Second-order beliefs are directed to others’ first-order beliefs with the normative content that encompasses the legal rule at issue, and not directly to the normative content itself. For an actor as subject (S), second-order beliefs convey others’ epistemic commitment to the existence of the legal rule (external epistemic commitment, for short). It only implies external commitment because if S1 believes that S2 believes that torture is prohibited, it does not mean that S1 itself believes that torture is prohibited – although S2’s belief may be a reason for S1 to believe that torture is prohibited. Therefore, it must be stressed that higher-order beliefs themselves are not normative beliefs. Their propositional content simply concerns the existence of other actors’ or agents’ beliefs, convictions, etc. Furthermore, second-order beliefs relating to others’ first-order beliefs about an international norm can also be the object of other beliefs (third-order beliefs). Although third-order beliefs as beliefs about other actors’ second-order beliefs are difficult to discern and identify in practice, they are still important in conveying others’ expectations toward an actor regarding the existence of the legal rule. With third-order beliefs, one can grasp 27 Accordingly, opinio juris as belief cannot simply be ‘consciousness of a legal duty’ (that is, occurrent belief), e.g. M. Sorensen (Ed.), Manual of Public International Law, MacMillan, New York, 1968, p. 134. 28 In criticizing subjectivist approaches and quoting Virally, Mendelson is right that we never know what states believe, Mendelson 1998, p. 269. However, we may have sound beliefs about what others believe, and these second-order beliefs have great significance in international practice.

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and depict mutuality and similarity of attitudes from the perspective of one actor and one particular belief. In sum, internal epistemic commitment, the detection of others’ commitments and the mutuality of these commitments are incarnated in first-order and higher orders of beliefs from the perspective of one actor and one particular belief, and all these beliefs may play a part in the formation and maintenance of a customary rule.29

12.2.5

What Counts? False Beliefs and Higher-Order Beliefs

If we conceive of customary international law as a set of norms existing in the form of a web of beliefs within the international community, it is evident that first-order beliefs must count in this web of beliefs. My additional claim is that it is not only first-order beliefs, but also higher-order beliefs and false beliefs that will contribute to the existence of customary norms. The concept of belief per definitionem reflects epistemic uncertainty, and beliefs can be and often are false. In the case of higher-order beliefs, this uncertainty may be greater because they concern another actor’s or a community’s attitude (belief) and the justification of such a belief is more difficult than that of a proposition rooted directly in the objective reality (e.g. ‘all the ravens are black’). For my claim that false beliefs may also contribute to the formation and maintenance of a customary rule, I offer three arguments. (i) Even false beliefs can generate true beliefs of a higher order. Though S2’s belief that torture is prohibited may be false, S1’s belief that S2 believes that torture is prohibited can be true. (ii) Even false beliefs can provide apparent reasons to act for the holder of the belief, and reasons to believe or act for another member of the community, and, similarly, false beliefs, may confirm similar first-order beliefs held by other members of the community. (iii) Even false beliefs may change into true beliefs if their normative content gradually becomes a proposition commonly held by other actors. A normative belief may be a self-fulfilling belief as its truth value depends on what other subjects think (know, believe, or opine) with regard to the matter its content implies. False beliefs may create the basis for their own justification by generating beliefs with similar content. A false belief that torture is prohibited in a community may turn into a true belief after a certain period of time if a sufficiently large number, or possibly all, of the community’s members believe that torture is prohibited. As to higher-order beliefs, they also contribute to the formation and maintenance of the web of beliefs in which a customary rule (CR) may exist.30 Here, S1 is not supposed to 29 The acting state’s belief also matters, but for a contrary view, see Guzman, 2005, p. 146. 30 It is even said that group beliefs (like customary international law) may be exclusively made up of higherorder beliefs in the following way: S1 believes that the community believes that CR if he believes that the majority of the community members believes that the community believes that CR. As the definition does not refer to first-order beliefs, individual first-order beliefs that CR might as well as be false beliefs. A. Orléan,

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believe that CR, but believes that S2 believes that CR or believes that S3 or the international community believes that CR. The detection of others’ commitment to a customary rule may justify an attitude on the part of S1 which expresses lesser epistemic commitment than does a belief (e.g. S1 surmises or conjectures that CR); or believing that S2 believes that CR may serve S1 in international cooperation as a reason to act in accordance with the content of the rule believed by S2 even if S1 himself does not believe that CR. In turn, S1’s surmise (possibly appearing in S1’s statements) or behaviour may be used as a justification (although, in itself, a relatively weak and partial one) for others to believe that CR.

12.3

12.3.1

Perspective of the International Community: Customary International Law as a Set of Collective Beliefs

Collective Belief as Combination of Individual Beliefs

The international community as an abstract entity is supposed to be able to hold beliefs concerning customary rules.31 That raises the fundamental question of how a collective belief can be justifiably attributed to the community.32 The justification of such belief attribution has something to do with individual beliefs. Though collective belief seems to be clearly parasitic on the concept of interaction between the individual beliefs held by the members of the community, it is not clear in what way it is. There are some theories that attempt to explain the relationship between individual beliefs and collective (group) beliefs.33 The problem which we confront is that none of ‘What Is Collective Belief?’, in P. Bourgine and J-P. Nadal (Eds.), Cognitive Economics: An Interdisciplinary Approach, Springer, Dordrecht, 2004, p. 200. 31 E.g. Judge Nyholm’s dissenting opinion in the Lotus judgment (‘la conscience juridique collective’), SS Lotus case (France v. Turkey), PCIJ (Ser. A) No. 10, 3, at 60; see also S. Vazquez, 1979, pp. 70 and 72; Cancado Trindade, 2005, p. 175. 32 Many expressions with various definitions are on the market: shared belief, mutual belief, collective belief, common belief, group belief, etc., Tuomela, 2004, pp. 33-35. I will spare the reader the sophisticated and controversial distinctions and use the term collective belief, or more specifically, the international community’s belief. 33 At the one end of the scale are those theories which link group belief to the aggregate of similar individual beliefs: e.g. the unanimity view (the group believes that P if and only if all of the group members believe that P); the majoritarian view (the group believes that P if and only if the majority or most of the group members believe that P); representationist view (the group believes that P if and only if a number of group members adequately representing the group believe that P). At the other end, some approaches reject that group belief is only a combination of the group members’ beliefs and could be reduced to individual beliefs: e.g. Gilbert’s influential acceptance-based theory (a group belief is a jointly accepted view of the group and independent of the beliefs the group members hold), M. Gilbert, On Social Facts, Princeton University Press, Princeton, 1989, pp. 306-309. For an overview of these theories, see R. Hakli, ‘Group Beliefs and the Distinction between Belief and Acceptance’, 7 Cognitive Systems Research (2006), pp. 286-287. Similar problems arise in connection

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these approaches is suitable to adequately describe and explain international practice in relation to customary international law. This is due to the fact that the practice of the states and ICJ does not display a definite pattern in the matter of how different, individual manifestations of states’ beliefs (state acts, abstentions, and statements) should be evaluated to adequately prove a community belief. The generality condition of the practice in Article 38(1)(b) of the Statute may suggest a majoritarian view,34 the doctrine of specifically affected states refers to a version of a representationist view,35 the Court’s investigating the acceptance of the custom at issue by the states’ parties to the case may indicate the unanimity view or a sort of ‘consensual theory’,36 and the ICJ’s reference to the states’ joint action (e.g. a UN resolution) as a deciding factor in justifying community belief without exploring and assessing the manifestations of individual state beliefs suggests a non-reductionist theory of collective beliefs (that is, the collective belief cannot be reduced to a certain combination of individual state beliefs).37 Thus, I must suppose that no plausible, abstract formula can be discerned by which we could define a general standard for how individual beliefs relate to collective beliefs in international practice with respect to customary norms.

12.3.2

Collective Beliefs and Customary Norms: ‘Existence’ by Justified Attribution

Although an established and accepted method of how to derive collective belief from individual beliefs would have provided a solid theoretical background for evaluating the characteristics of the process in which collective beliefs are attributed to the international community, without such background, what remains is to identify these general characteristics, which are as follows. (i) Collective beliefs (and customary norms) are mental constructs; they do not exist in the same sense as parts of the objective world exist (such as a table or an individual belief). Collective beliefs are only attributed to a group or community, and this attribution must have grounds – and that requires justification. Collective beliefs (customary norms) ‘exist’ by justified attribution. It is therefore more precise to speak about belief attribution than to simply refer to the existence of a collective belief.38 (ii) An attribution of belief that contains CR can often be described as second-order belief where the

34 35 36 37 38

with the generality of consent, see I.M. Lobo de Souza, ‘The Role of State Consent in the Customary Process’, 44 ICLQ (1995), p. 539. Although the relationship between individual state conduct and (general) practice as collective phenomenon reflects the same difficulties as does the interconnection between individual and collective belief. See North Sea Continental Shelf, supra, at p. 43, Paras. 73-74, and P. Manin, Droit international public, Masson, Paris, 1979, p. 28. O.A. Elias and C.L. Lim, The Paradox of Consensualism in International Law, Brill, Leiden, 1998, p. 84. Nicaragua case, supra, at pp. 99-100, Para. 188. As collective beliefs are social facts, which exist by justified attribution, the approach I offer can hardly be regarded as an offshoot of philosophical or legal psychologism.

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observer or a state believes that the community believes that CR. (iii) An attribution of collective belief may take the form of some linguistic act (declaration, resolution, comment, judgment, etc.). (iv) It is in the international legal discourse where a belief attribution may become justified. The act of belief attribution must therefore be made public in some form in order to have an effect on other agents and have a chance of becoming justified.39 (v) In practice, the justification for attributing beliefs concerning CR to the international community may take two typical, complementary forms. An attribution of a belief can be justified by other, already justified beliefs (with such normative content as rules, principles, and rationality standards) to which the belief to be justified is inferentially or derivatively related (systemic justification). The justification may also be grounded on the evidence in which the collective belief manifests itself (evidence-based justification). (vi) Beliefs, even individual (personal) beliefs, cannot be observed by another agent. One can only conclude their existence through their external manifestations, which prove their existence or constitute the basis for justification. We have three types of evidence (and their combinations) by which a belief can be justified: (i) (physical) actions, (ii) failures to act, (iii) and linguistic manifestations (statements, for short). For us, the crucial question is how one knows that collective beliefs with propositional content made up of customary rules are justifiably attributed to the community? I will choose and briefly outline a pragmatic approach placed in the context of international legal discourse. The conclusion will, in some respect, be rather meagre: a community belief is justified by virtue of being held for adequate reasons, implying appropriate reference to the manifestations of the community members’ beliefs and being successfully defended in the process of justification by interested agents.40 However, it will provide a flexible framework for further investigation. As I mentioned above, for a community-wide justification, the attribution of belief has to appear publicly and should be open to objections by other agents with conflicting interests. We have two typical, functional perspectives where the processes of justification may differ significantly: that of an observer (e.g. international courts, bodies of experts, such as the International Law Commission, NGOs, and theorists) and an actor (e.g. states).41 Belief attributions may take the form of assertions made publicly by an observer or actor in judgments, resolutions, declarations, opinions, academic literature, etc. On the other hand, from the actor’s perspective, belief attribution may also lay a foundation for an actor to act, abstain, or make a claim within the community. The various forms and occurrences

39 ILA report 2000, p. 14. 40 For this approach, see A. Leite, ‘On Justifying and Being Justified’, 14 Philosophical Issues (2004), p. 238. 41 For this distinction, see Mendelson, 1998, pp. 176-178. I do not wish to engage in the discussion of whether international (intergovernmental) organizations are themselves actors or only fora for the joint actions of state actors; I shall therefore only treat the states as international actors, whose beliefs contribute to the formation of collective belief bearing customary norms.

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of belief attributions conjoin in international legal discourse, generate or confirm higherorder beliefs, and reinforce each other against objections or counterclaims made by other observers and actors that hold opposite beliefs or opinions or that have conflicting interests. Justification depends on the ability of the interested agents (observers and actors) in the community to respond to these objections by providing adequate reasons and proof to support the belief. Practically, a belief attribution is justified if no reasonable objection is left without an adequate answer. The justification will be decided in international legal discourse according to the rules, processes, and institutions that govern the process of justification in the international legal community. The standard of reasonableness of objections and adequacy of answers is always defined under the rules and practices applied in the community.42 In the case of beliefs attributed to a community, the state of being justified (positive justificatory status) cannot be abstracted from the process of justification. A collective belief is not justified if the interested agents are not able to justify it.43 If justification depends on the justificatory process in which it takes place, then some particular features of the justification of customary norms as collective beliefs in international legal discourse must be set forth.

12.3.3

Some Features of Evidence-Based Justification of Customary Norms in International Legal Discourse

The justification of customary norms as collective beliefs follows the ‘claim – reasonable objection – adequate answer’ pattern.44 In international practice, evidence-based justification prevails over systemic justification due to the fact that Article 38(1)(b) expressly refers to the practice of international actors, which is a clear evidentiary basis for the attribution of customary norms to the international community.45 This was confirmed in the Gulf of Maine judgment: customary rules ‘can be tested by induction based on the analysis of

42 In a similar vein, Lowe describes the justificatory process relating to opinio juris as collective characterization of state acts by means of presumptions and rebuttals, A. V. Lowe, International Law, OUP, Oxford, 2007, p. 51. 43 For a more detailed account of this approach, see Leite, 2004, pp. 238-247, and R. Hakli, ‘On Dialectical Justification of Group Beliefs’, in H.B. Schmid et al. (Eds.), Collective Epistemology, Ontos Verlag, Frankfurt, 2011, especially pp. 149-150. 44 For the claim/response theory of the formation of customary international law, see Mendelson, 1998, p. 282. 45 That is not to say that systemic justification is excluded from the justification process. The requirement that in the justification process other international legal rules (as justified beliefs) should be given due regard is an aspect of systemic justification. Those who urge that moral principles shall be a determining element in the course of justification intend to place greater emphasis on systemic justification, see e.g. Lepard, 2010, pp. 77-95, South West Africa Cases (Ethiopia and Liberia v. South Africa), Second Phase, Judgment of July 1966, 1966 ICJ Rep. 6, at p. 24, Paras. 49-50.

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sufficiently extensive and convincing practice, and not by deduction from preconceived ideas.’46 As belief is attitude, a mental phenomenon, it cannot be directly observed and manifests itself to another actor or observer by what the subject (as holder of the belief) says and does or does not do.47 In the case of collective beliefs, what members of the community say and do or do not do individually or jointly may provide justification of different strength for attributing beliefs to the community.48 It is in this context that I offer some remarks on the particular problem of evidence-based justification of collective beliefs bearing customary norms. (1) A twilight period in the formation of customary norms.49 As long as the process of justification endures, a twilight interval is enclosed by the formation of customary norms.50 In this period, an overall uncertainty prevails as to the existence, content, and nature of the evolving norm. This period might be said (a) to start when a reasonable claim that implies the alleged customary norm first appears in and becomes part of international legal discourse, a claim to which other interested international agents may reply (see e.g. the Truman Proclamation, as one of the few, relatively clear examples), and (b) to conclude when the norm as collective belief can be viewed as being justified. (2) Three types of evidence and their interpretation. The three general types of external manifestations of belief may refer to the existence of belief, and, therefore, in the abstract, they all have evidentiary value that proves that the belief exists. It is indifferent whether a belief is properly justified by physical behaviour or failures to act or statements made by community members or the various combinations thereof. Anything counts which can reasonably serve as evidence of the belief attribution.51 The point is whether the methods by which one can treat a belief as justified is acceptable in the community or not. There can be social conventions, processes, or even legal rules 46 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment of 12 October 1984, 1984 ICJ Rep. 246, at p. 299, Para. 111. 47 On the problems of how to ascertain the content of beliefs, see I. Brownlie, Principles of Public International Law, Clarendon Press, Oxford, 2003, p. 7; M. Akehurst, ‘Custom as a Source of International Law’, 47 BYBIL 1975, p. 29; A.A. D’Amato, The Concept of Custom in International Law, Cornell University Press, Ithaca, 1971, pp. 33-41. 48 For the relation of state practice to justification, see Nicaragua case, supra, at p. 109, Para. 207. 49 I borrow this adjective from Justice Cardozo who spoke of the ‘twilight existence’ of international law (New Jersey v. Delaware 291 U.S. 361, 383 (1934)); see also J.P. Kelly, ‘The Twilight of Customary International Law’, 40 Vanderbilt Journal of International Law (2000), p. 535. Villiger observes that emerging customary norms are tertium genus between lex lata and lex ferenda, M.E. Villiger, Customary International Law and Treaties: A Manual on the Theory and Practice of the Interrelation of Sources, Kluwer, The Hague, 1997, p. 54. 50 J. d’Aspremont, Formalism and the Sources of International Law, OUP, Oxford, 2011, p. 164. 51 ILA report 2000, p. 14.

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which restrict the choice of method by which a normative belief can be attributed to the subject. In international law, such a restrictive, evidentiary rule is Article 38(1)(b) of the Statute, especially the requirement of general practice being an evidentiary standard, but that will be a matter for discussion in the next section. Physical behaviour (state practice) and statements are only possible signs, and, most often, partial and incomplete signs, of a belief relative to a customary rule. It is almost always questionable on what grounds one can recognize a non-binding decision taken by an international body, a state’s failure to act, or a statement as evidence of belief relative to a customary rule.52 These pieces of evidence are scarcely ever conclusive in and of themselves. Their interpretation is thus necessarily contextual, summative, and subject to other controlling principles. (3) Contextuality, summativity, coherence, and rationality. A piece of evidence may gain further strength from its context, from other proof, by the fact that it can be classified as one of a series of items of proof that justify a belief relative to a customary rule (contextuality).53 Observers (e.g. courts) will then assess a range of available evidence, that is the aggregate of proof that fits into the pattern (summativity). It is not only proof that should produce a pattern to justify a belief attributed to the international community, but the belief which they justify should also fit into a pattern of existing beliefs that represent other legal rules and principles (coherence) and should be consistent with rationality (rationabilitas).54 The standards of coherence and rationality, which are means of systemic justification, may control belief attribution based mainly on evidence in international practice. (4) Reactivity, intensity, and the growing quantity of evidence. The structure and features of international interactions have undergone a thorough change in recent decades, which has resulted in an ever larger number of statements, declarations, resolutions, and acts made jointly or severally by international agents (states and intergov-

52 Even statements pose a great many difficulties because the statements typically made by states are political in nature, context-dependent, and implicit of possible legal effects. For a typology of statements, see Y. Dinstein, ‘Customary International Law and Treaties’, 322 RdC 2006, pp. 279-281. 53 An act or omission of a state may make new sense if evaluated within a pattern of similar acts, omissions, or supporting statements that reflect them. Art. 38(1)(b) of the Statute eventually prescribes such patterns of behaviour to be able to prove a belief relative to a customary rule (general practice of states). 54 This requirement of belief attribution seems somewhat theoretical and evident in international legal practice, but in the traditional theories of municipal customary law rationabilitas has been a strict requirement restricting the content of the customary rule, cf. ‘Consuetudinis ususque longaevi non vilis auctoritas est, verum non usque adeo sui valitura momento, ut aut rationem vincat aut legem.’ Codex Iust. VIII, 52, 2. quoted by B. Grosschmid, Magánjogi előadások [Lectures in Private Law], Athenaeum, Budapest, 1905, p. 463; see also E.C. Stowell, International Law. A Restatement of Principles in Conformity with Actual Practice, Holt, New York, 1931, pp. 28-29.

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ernmental organizations). International interaction within the international community is increasingly reactive in nature: international actors reflect on others’ statements or conduct, whereby the number of linguistic reactions (statements and declarations) has increased at the expense of the amount of physical conduct as components of state practice.55 It is not only context-sensitive statements that are proliferated, but also free-floating, abstract statements made by states, which directly assert the existence of legal or other rules within the international community,56 possibly reflecting second-order beliefs relative to the content of international law, which includes customary rules.57 Dualists are puzzled by these developments as they perceive, for example, that these modern tendencies trash the foundations of custom by inverting the traditional priority of state practice over opinio juris.58 However, all this is irrelevant because the foundation of customary international law has remained the same, that is collective beliefs that prevail in the community. No piece of evidence has priority over other proof. What counts is how, as truth-indicative grounds, it justifies the ascription of a belief to the community and fits into the pattern of other justifiers or defeaters. Although evidentiary rules like Article 38(1)(b) in some way restrict the method of justification, they are subject to interpretation and easy to overcome if an observer otherwise believes that the available statements as justifiers in fact justify a collective belief.59 (5)

A customary norm becoming justified: the role of the International Court of Justice. The conventions in relation to the justificatory processes prevailing in a community determine who decides whether a customary norm is justifiably attributed to the international community. In the present state of international cooperation, no absolute authority exists in this respect. However, it is clear that the Court, whose decisions are evidence of international law, has the greatest, relative authority in spite of the fact that the precedent system is ruled out by Article 59 of the Statute.60 Besides its authority, this impact of the

55 E.g. as to the Jurisdictional Immunities case, the judgment provides evidence that the International Law Commission’s report of 1980 evidences that the existing general state practice bears out the customary rule of State immunity; Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), Judgment of 3 February 2012 (available at www.icj-cij.org/docket/files/143/16883.pdf, accessed 10 December 2012) at p. 24, Para. 56. 56 G.J.H. van Hoof, Rethinking the Sources of International Law, Kluwer, The Hague, 1983, p. 217. 57 This change in practice is due to various, well-known factors, see van Hoof, 1983, pp. 14, 65-71, or Villiger, 1997, p. 51. 58 A.A. D’Amato, ‘Trashing Customary International Law’, 81 AJIL (1987), p. 101. 59 Cf. A. Roberts, ‘Traditional and Modern Approaches to Customary International Law: A Reconciliation’, 95 AJIL (2001), p. 763 (modern custom seems to be based on normative statements of lex ferenda disguised as lex lata expressed in mandatory terms). 60 It follows from the nature of customary norms that first of all ‘the imprimatur of a court attests its jural quality’, New Jersey v. Delaware 291 U.S. 361, 383 (1934).

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Court’s statements is also due to their generality. Though formally only having an inter partes effect, in a material sense these statements, prevailing over other justifiers or defeaters, may relate to the whole community because the Court declares what the law is on an issue and this makes it easier for a corresponding first-order or second-order belief to be attributed to the whole community.61 States may later make references to these statements and use them as reasons to make claims that correspond to the content of this norm, thereby producing additional pieces of evidence to justify the rule.62 The Court’s pronouncement that a particular customary rule exists does not necessarily conclude the justificatory process.63 The Court’s statements themselves are part of the justificatory process and it is crucial how interested agents respond to the statements that appear in Court decisions. Innumerable, approving references confirm the judicial justification, and, without reasonable objections to the Court’s statements, the norm can be viewed as justifiably attributed to the community. On the other hand, as customary rules come into being by justified attribution and the Court plays a considerable part in determining when a collective belief that bears a customary norm is justified, the Court also contributes to the establishment of the norm, that is to international law-making.64

12.3.4

An Outlook: opinio juris as Belief and International Treaties

If customary norms exist in the form of collective beliefs (opinio juris), then what can be said about other international legal norms, such as treaty norms? Though I have no intention of engaging in a general ontology of legal norms, from the intersubjectivistmonist approach outlined here it follows that treaty norms also exist as collective normative

61 In the Lotus case, the statement made by the Permanent Court of International Justice that jurisdiction in collision cases does not belong exclusively to flag states (strong, rebutting defeater) has overridden the discernible pattern of previous state practice which had reflected certain, specifically affected states’ attitudes that flag states have exclusive criminal jurisdiction in such cases (e.g. the Franconia or Ortigia decisions as justifiers), Lotus, supra, at pp. 28-30, but see especially Judge Altamira (diss. op.) pp. 100-101. Therefore, following the judgment, it has not seemed justifiable to attribute such collective belief to the international community, and thus the states have been forced to incorporate into treaty law the rule rejected by the PCIJ as a customary rule. (International Convention on Certain Rules Concerning Civil Jurisdiction in Matters of Collision, Brussels, 10 May 1952, 439 UNTS 217). 62 However, the standards which govern the justification of customary norms in the Court’s decisions are not clear. For the different types of justification, see A. Alvarez-Jiménez, ‘Methods for the Identification of Customary International Law in the International Court of Justice’s Jurisprudence’, 60 ICLQ (2011), pp. 689-703. 63 Cf. Mendelson’s point that the formation and application of customary norms are not two distinct stages, Mendelson 1998, pp. 175-176. 64 Cf. Alf Ross’ thesis that a judge does not simply apply an existing rule, but creates and justifies the particular rule which plays a role in a case A. Ross, A textbook of international law, Longmans, London 1947, pp. 8082; see also d’Aspremont, 2011, p. 165.

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beliefs, which also require justification. This model might shed a somewhat different light on the relationship between customary norms and treaties.65 (1) A treaty may represent both evidence and source of customary international norms. The Court clearly indicates this in the Libya/Malta Continental Shelf decision.66 If we concede that treaties can contribute to the birth of new customary norms,67 the crucial question is how this can happen. How can a treaty generate beliefs (a) on the part of parties, on the one hand, that a rule in this treaty coincides with a general legal rule that is also binding on non-parties as a customary rule and (b) on the part of non-parties, on the other hand, that the community shares a collective belief that bears a legal rule coinciding with a treaty norm to which they are not parties? One can describe the process of how the Hague Conventions of 1907 have become the crystallizing point of relevant customary rules of land warfare, but the particular process would be difficult to generalize and apply to other cases, for example, to how the agreements of 1815 providing for Switzerland’s neutral status contributed to the birth of a customary norm with the same content.68 Being a form of belief formation, this is a non-transparent process, which is not observable as such. In describing or analysing this process, an observer assesses proof of belief formation and attributes beliefs to states (parties and non-parties), a group of states, or the community itself. Thus everything turns on the summative assessment and standards of justification and evidence.69 Therefore, it is understandable that scholarly endeavours are focused on offering a system of such justificatory standards.70 65 In general, see Dinstein, 2006, pp. 346-426 and ILA report 2000, pp. 42-54. 66 ‘[M]ultilateral conventions may have an important role to play in recording and defining rules deriving from custom, or indeed developing them’ (emphasis added), Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment of 3 June 1985, 1985 ICJ Rep. pp. 13, at 29-30, Para. 27, see also Manin, 1979, p. 28 and Lepard 2010, pp. 30-31. However, it is not evident which case regards particular treaties. At the time of their coming into force, did the provisions of the 1907 Hague (IV) Convention in relation to land warfare represent proof of pre-existing customary norms or did they merely constitute grounds for subsequent state practice serving as proof of posterior customary norms, or both? Yearbook of the International Law Commission Vol. II (1966), pp. 230-231; Rousseau 1970, p. 334. Similarly, did the relevant provisions of the UNCLOS Treaty that provided for the possibility of an exclusive economic zone of 200 miles codify existing customary norms or create new rules? Manin, 1979, p. 29. Reuter rightly observes that a treaty codifying some part of customary international law practically always adds new rules to the pre-existing and codified customary rules, P. Reuter, Droit international public, Presses Univ. de France, Paris, 1976, p. 98. 67 Art. 38 of the 1969 Vienna Convention on the Law of Treaties (Vienna, 23 May 1969) 1155 UNTS 331, or North Sea Continental Shelf, supra, at p. 41, Para. 71. 68 Cf. Yearbook of the International Law Commission Vol. II (1966), pp. 230-231. 69 It seems that treaties provide three general types of evidence which might be used under certain circumstances for justifying beliefs that carry customary international law: (i) the states’ actions by which they contribute to the creation and conclusion of a treaty (negotiations, conferences, signature, ratification, etc.); (ii) the existence of the treaty itself; and (iii) state practice in implementing the treaty provisions, Dinstein 2006, pp. 346-382; R. Higgins, ‘International Law and the Avoidance, Containment and Resolution of Disputes, General Course on Public International Law’, 230 RdC (1991), pp. 56-61. 70 E.g. how much evidentiary weight should be accorded to the signature and ratification of treaties, to the number of state parties, to the possibility of reservations, to regional or bilateral treaties, to the diverging

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(2) On the other hand, the traditional, restrictive treatment of opinio juris is closely related to the problems of how to describe the relationship between customary international law and treaties. For example, Guzman takes the view that ‘treaties are relevant to the formation of CIL only to the extent they represent evidence of opinio juris.’71 The difficulty with such statements that reflect a traditional view on opinio juris is that treaties also always generate beliefs that bear legal rules because the main function of international treaties (or specifically their texts) is to establish and maintain beliefs in which treaty norms exist. What is the difference between normative (legal) beliefs generated by general state practice (traditionally coined as opinio juris) and those established by a treaty (text)?72 Treaty norms also exist in the form of beliefs, which are also opinio juris regarding their nature, and the text of the treaty will be the principal evidence for justifying such beliefs.73 The existence of a valid treaty text, which is a definite and objective trace of the states’ previous legal commitment, makes justification much easier than general state practice does in the case of customary norms.74 (Of course, this is not to deny the multiple problems of treaty interpretation.) Accordingly, opinio juris is not a subclass of normative (legal) beliefs; it generally signifies the general class of the normative (legal) beliefs and is not confined to the area of customary law.75 Legal norms with the same content carried by opinio juris (normative legal beliefs) related either to a local or general customary norm or to a provision of a multilateral treaty or a state act qualified as undertaking a unilateral legal obligation do not differ in their nature, only in their effects and justification.76 The restrictive conception of opinio juris in the traditional talk on customary international law may also stand in the way of understanding the correlation between treaties and customary norms, namely, the role of treaties in justifying customary norms and the role of customary norms in interpreting treaty texts.

71 72

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application of treaty norms, or to how to evaluate the reservations made by some state parties, etc., d’Aspremont 2011, pp. 152-153; Lepard, 2010, pp. 30-32, 192-205. These efforts have so far failed in reaching a consensus. Guzman, 2005, p. 163; Akehurst, 1975, pp. 43-44. Naturally, both are accompanied by other beliefs relating, for example, to evidentiary rules by which a customary norm is to be recognized or to the rule of pacta sunt servanda or other rules specifying the effects of these rules. As Villiger points out, it does not matter whether a legal rule appears in a treaty rule or a customary norm because the effectiveness of its binding force is the same, Villiger, 1997, pp. 58-59. Elias and Lim following the Nicaragua judgment place opinio juris against opinio obligationis conventionalis, Elias and Lim, 1998, p. 6, although the latter is a form of opinio juris, which only refers to the specific justificatory basis for the normative belief. For the view that treaty is merely evidence, see Stowell, 1931, p. 31. The restrictive view of opinio juris, treating it as being peculiar to customary law, is practically unanimous in the academic literature and also in the Court’s practice, e.g. North Sea Continental Shelf, supra, at p. 41, Para 71, Nicaragua case, supra, at p. 98, Para. 184. Naturally, a state being party to a treaty that reflects customary norms will presumably use as a justificatory basis the more or less definite treaty provisions instead of the indefinite state practice (custom); for this presumption, see North Sea Continental Shelf, supra, at pp. 44-45, Para. 78.

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12.4

Article 38(1)(b) of the Statute as Evidentiary Rule

From the claims that customary international law is a set of collective beliefs that prevail in the international community and that customary norms exist by justified attribution, it follows that Article 38(1)(b) of the Statute does not define the constituent elements or sources of customary norms; it rather sets forth standards of how to justify a collective belief bearing a customary rule in an important forum of international legal discourse.77 As this justification is to be based expressly on evidence (state practice), this provision of the Statute is primarily an evidentiary rule. In arguing for this claim, a closer look at the conceptual characteristics of the prescribed requirements (general practice and acceptance) is in order. In the next subsections, this inquiry will be framed within three supporting propositions: (i) acceptance cannot be a necessary, constituent element of customary international law; (ii) general practice is a mental construct, a means of justifying a customary norm; and (iii) international law does not govern the formation of customary norms because it, by and large, is an extra-legal process.

12.4.1

What Has Acceptance (Consent) Got to Do with Customary International Law?

As customary norms exist in the form of collective beliefs justifiably attributed to the community, acceptance (consent) will have something to do with customary law if it is somehow connected with beliefs.78 With regard to customary law, two forms of such connection can be distinguished. One of them concerns specific acceptance, which shows itself in distinct (individual or joint) acts of particular states (official statements, declarations, etc.) while the other relates to an indefinite, general form of acceptance attributed to the whole international community.79 (1) Specific acceptance. Specific acceptance differs significantly from belief. It is a brief, volitional mental act indicating relatively weak epistemic commitment toward its propositional content while belief is a durable, mostly passive, cognitive attitude.80 However, they may have strong interconnections. Actually, if acceptance has normative propositional content (e.g. a rule), its close relationship to belief or beliefs is necessary. Why? Let us 77 It is not a new idea that Art. 38(1)(b) only sets forth evidentiary rules, see d’Aspremont, 2011, p. 153. 78 I use acceptance and consent in the same sense, for an insistence on the wording of the Statute, see D.J. Bederman, Custom as a Source of Law, CUP, Cambridge, 2010, p. 143; Elias and Lim, 1998, p. 11. 79 As the text of the Statute leaves the agent of acceptance unmentioned, at least these two forms of acceptance can be discerned from practice, van Hoof, 1983, p. 95. This problem simultaneously exists in relation to opinio juris, ILA report, 2000, p. 8; Dinstein, 2006, p. 207; J.A. Beckett, ‘Countering Uncertainty and Ending Up/Down Arguments: Prolegomena to a Response to NAIL’, 16 EJIL (2005), p. 220. 80 For some of the fundamental differences, see P. Engel: ‘Introduction’, in P. Engel (Ed.), Believing and Accepting, Springer, Dordrecht, 2000, pp. 3-12.

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assume that the subject accepts a rule as legally binding. Acceptance, which is directed to this propositional content, is an active, conscious, pragmatic, volitional, context-dependent mental act limited in temporal terms. Here, a basic question emerges. In what form will the effects of this acceptance survive those unconscious phases when the subject does not think of this acceptance and its content? The difficulty lies in the fact that acceptance as an active, volitional mental act has no passive form. Moreover, acceptance is a single-shot, non-recurring act. The subject is not required to reiterate the act of acceptance in order to have its effects set in. Strictly speaking, one cannot accept the same content with the same effects more than once. Additional acts of ‘acceptance’ will not actually be acts of acceptance if the effects of the first and original act subsist; they are rather acts of confirmation, which may only have practical significance. Therefore, what does acceptance (or its content) change into after it has been realised?81 Here, belief enters into the ontological picture of law. Having accepted a rule as legally binding (legal rule – LR), one brings about a belief (or conviction or knowledge) that LR. This belief may take occurrent and non-occurrent (dispositional) forms. A proper act of acceptance alters the dispositional profile of the mind in the sense that it will encompass a proneness or tendency to have the belief that LR occurring in particular circumstances. Having been completed, the proper effect of the acceptance directed to a normative content of LR will be the establishment of normative belief and its effects will further on exist as occurrent and dispositional belief that LR. This is the basic connection between legal acts of acceptance and beliefs that carry legal normative content, which applies to legal norms in general, not only to customary rules.82 A distinct act of acceptance, accompanied by other beliefs, may generate first-order beliefs that constitute the mental form in which the effects of acceptance subsist. Under these considerations, two basic roles of specific acceptance can generally be made out in terms of customary international law. With other beliefs, it may give rise to first-order beliefs that CR and higher-order beliefs, which may contribute to the formation of collective belief that CR within the community.83 It may also be a manifestation of 81 This temporally limited nature of acceptance as active mental act may have driven many authors to use the concept of opinio juris in describing customary international law in addition to or instead of the concept of acceptance, e.g. Brownlie, 2003, p. 8; R. Jennings and A. Watts (Eds.), Oppenheim’s International Law Vol. 1. Peace, Longman, Harlow, 1993, p. 27; J. Touscoz, Droit international, Presses Universitaires de France, Paris, 1993, p. 226; Reuter, 1976, p. 93; Bederman, 2010, p. 142; Rousseau, 1970, p. 315; Elias and Lim, 1998, pp. 4-24; Lowe, 2007, p. 38. 82 The scope, forms, and effects of (linguistic) acts of acceptance (consent) may significantly diverge, but determines the manner of how it can bring about first-order or higher-order beliefs in the international community; see Nuclear Tests (Australia v. France), Judgment of 20 December 1974, 1974 ICJ Rep. 253, at pp. 267-268, Paras. 43, 46. 83 I am at a loss to understand why Guzman denies this relation between consent (acceptance) and formation of customary norms as beliefs (opinio juris), Guzman, 2005, pp. 147-148. He fails to offer an account for why an act of acceptance would not be able to generate first-order or higher-order beliefs relating to a cus-

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existing normative belief held by the actor. In this latter case, a distinct act of acceptance will only provide evidence for justifiably attributing belief that CR either to the community (collective belief) or to the particular actor that accepts (individual belief).84 Therefore, acceptance is not a component of customary rules, but it may either generate or provide proof of the beliefs which bear customary rules (constitutive or declaratory acts of acceptance). All this only applies to distinct, individual, or joint acts of acceptance (specific acceptance).85 However, acceptance is an ambiguous term and also denotes an indefinite, general (collective) acceptance in practice. (2) General acceptance. Acceptance, if used as general, collective acceptance, has a very different conceptual character from that of specific acceptance.86 Like general practice, it is also a mental construct, a summative concept by which one can make a subsequent overall assessment of, and qualify, a selected series of joint or individual state actions or statements as accepting a regularity or norm as law. Thereby, the concept of general acceptance is fortunately suitable to obscure or even conceal whether the particular acts of acceptance on which its justification is grounded are constitutive or declaratory in nature. In construing states’ conduct in a particular case as general acceptance, an observer simultaneously deduces evidence for justifying a collective belief that bears a customary norm. Furthermore, the summative nature of the concept of general acceptance is strengthened by the wide sense in which this indefinite term is often used. The traditional talk on customary international law is susceptible to the assumption that if a customary norm prevails in the international community, that is, if international actors hold a collective belief concerning a customary norm, then they have accepted it. However, the formation of

tomary norm in the members of the community and, therefore, also bring about expectations and incentives to comply with this norm. 84 If the act of acceptance is the first public reaction or response made by an international actor to the possibility of a legal rule, it will be impossible to determine in practice whether the act of acceptance generates firstorder belief or is simply a manifestation of a pre-existing belief. The theoretical answer, unfit for use in practice, is highly abstract: it will bring about first-order belief only if acceptance as a volitional mental act alters the dispositional profile of the mind. 85 The Court applies the test of specific acceptance in relation to the states which are parties to the case, e.g. Nicaragua case, supra, at pp. 97-98, Paras. 203, 207, 208; Gulf of Maine case, supra, at pp. 294-300, Paras. 94, 97-112; see Elias and Lim, 1998, p. 84. 86 In the Lotus judgment, the PCIJ famously took the side of general acceptance in speaking about ‘usages generally accepted as expressing principles of law’ Lotus, supra, at p. 18; for the Court’s similar approach, see Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment of 25 July 1974, 1974 ICJ Rep. 3, at p. 23, Para. 52; see also A. Aust, Modern Treaty Law and Practice, CUP, Cambridge, 2007, p. 108; L.B. Sohn, ‘Generally Accepted International Rules’, 61 Washington Law Review (1986), p. 1073; Villiger 1997, p. 49; Lobo de Souza, 1995, pp. 536-539. However, here, the relationship between individual acceptance and collective acceptance raises many problems which are similar to those of the relationship between individual and collective belief.

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beliefs is not conditioned upon any act of acceptance.87 In practice, this widened meaning of general acceptance summarily boils down to the simple proposition borne of a posterior evaluation of international practice that the community holds a belief concerning a customary norm, and, this being the case, the general form of acceptance conceptually merges with opinio juris.88 (This broad understanding of general acceptance might explain why many commentators easily identify the textual requirement of acceptance with the extratextual requirement of opinio juris.) In this broad sense, general acceptance is basically declaratory in nature, signifying that a collective, normative belief is attributed to the community and serves as a conceptual means for justifying such belief attribution. (3) In sum, the distinct acts of specific acceptance may generate beliefs that bear customary norms or confirm their existence. On the other hand, if Article 38(1)(b) of the Statute provides for general acceptance, then in its broad sense it will simply indicate in common usage that the community holds a normative belief (opinio juris); it is therefore only declaratory in character. In this usage, acceptance taken in general will be an indefinite and summative standard for subsequently justifying collective belief that bears a customary norm.

12.4.2

General Practice: A Concept with Strange Characteristics

In the case of written law (like treaty law), the agreement of international actors embodied in a legal text brings about legal rules in the sense that the legal instrument will be strong evidence for the existence of the abstract, legally binding rule and an extremely strong 87 It is a false premise that an act of acceptance relative to the content of belief always stands at the beginning of belief formation and that without such an acceptance no belief can be formed. For such a common and mistaken view, see Stern’s thesis that ‘there are always wills of states to be found at the origin of customary rules’, Stern, 2001, p. 108. This is not so. Beliefs cannot in every case be traced back to definite acts of acceptance. One may take cognizance of a fact or state of affairs without definitely accepting it. (While I believe that there is a repulsive, anti-gravitational energy in space called dark energy, which explains the accelerating expansion of the universe, I do not know when and how this belief of mine was formed and I do not remember any definite act of acceptance by which I appropriated this fact. Beliefs are often formed by and in unconscious mental processes.) In contrast to acceptance, beliefs are not under our reflective control, and one may hold a great many beliefs, whose content one has not accepted. Accordingly, Rosalyn Higgins is right in claiming that a customary rule is involuntarily undertaken, Higgins, 1991, p. 63. Acceptance may be one of the indirect sources of customary norms when beliefs that bear customary norms are generated, but such beliefs may also come into being without any definite acts of acceptance. For a similar view, see Jennings and Watts, 1993, p. 29. 88 For a good illustration of how the inflated meaning of acceptance absorbs opinio juris, see Elias and Lim, 1998, p. 14. (also with reference to opinio juris as having ‘natural consensual meaning’ at p. 18) and Villiger, 1997, p. 49. Cf. Gilbert’s definition of collective belief as a jointly accepted view in a society, Gilbert, 1989. Taking the previous example, though my belief in the repulsive, anti-gravitational, universal energy has not been constituted by a definite act of acceptance, now that I definitely hold this belief, it might be said that I have ‘accepted’ this state of affairs (in the broad sense of the term acceptance). However, any act of ‘acceptance’ of mine will only be a manifestation of an existing belief, that is a declaratory act.

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justifier for the attribution of collective belief that corresponds to the normative content of the legal rule and conjoins with other beliefs which relate to the legal status of such legal instruments as international treaties. Here, the formal agreement clearly establishes the legal rule carried by collective belief, and the formation of treaty norms, by and large, is governed by international law. This is not the case with customary international law, where general practice plays a role which is very different from that of written, formal agreements. ‘General practice’ has strange conceptual characteristics, a fact which merits some thoughts. General practice is an abstract idea. It denotes particular relations, in terms of a predefined pattern, within a set of particular state actions (particular state practice) being related to an issue in international interactions. Its generality suggests that the number or weight of state actions following this pattern (e.g. rule R) significantly exceeds the number or weight of state actions which are inconsistent with rule R. After all, general (state) practice under Article 38(1)(b) may be taken to refer to the overwhelming preponderance of state actions that share the property of being a manifestation of or coinciding with the regularity of rule R over those state actions which are inconsistent with R. In contrast to the common view prevailing in the literature, general practice is not material or objective in nature. General practice is not a given in international interactions; it is a mental construct implying selection, abstraction, comparison, weighing, and evaluation. In evaluating the state practice at issue, it will be the agent itself (e.g. an international court) that subsequently constructs the relevant general practice that serves as a means in the justificatory process. By claiming the generality of state practice (and the rule discerned from it), one will correspondingly attribute a (collective) belief that R to the international community because the generality of the practice may serve as both basis and evidence for such an attribution. Constructing general practice relating to R represents an important part of the process of belief attribution, where relevant particular state behaviours will be evidence for the existence of the rule R and attribution of individual beliefs that R while the generality of practice lays a foundation for, or even amounts to, the ascription of collective belief that R to the community. In the context of Article 38(1)(b), constructing the relevant general practice relating to R is tantamount to constructing evidence for the collective belief that R. It cannot be determined whether the relevant general practice as ex post facto evidence of a customary norm is the cause (source) or the result of this rule. The formation of a customary rule and the relevant general practice cannot be placed in chronological order as general practice is subsequently and retrospectively constructed from selected state actions that have happened for a certain period of time. However, it is not known or defined at what point of this period bridging over the first and last facts included in general practice the customary rule is actually created, so it is not known which of these actions has contributed to generating the relevant collective belief and corresponding customary rule and which of them has only confirmed its existence.

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It is only a particular (individual or joint) state action as proof of general practice to which a chronological, and thus either formative or confirmatory, aspect can be meaningfully related. However, even in this case, the result is doubtful. An actor may act for very different reasons, which are sometimes difficult for other actors or observers to identify, and the effects of such an act can vary. Theoretically, one might assume that a particular state action completes the formation of a customary rule,89 but this ‘last straw model’ does not particularly work in theory and is even less successful in practice.

12.4.3

On the ‘Chronology’ of the Customary Process

An action will become an element of general practice by subsequent and retrospective interpretation and evaluation because general practice is not an objectively given form of facts or state of affairs. This being the case, for a customary rule to be created, an action assumed to be the last in the formative process is not enough, but it is necessary that other players on the international scene evaluate this action as an element of general practice (and possibly a manifestation of opinio juris). There is no general practice until international agents (actors and observers) have constructed it. All this means that a state action should have effects in the community in order to qualify as a factor in the formation of a customary rule. What are these effects? The most important one is that the action regarded by other agents as part of general practice should bring about relevant normative first-order and higher-order beliefs relative to the existence of the customary rule in the community (otherwise, one could not assume that the action completes the process of formation of a customary rule). If an action becomes a relevant factor in the process of formation of a customary rule by its effects, then the customary rule comes into existence the moment these effects set in (and not when the action is taken). However, the point in time when this happens is impossible to define. These effects are scattered in time, may diverge among the various members of the community, and should reach a critical weight to be able to complete the formation of customary rule. (This will be another question of subsequent evaluation.) Furthermore, the formation of a particular actor’s (S2’s) belief as an effect of the action taken by S1 and the external manifestation of S2’s belief, by which someone else (S3) could conclude the existence of S2’s belief, differ in time. It will even be impossible to tell the time when the effect of an action sets in with a particular actor (S2) because others (e.g. S3) can only subsequently infer S2’s belief from its manifestations. Thus, the last straw model does not work, not even in theory.

89 G. von Glahn, Law Among Nations, MacMillan, New York, 1981, p. 21.

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What follows from all these considerations? The formation of customary rules is that of beliefs, and, like belief formation, is always a vague, unascertainable, subjective, complex, and very often unconscious process, not governed by any discernible rule.90 As one can conclude the formation of a belief from its subsequent manifestations and as these manifestations are to be evaluated in terms of its further, subsequent effects of inducing additional beliefs in the community, a customary rule is always a product of ex post facto, retrospective reactions or evaluations in the international legal discourse, which themselves also become a part of the justificatory process and an object of further, subsequent reactions and evaluations. In the justificatory process, the two key terms of Article 38(1)(b), acceptance and general practice gain new meaning as conceptual instruments of overall and subsequent evaluation. They simply convey that the attribution to the community of belief that bears a customary rule is justified, and do not control, detail, and describe, but cover up and conceal the process of formation of a customary rule. The formation of customary international law and relevant beliefs is an extra-legal process; it has no definite or intelligible commencement, determinable end, discernible stages, chronological order, or standard, permanent elements.91 One simply does not know how particular customary rules form.92 Neither Article 38(1)(b), nor other rules (customary rules) regulate the formation of customary international law93; they only provide criteria for its recognition or discernment, or to put it another way, Article 38(1)(b) determines the evidentiary basis for attributing to the community normative beliefs that bear customary rules. This conclusion is supported by the Court’s recent

90 Mahiou simply speaks about the ‘mystery of the formation of customary international law’, A. Mahiou, ‘Le droit international ou la dialectique de la rigueur et de la flexibilité’, 337 RdC 2008, p. 321. Stern’s review of the voluntarist, objectivist, and normativist strands relating to the question of how and why opinio juris is established with respect to a particular norm illustrates the complete perplexity that prevails in scholarly writings, Stern, 2001, pp. 95-108. 91 This explains the lack of common understanding in relation to how customary international law is formed, Kelly, 2000, p. 450. Cf. the theory on the spontaneous formation of customary international law; for a summary, see Cancado Trindade, 2005, pp. 173-174; M. Kamto, ‘La volonté de l’Etat en droit international’, 310 RdC (2004), pp. 267-268; P-M. Dupuy, ‘L’unité de l’ordre juridique international’, 297 RdC (2000), pp. 158161. 92 See Reuter, 1976, p. 95. Cf. ‘les vapeurs insaisissables d’un processus de fait’; Dupuy, 2000, p. 164. See also d’Aspremont, 2011, pp. 166-168. 93 The thesis that neither international law in general, nor Art. 38(1)(b) of the Statute governs the formation of customary international law may seem, at first blush, to be rather odd. In the Nicaragua judgment, the Court appears to refer to the conditions set forth by Art. 38(1)(b) as those of formation of customary norms, Nicaragua case, supra, at pp. 108-109, Para. 207. Many authors also insist that legal rules govern the formation of customary international law and that these legal rules are themselves customary norms, e.g. Elias and Lim, 1998, p. 7; R.M. Walden, ‘Customary International Law: A Jurisprudential Analysis’, 13 Israeli Law Review (1978), p. 91.

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statement, where Article 38(1)(b) was treated as providing criteria ‘for identifying a rule of customary international law.’94

12.5

Discerning Customary Rules: Epistemic Deficit and the Summative Approach

In the previous sections, I have often referred to uncertainties by which the justification of customary norms is characterized. Now, I shall sum up those epistemic difficulties which typically emerge in dealing with customary norms and support the thesis that their formation is epistemically non-transparent.

12.5.1

Epistemic Deficit and Justification

If we describe customary norms as collective beliefs, the multiple problems that arise in distinguishing customary rules can be explained by the general epistemic problems that relate to belief attribution. From this perspective, the typical features of the epistemic deficit surrounding the discernment of customary norms are as follows. (1) As the formation of a belief that bears a customary rule and its manifestation or manifestations are separated in time and one can only conclude the existence of a belief from its manifestations, it is therefore impossible to determine the moment that the individual beliefs arise. (2) In most cases, the formation of a singular customary rule has no objectively determinable commencement.95 It is up to the agent assessing the process to single out the pieces of evidence that provide justification for the formation of a customary rule; the first item of proof in time is thus determined through evaluation and selection. Not knowing what the first manifestation of a belief was, the agent only marks out one for the purpose of justification.96

94 Jurisdictional Immunities, supra, at p. 23, Para. 55. In Nicaragua, the Court also seems to imply that state practice is preceded by the rule itself: ‘[t]he Court must satisfy itself that the existence of the rule in the opinio juris of States is confirmed by practice’, Nicaragua case, supra, at p. 98, Para. 184; see also Stern, 2001, p. 93. 95 For a similar view, see Mendelson, 1998, p. 175. 96 Therefore, general questions such as: how does the belief that the states are legally obligated arise in the first place?, are meaningless, see C.A. Bradley and G.M. Gulati, ‘Customary International Law and Withdrawal Rights in an Age of Treaties’, 21 Duke Journal of Comparative & International Law (2010), p. 4. Selecting the first relevant instance is always a matter of subsequent evaluation. For example, are the orders of 1403 and 1406 issued by Henry IV or the treaty of 1521 concluded between Charles V and Francis I part (or the beginning) of the usage relating to the immunity of fishing vessels? See The Paquete Habana, 175 U.S. 677 (1900). Does it make sense in such cases to refer to ‘the initial stages’ of the life of a rule? See Elias and Lim, 1998, p. 20.

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(3) One can rarely make certain that an act or abstention or even a statement can be interpreted as a manifestation. Belief attributions have a fundamental indeterminacy; the various items of proof can be assessed under different interpretive frameworks. Moreover, various beliefs with similar content may have diverging manifestations which increase this interpretive problem. (4) In evaluating a particular state action, in the absence of accompanying or other relevant linguistic acts (statements), one does not know if the action is rule-governed or if the state is simply acting for instrumental or prudential reasons. Even if the act is accompanied or followed by statements, the reasons for making the statement, its interpretation or sincerity, or the extent to which the rule provides a reason for the action in addition to other reasons may remain uncertain. (5) If there were sufficient contextual endorsement (e.g. statements and manifestations of other supporting, justified beliefs) to conclude that a particular state action is rule-governed, an observer or other actors would have substantial difficulty in determining whether the rule governing the behaviour is seen by the actor as legal or non-legal (e.g. moral) in nature (the indeterminacy of attributing a belief with normative, legal content to an actor). One simply does not know in a particular case when and how an observed regularity acquires a normative aspect and a non-legal expectation or requirement transforms a (customary) legal rule.97 (6) One rarely knows whether a particular state action is the cause (source) of an evolving customary rule or the result (manifestation) of an already existing customary rule. This stems from the following problem: for the reasons detailed previously, it is impossible to determine precisely the point in time when a customary rule has come into being.98 The significance or weight of an action can be measured by its effects, which are not traceable in their entirety.

97 The academic literature is full of perplexity in attempting to explain these transformations: e.g. those norms which are especially important, more fundamental, or of a higher order than other norms become legal, Guzman, 2005, p. 139; moral issues may determine whether a norm is elevated to the level of legality, Roberts, 2001, pp. 762-763, or Lepard, 2010, pp. 110-111; or norms gain their legal status by articulation, D’Amato, 1971, pp. 74-75. The Court has stopped at practice being required to have legal expression and form, whatever this may mean, South West Africa case, supra, at p. 34. 98 Villiger also concludes that ‘it would be futile to want to determine the exact moment when the customary rule has arisen’, Villiger, 1997, p. 54. This uncertainty undermines the persistent objector doctrine. If a state must refuse to accept the rule while it is still ‘in the process of formation’, Brownlie, 2003, p. 10, the application of this condition is highly doubtful if one does not know when the customary rule at issue was established.

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Law in Mind: Towards an Explanatory Framework for Customary International Law

Bridging the Epistemic Gap under the Veil of Generalization: The Summative Approach

The practice of the Court reflects a practical technique by which the epistemic gap and other difficulties that arise in interpreting Article 38(1)(b) might be overcome in particular decisions. This technique, which is quite common in legal reasoning and which I shall call the summative (all-in-all) approach, seems to remedy some problems that accompany the different accounts of customary international law. With regard to customary norms, by summative approach I mean an overall, subsequent, and retrospective assessment of a range of selected evidence for (and possibly against) the collective belief that bears a customary rule. The most distinctive feature of this approach is that the Court, in investigating the existence and possible application of a customary rule, does not label and qualify the individual acts or manifestations of acceptance, opinio juris, or usus. Only after having marshalled all the relevant facts would it draw general conclusions relative to the qualification of the aggregate of these factors which then point towards the existence or nonexistence of a customary norm in a particular case. This attitude of generalization makes it possible not to answer the questions that would come to light when it scrutinizes and evaluates the individual acts of states within the factual framework of the case at issue. As one runs into irreconcilable conceptual difficulties in breaking down the formation of a particular customary rule into its components (specific acts), the summative technique provides considerable relief. Thus, an observer need not qualify the various, particular acts or other manifestations as constitutive or declaratory, mature or premature, simultaneous or not, fitting into the practice at issue or not, or legal or illegal under the existing legal rules. A conclusion is merely drawn as to whether a state, all in all, has accepted as law the general practice or not, whether the practice of states, all in all, is sufficiently consistent and general or not, or whether the particular customary rule exists irrespective of the circumstance of when and how it came into being. Under the veil of generalization, the character of particular acts or manifestations remains hidden.99 In considering the existence of a particular customary rule, an observer (an international court) is practically compelled to mainly employ a summative approach, for which I see three main reasons. First, there is a serious epistemic deficit surrounding the formation

99 Of course, the summative approach paves the way to wide judicial discretion, Rousseau, 1970, p. 325, or might even be arbitrary and fictitious in nature, see Manin, 1979, p. 23, which discretion prompted Kelsen to contend that opinio juris is only a mask of judicial law-making, as quoted by Stern, 2001, p. 101. This discretion has at least five aspects. A court will have a choice in (i) selecting the pieces of evidence that will belong to the range of evidence to be evaluated; (ii) interpreting either some of the pieces or the range of evidence; (iii) determining the content of the belief (and rule) that is justified (confirmed) by the selected evidence; (iv) determining the manner of how the selected evidence are able to justify the belief (and rule); (v) determining the degree to which the range of evidence justifies the belief (and rule). See e.g. P. Horwich, Probability and Evidence, CUP, Cambridge, 1982, pp. 37-38.

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and justification of a customary rule: one can identify a great many possibly relevant facts and still not be in possession of sufficient information and common, applicable standards to know how to qualify them. Second, the concept of general practice in Article 38(1)(b) is summative in nature, and, furthermore, the terms of acceptance are often applied as if it were a summative concept that simply describes a situation when an actor, a group of actors, or a community has come to hold a belief. Third, a summative approach follows from the nature of the justification process relating to belief attribution.100 What are the problems for which this approach provides a practical solution? It seems to aid in bypassing and concealing the complications arising from e.g. (i) the constitutive/declaratory dichotomy, (ii) the possible demand of defining the point in time when a particular customary rule came into being, (iii) the question of whether opinio juris should be simultaneous with the particular manifestations of general practice or not, (iv) the question of whether the differences between the states’ relevant behaviours allow one to discern a sufficiently consistent and general practice, or (v) the question of how a new customary rule can be created in contravention of existing international legal rules.101

12.5.3

Epistemic Deficit and Chronological Paradox

Some of the theories which interpret opinio juris as belief are criticized for implying a paradox, commonly referred to as the ‘chronological paradox’. It has many formulations. The gist of the problem is that in the formation of a new customary norm (in the twilight period) opinio juris as belief presupposes that state actions taken in accordance with an evolving norm are already binding102; that is, opinio juris as belief may necessarily and partly represent false belief in the existence of an emerging (non-existent) norm.

100 The standard method of evidence-based justification of belief attribution postulates the assessment of the whole of available evidence and thus implies a predominantly summative deliberation and evaluation. For the principle of total evidence, namely that one has to use all the evidence at one’s disposal, see M.C. Amoretti and N. Vassallo, Knowledge, Language, and Interpretation: On the Philosophy of Donald Davidson, Ontos Verlag, Frankfurt, 2008, p. 127; E. Sober, Evidence and Evolution, CUP, Cambridge, 2008, especially pp. 4143. The weak form of the principle is that using more of the evidence is better than using less, ibid., p. 42. 101 Scholars differ in whether the specific actions that constitute usage should be legal to become customary law, Elias and Lim, 1998, pp. 4-5. In practice, this aspect is more or less irrelevant for at least two reasons. First, a state action, allegedly contrary to a customary norm, can be interpreted as adducing proof for its modification by creating exceptions or new conditions for its application, see Nicaragua case, supra, at p. 109, Para. 207. New law often arises from practice, thus providing a peculiar or original interpretation of vague, indeterminate legal rules, R.B. Baker, ‘Customary International Law in the 21st Century: Old Challenges and New Debates’, 21 EJIL (2010), p. 185. Second, the collision of emerging and existing norms does not come out in result-oriented summative evaluation, where the observer simply takes cognizance of the fact that the customary norms have changed due to a change of relevant beliefs, ibid. 102 E.g. Elias and Lim, 1998, p. 4; Walden, 1978, p. 97; D’Amato, 1971, pp. 66-68, 73; Lefkowitz, 2008, pp. 129130; J. Tasioulas, ‘Customary International Law and the Quest for Global Justice’, in A. Perreau-Saussine and J.B. Murphy (Eds.), The Nature of Customary Law, CUP, Cambridge, 2007, p. 320.

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Thus, it is false (individual) beliefs that make this paradox.103 However, an approach which locates customary norms in collective beliefs is not bothered by false beliefs. In this respect, I believe that Gény was correct in pointing out that false beliefs are necessary for the establishment of (domestic) customary law.104 As has already been explained, a false normative belief may contribute to its own justification by producing further, similar firstorder and second-order beliefs and possibly reasons for action among other members of the community. All this is made possible by a characteristic of normative beliefs, namely, that their truth is contingent upon what other subjects believe about the proposition these beliefs comprise (self-fulfilling false beliefs). In this context, it does not count as a paradox for agents in the international community to hold false beliefs in relation to the existence of a customary norm. It must be recalled that the falsity or truth of an individual normative belief, concerning the existence of a customary norm, held in the twilight period of formation of this norm is not evident. What makes such a belief true or false is a subsequent, retrospective evaluation made in the justificatory process. It will depend on the failure or success of an ex post facto (confirmatory) justification, whether an individual belief that was held (and manifested) at a definite point in time was true or false. A standard objection to this approach is that it is unacceptable to establish, at least partly, the formation of customary norms on false beliefs. However, false beliefs are not serious mistakes or defects in the process of justification; they only signify the uncertainties of belief attribution and such views which have temporarily (or definitely) been discarded. In legal discourse, the positions on various issues differ as a matter of course. False beliefs are also supported by evidence and they may rest on a rational foundation, but their justification has failed for some reason. Holding false beliefs in the twilight interval during the formation of a customary norm merely means that the arguments or reasons for the proposition that the norm is justifiably attributed to the community have not been authoritatively approved or could not prevail at a particular stage of the justificatory pro103 Mendelson’s critique of belief-based theories centres on the possibility of false beliefs, Mendelson 1998, pp. 280-281. Tasioulas denies that the presence of false beliefs makes this situation paradoxical, Tasioulas, 2007, p. 320. 104 As quoted by M. Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law, CUP, Cambridge 1999, p. 131. Other attempts that intended to overcome the paradox by excluding the falsity of beliefs have succeeded in eliminating the beliefs themselves taken in a proper sense. The desire-based theories redefine opinio juris as something like desire by which the existence of a legal rule is sought, see Lepard, 2010, pp. 8 and 97-98; Walden, 1978, p. 97; Mendelson, 1998, p. 281. The other main strand (acceptance/will-based theories) has also deprived opinio juris of its epistemic aspect and identified it with acceptance or will of the states, thereby substituting opinio juris as belief for opinio juris as acceptance, Stern 2001, pp. 97-98. Other theories either exclude opinio juris from the creation of customary international law and assume it plays a role in distinguishing existent customary norms (declaratory theories), e.g. ILA Report 2000, pp. 32-34, or split up the functions of opinio juris and attribute different roles to it in the formation and in the upholding of a customary norm (divisibility theories), Tasioulas, 2007, pp. 320-324; Lepard, 2010, p. 98; Elias and Lim 1998, pp. 26-27.

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12.6

Concluding Remarks

Stern correctly observes that international custom lies at the heart of international law.106 Understanding customary international law is indispensable for a better understanding of international law itself. However, the ways international law is viewed in everyday legal discourse are basically determined by objectivist ideas that stem from the handling of jus scriptum, written law (treaty law). Legal norms ‘exist’ somewhere out there (e.g. in treaty texts) and they are taken as given objects of logical operations, which can then be interpreted and applied. This simplified conception might work in the case of written law, where legal texts represent a kind of more or less definite and objective factor. However, it is not suitable to explain customary law because here general practice denotes neither definite nor objective material reality. Therefore, new grounds are required to explain this part of international law, which could also be used to apply to written law. The core of the interpretive framework I recommend is that customary legal rules form part of an intersubjective reality. They are collective beliefs, which do not ‘exist’ in a traditional sense, but are attributed to a community, in our case to the international community. Customary rules as beliefs ‘exist’ by justified attribution. This attribution occurs in the justificatory process, in which the rules are defined by the community. As the formation of customary rules is an extra-legal, non-transparent process, their justification is necessarily retrospective in nature. After having been justifiably attributed to the community, the life of a customary norm is not simply interpretation and application, but constant reconstruction by agents who attempt to confirm, or restrict the scope of, the previous justification in the miscellaneous circumstances that vary case by case.107 Such a framework seems to be appropriate to explain many of the difficulties surrounding customary international law.108 However, exploring the characteristics of the justificatory process with 105 In contrast to the majority in the Arrest Warrant case, Judge van den Wyngaert took the view that a customary rule that protects Ministers of Foreign Affairs suspected of crimes against humanity or war crimes does not exist (Arrest Warrant of 1 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, 2002 ICJ Rep. 3, at p. 185, or Judge Al-Khasawneh thought that international customary law allows an exception to their immunity in the case at issue (ibid., at p. 98). The beliefs evidenced by these conclusions are false as matters presently stand, but why would these beliefs and their manifestations (dissenting opinions) be dysfunctional or a mistake or a paradox in a legal discourse? This is the case with false beliefs that are manifested by those who represent a state or other international agents. 106 Stern, 2001, p. 89. 107 Ross, 1947, pp. 80-82. 108 See the excellent analyses offered by Alvarez-Jimenez, 2011, pp. 689-707 or Elias and Lim, 1998, pp. 35-84.

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empirical research on international practice and a strict reading of international instruments is a great task for the future. Accomplishing this may prevent customary law from merely being ‘a matter of taste.’109

109 Kelly, 2000, p. 451.

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Jurisdiction v. State Immunity in the 21st Century

László Burián*

13.1

Introduction

Can a sovereign state be sued in a foreign court for severe violations of international ius cogens in armed conflicts? The tort liability of states, which is a sensitive issue related to the immunity of sovereign states, is problematic from several aspects. This area is not clearly resolved in Hungarian civil law1 and the situation is similar in private international law as well. In the middle of the last century states enjoyed immunity even regarding their jure gestionis acts. The tension arising out of this arrangement is clearly expressed by the opinion of Georg Dahm, a professor in Heidelberg, the author of a comprehensive international law textbook first published in Germany after the World War II: Par in parem non habet jurisdictionem. No state can have jurisdiction over another state. Accordingly, sovereign states and their representatives can claim immunity before the courts and authorities of a foreign country, no proceedings may be instituted against them without their consent and no force can be used against them in such proceedings. The consequence of this rule is that most of the cases law cannot be implemented against states. Frequently occurs, that national sovereignty and the effort to maintain friendly relations among states, which are political considerations, prevail not only over local interests but also the interests of justice. This is the challenge immunity poses to legal policy. This challenge becomes more and more serious as the state loses its irrationality it becomes more pragmatic and submits itself to law and domestic jurisdiction.2 * 1 2

Head of Department, Péter Pázmány Catholic University, Faculty of Law. E-mail: [email protected]. See, A. Menyhárd, Az állam kártérítési felelőssége és az állami immunitás, in T. Nochta, T. Fabó, M. Márton (Eds.), Ünnepi tanulmányok Kecskés László professzor 60. születésnapja tiszteletére, Pécs, 2013, pp. 389-904. Original text: ‘Kein Staat sitzt über einen anderen Staat zu Gericht. Daher genieβen die Staaten und ihre Repräsentanten in Verfahren vor den Behörden und Gerichten des Auslandes Immunität, dürfen sie nicht gegen ihren Willen in Verfahren verwickelt und darf namentlich kein Zwang gegen sie ausgeübt werden. Das hat zur Folge, dass Recht sich gegenüber den Staaten oft nicht durchsetzen kann. So werden nicht nur die örtlichen Interessen, sondern auch die Bedürfnisse der Rechtspflege der Rücksicht auf die staatliche Souveränität und dem Wunsch nach der Erhaltung guter Beziehungen zwischen den Staaten, also politischen Gesichtspunkten, untergeordnet. Darin liegt die Rechtspolitische Problematik der Immunität. Sie muss umso lebhafter empfunden

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The privileged position of the state in private law matters only diminished gradually, still existent in the 80s of the previous century. The opinion of László Kecskés well illustrates the situation at the time: The question of liability related to the acts of the state is still not efficiently handled today. In many cases, the state for example cannot be held accountable for losses caused due to its immunity. These legal arrangements are not yet handled in a fully adequate manner.3 This issue has not been completely resolved yet despite the differentiation of state activities between acts of jure imperii and jure gestionis, which in principle made it possible to separate the public acts and the commercial activities of states. The reason for this is that [I]t is often not easy to distinguish with sufficient certainty the public acts from the commercial activities of the state and it is becoming increasingly hard also in private international law to separate acts of jure imperii and acts of jure gestionis.4

13.2

State Immunity in Hungarian Private International Law

The principles of functional, restrictive state immunity were elaborated by the middle of the 20th century, but these principles were implemented not in the actual laws of the various countries at the same time and did not follow the same pattern. For various reasons Hungarian jurisprudence completely ignored the increased importance of functional immunity for a long time after the World War II.5 Although Ferenc Mádl had repeatedly pointed out the unacceptability of this rigid position in several publications since the beginning of the 70s6 and he submitted a detailed argumentation in the private international law codification process about the need to change the rules of absolute immunity as outlined in draft legis-

3 4 5

6

werden, je mehr der Staat seinen irrationalen Nimbus verliert, sich versachlicht und rationalisiert und je mehr er sich im inländischen Bereich dem Recht und der normalen Gerichtsbarkeit unterwirft.’ G. Dahm, Völkerrecht Vol. I., Stuttgart, Kohlhammer Verlag, 1958. Cited by B. Fassbender, Neue deutsche Rechtsprechung zu den Fragen der Staaten- und der diplomatischen Immunität, 2006 (March) IPRax, pp 134-135. L. Burián et al., Magyar Nemzetközi Kollíziós Magánjog, 3rd edn, Logod Bt, Budapest, 2006, section 567. Burián et al., section 584. Mádl wrote in 1974: ‘Hungarian legal literature… does not categorize immunity into absolute and relative or restricted forms, only absolute immunity is recognised. Authors on this subject matter point out that states are entitled to immunity in all their acts.’ F. Mádl, Állam a gazdaságban és az immunitás problémái, különös tekintettel a gazdasági integrációra, Jogtudományi Közlöny (1974), p. 265. See, F. Mádl, Újabb szakaszban egy korszerű magyar nemzetközi magánjogi kódexért, Jogtudományi Közlöny (1978), pp. 639-655. To the specific issue pp. 650-652.

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lation, the regulations in the enacted Law Decree No. 13 of 1979 (hereinafter ‘the Code’) hardly changed at all compared to the draft. Mádl, however, did not consider this as a complete failure of his efforts in view of the political realities of those times. In a legal textbook co-authored with Lajos Vékás he pointed out that it is in itself a step in the right direction to have written regulations in the Code on this issue.7 The Code only made a cautious step towards functional immunity and was mostly characterised by absolute immunity. Only Section 72 of the Code on the recognition of decisions by a foreign forum in matters affecting the Hungarian state, could be interpreted as a trace of functional immunity. Mádl pointed out: ‘[T]his section of the Code to some extent recommends a reciprocal practice of mutual immunity.’8 This approach was already outdated when the Code took effect and it became even more out-of-date by the time the political system changed. Yet, it took quite some time before changes were implemented through the Act No. CX. 2000, taking effect on May 1 2001 and even then only the provisions on jurisdiction were amended. As far as the applicable law is concerned, the absolute immunity rule, as stipulated by section 17 (1) of the Code, is still operational today despite the fact that nothing justifies the privileged position of the Hungarian state compared to other persons when it comes to applicable law in Hungarian courts in international civil law arrangements. I consider this provision of the Code not only outdated but superfluous already when originally enacted.9 This issue could have been easily resolved by simply removing section 17. The jurisdiction provisions of the Code use the principle of absolute immunity as a starting point when as a general rule exclusive Hungarian jurisdiction is stipulated for procedures against the Hungarian state or the institutions of the state, while domestic jurisdiction is excluded in proceedings against foreign states or the institutions of such foreign states. The exceptions to excluded jurisdiction, however, actually shift the approach of absolute immunity to functional immunity, because they allow foreign courts proceeding in all private law matters where the state acts jure gestionis as a party to a private law arrangement. It may have been better to regulate these exceptions directly in the section pertaining to exclusive jurisdiction and not by reference to the exceptions to excluded jurisdiction, but after all these provisions are in accordance with the tendencies of international agreements on state immunity, also followed by the legislation of many countries. Although the structure of these provisions is somewhat complicated, the results are nevertheless appropriate. It would not be reassuring to have a regime where the existence or

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F. Mádl and L. Vékás, Nemzetközi Magánjog és Nemzetközi Gazdasági Kapcsolatok Joga, KJK, Budapest, 1981, p. 145. Mádl and Vékás, 1981, p. 148. Mádl pointed out already in 1978 that it was not necessary to have conflict-of-law rules for the law applicable to legal matters involving the state and recommended not to enact these provisions. See, Mádl, 1978, supra note 6, p. 652.

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lack of jurisdiction in procedures initiated in domestic courts against a foreign state or the institution of a foreign state or in procedures started by a foreign state would depend on whether the judge classifies the acts of the state in the legal arrangement on which the claim is based as jure imperii or jure gestionis. Allowing the court to make such decisions would lead to a lack of certainty of law which is intolerable in jurisdictional matters. There is only one among the exceptions which may potentially lead to establishing jurisdiction over the jure imperii acts of a foreign state. Under Section 62/E c) of the Code, the Hungarian court or authority will have jurisdiction over a foreign state or the institution of the foreign state if the subject matter of the proceeding is a claim against a foreign state or the institution of a foreign state for personal injury or property damage if the event causing the loss occurred within the country and the person suffering the loss resided in the country at the time of the event.10 As there is no relevant judicial practice in this regard, we can only turn to the travaux preparatoires of the draft legislation to come to the conclusion that it was not the objective of this regulation to extend Hungarian jurisdiction to tort cases for injuries caused and occurring in Hungary by jure imperii acts of foreign states.11 However, we cannot rule out such an interpretation in international agreements about state immunity in view of the rules on tort liability of states.12 10 This exception is different from the territorial tort exception regulated in international agreements and national acts on immunity in the sense that it does not require the tortfeasor be present in the country at the time of the tort. 11 During the preparation phase of Act No. CX. 2000 amending jurisdictional provisions, the preparatory material drafted for the proposed legislation stated that the objective of changing the rules of exclusive and excluded jurisdiction related to state immunity was to introduce the concept of relative immunity, in line with the main tendency in international legal developments. According to the authors of the preparatory materials: ‘[T]his will make it possible to sue a foreign state or its institutions in a Hungarian court when the foreign state acts not as a sovereign in its public capacity but as party to a private law arrangement.’ The preparatory material also mentioned that states have autonomy in how they chose to regulate jurisdictional issues but restrictions and limitations set by international law must be observed. It points out as an example that ‘international law does provide certain immunity to states, its public institutions, certain public figures and diplomatic representatives acting abroad from the jurisdiction of the foreign state and prohibits that the legal acts and procedural steps of the institutions of the states should be re-considered by a court or another authority of another state.’ When explaining the grounds for the immunity related provisions of the draft, the materials also made some reference to the fact that ‘it is about fundamentally private law arrangements, also indentified by the European State Immunity Agreement as such, and which is classified by the national law (statutes or judicial case law) of countries supporting the idea of relative immunity as acta jure gestionis transactions.’ See, O. Brávácz and T. Szőcs, A joghatóságra és a külföldi határozatok elismerésére és végrehajtására vonatkozó szabályozás módosításának alapvonalai (manuscript), Budapest, 2000. 12 European Convention on State Immunity, 1972; 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property. 8 European states have so far become party to the European Convention on State Immunity. It took effect on June 11 1976 following its ratification by three countries. The UN Convention has been signed by twenty-eight countries until now and thirteen of those ratified it. Thirty ratifications are needed for the Convention to take effect. Hungary has not become party to either of these agreements. Both agreements treat tort cases as an exception to immunity. The first Convention formulates this exception in Art. 12, while the second Convention does so in Art. 11. Although the regulations in the two documents are not identical, it is a common feature in both that the signatory state cannot rely on immunity from the jurisdiction of another state in a proceeding where the subject matter of the case is

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Jurisdiction v. State Immunity in the 21st Century

Tort Liability of States at the Beginning of the 21st Century

Although the aspects by which the jure imperii and jure gestionis acts of a state can be distinguished have crystallised by now, it is still relevant to answer the question under what restrictions can a state rely on immunity in tort cases where the state is the tortfeasor. The debate on the international level is no longer about the immunity of states in tort cases due to their jure gestionis, private law arrangements and acts, but much rather about their tort liability for losses specifically caused by jure imperii acts, where they can rely on state immunity. Multilateral international agreements on immunity and the laws in a number of countries stipulate that a state cannot rely on immunity if the case is related to tort liability for personal injury or property damage, assuming that the event causing the loss occurred within the country of the forum and the person suffering the loss resided in that country at the time of the event.13 However, neither international agreements nor the majority of national acts on immunity extend the possibility of tort liability to cases when the loss occurred due to war activities of a state in the territory of the forum state. It has nevertheless become debated since the middle of the 1990s whether under customary international law exceptions to jurisdictional immunity should extend to tort cases in severe violation of international law and human rights in armed conflicts. This question has become more critical in procedures initiated against the Federal Republic of Germany by citizens of countries occupied by the Wehrmacht in World War II, seeking damages for losses they or their relatives suffered due to severe crimes committed against them.

13.2.2

The Background to the Procedures Filed against the Federal Republic of Germany

The peace treaties after World War II did not adequately and fully address the question of damages payable for war crimes and crimes against humanity committed against the peoples of countries occupied during the war. The Federal Republic of Germany passed legislation in 1953 on the compensation of victims. The scope of the act however only covered those who were domiciled in West Germany or West Berlin before December 31, 1952 and who were considered to be victims by the act and their descendants. Although the 1965 amendment of this act extended the scope of possible compensation to certain groups of victims of non-German nationality, a great number of foreign citizens could still not receive compensation. This issue was left unresolved by both the bilateral agreements indemnification for personal injury or property damage, assuming that the injury or damage occurred in the territory of the forum country and the tortfeasor stayed in the country at the time of the tort. 13 Reliance on immunity is disallowed in such cases by the national laws on state immunity of the United States (Act of 1976), the United Kingdom (1978), the Republic of South Africa (1981), Canada (1985), Australia (1985), Singapore (1985), Argentina (1995), Israel (2008) and Japan (2009).

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between the Federal Republic of Germany and the countries involved and the compensation treaties concluded thereafter or the re-unification of Germany in 1990. As a consequence, the victims and their descendants attempted to file individual tort claims for damages beginning with the 90s.

13.2.3

Proceedings Initiated by Greek Citizens

The first indemnification claim was filed by 257 Greek citizens for mental damage suffered in the massacre committed by Waffen SS troops in the village of Distomo in June 1944 (the Distomo case). The district court of Livadia in its first instance judgement decided that Germany could not rely on immunity despite the fact that the litigated acts had a jure imperii nature because of the violation of jus cogens rules of international law. The court rendered a judgement obligating the defendant in absentia to pay damages of approximately € 28 million and also to reimburse legal expenses. The judgement was upheld by the second instance court, the Areios Pagos, the highest court in Greece.14 However, the judgement was not enforced in Greece since the Greek Minister of Justice declined to authorise it as required by section 923 of the Greek Civil Procedures Act for the enforcement of court decisions against foreign states. The claimants filed a complaint against Greece and Germany before the European Court of Human Rights for rejection of enforcement. ECHR dismissed the case referring to, among others, state immunity.15 As the claimants were also unsuccessful in proceedings initiated in German courts for the enforcement of the Greek judgement,16 they initiated a procedure in Italy. The Court of Appeal of Florence decided in May 2005 that the decision of the Aerios Pagos ordering the Federal Republic of Germany to reimburse legal expenses of the judicial proceedings was enforceable. The Italian Court of Cassation (Corte Suprema di Cassazione) upheld the decision in May 2008.17 In a separate procedure, referred to as the Margellos case,18 initiated by the descendants of victims who died in 1944 in a bloodshed committed in Lidoriki, the special 14 Prefectura of Voiotia v. Federal Republic of Germany, No. 11/2000, ILR, Vol. 129, p. 513. S. Hobe, ‘Durchbrechung der Staatenimmunität bei schweren Menschenrechtsverletzungen – NS Delikte vor dem Aeropag’, IPRax (2001), pp. 368-372. 15 Kalogeropoulou and Others v. Greece and Germany, No. 59021/00, ECHR 2002-X, p. 417. K. Bartsch-Eberling, ‘Jus Cogens v. State Immunity Round Two: The Decision of the European Court of Human Rights in the Kalogeropoulou et al. v. Greece and Germany Decision, 2002, www.germanlawjournal.com/article.php?id=271 (visited on January 11 2013). 16 The German Constitutional Court did not find the plaintiffs’ claim jusitified by international or German law. For a short summary of the judgement see, J. Stemplewitz, ‘Report Bundesgerichtshof in Zivilsachen 2003/2004’, in R.A. Miller and P. Zumbansen (Eds.), Annual of German and European Law Vol. II/III, Berghahn books, 2004, pp. 364-366. 17 See M. Stürner, ‘Staatenimmunität bei Entschädigungsklagen wegen Kriegsverbrechen’, IPRax (2011), pp. 600-603. 18 Greek Special Supreme Court, Federal Republic of Germany v. Miltiadis Margellos, Case 6/17-9-2002.

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court of eleven members called Anotato Eidikio Dikastirio, which, in accordance with Article 100(1)f of the Constitution of Greece has jurisdiction in relation to the settlement of controversies regarding the determination of generally recognized rules of international law, decided in September 2002 with a majority of 6 to 5 that the Federal Republic of Germany could not be sued as it was entitled to state immunity, and proceedings related to losses caused in armed conflicts are no exception to this rule19

13.2.4

Proceedings Initiated by Italian Citizens

After occupying most of Italy in the autumn of 1943, Germans captured approximately 600 thousand Italian soldiers and deported them to Germany where they were held in forced labour camps, and they were denied the status of prisoner of war. In Italy, tens of thousands of resistance fighters and a similar number of civilians became victims to the various cleansing operations. Luigi Ferrini, one of those who had been deported, filed an indemnification claim against Germany. The claim was dismissed by both the Court of Arezzo as well as the Florence Court of Appeal on the grounds that Italy had no jurisdiction over the defendant. The Court of Cassation in its third instance decision, however, held in its judgement in November 2003 and March 2004 that Germany could not rely on immunity because immunity does not apply to those jure imperii acts which constitute a severe violation of jus cogens norms of international law.20 The Florence Court of Appeal decided in its repeated procedure that the defendant should pay damages and reimburse case-related legal fees. The judgement stated that jurisdictional immunity is not absolute and does not cover severe acts in violation of international law invoked in the case. Two new proceedings were launched in April 2004 with a factual basis similar to that of the Ferrini case. Giovanni Mantelli and 11 other claimants initiated the first case in the Court of Turin, and Liberato Maietta filed the second case in the Court of Sciacca.21 The Federal Republic of Germany filed an interlocutory appeal requesting a declaration of lack of jurisdiction. The Italian Court of Cassation confirmed in both cases in its decision of May 2008 that Italian courts had jurisdiction over the claims.22 50 similar claims for damages were pending before courts at that time. 19 Bartsch-Eberling, 2002, pp. 481-482. 20 P. De Sena and F. De Vittor, ‘State Immunity and Human Rights: The Italian Supreme Court’s Decision on the Ferrini Case’, 16(1) The European Journal of International Law (2005). 21 M. Potesta, ‘State Immunity and Ius Cogens Violations The Alien Tort Statute against the Backdrop of the Latest Developments in the ‘Law of Nations’, www.boalt.org/bjil/documents/Potesta_FINAL.pdf (visited on January 12 2013). 22 The reasons provided for the jurisdiction decision of the Court of Cassation in the Ferrini case was confirmed in the criminal procedure against Max Josef Milde, the ex-member of the Hermann Göring SS Division, in which the Military Court of Rome sentenced the defendant in absentia for life imprisonment and ordered

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13.2.5

Poland: The Natoniewski Case

In October 2007 Winicjusz Natoniewski filed an indemnification claim in the district court of Gdańsk. At the age of 6 Natoniewski suffered extensive burning injuries when SS troops burned down his village of Szczecyn in East Poland23 in a cleansing operation. Male adults were killed, women and children were deported. The claimant requested that the court order the Federal Republic of Germany to pay damages of one million Polish Zloty. Unlike in the proceedings before Italian courts, both the first instance as well as the second instance court decided following an appeal that the case is inadmissible due to the immunity of the defendant. Citing the decision of the European Court of Justice in the Lechouritou case,24 the courts declared in their judgement their lack of jurisdiction based on the Brussels I Regulation, as the case could not be considered to have a civil or commercial nature. The judgements did not delve into the examination of whether Polish civil procedural rules would allow the declaration of jurisdiction.25 The Supreme Court of Poland (Sąd Najwyższy) in its decision of 29 October 2010 upheld the decisions of the first and second instance courts to declare lack of jurisdiction on the grounds of immunity.26 The Supreme Court also considered in its judgement if norms of customary international law had developed based on which reliance on immunity would be impermissible in such cases. While

23

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him jointly with the Federal Republic of Germany to pay damages. See, A. Ciampi, ‘The Italian Court of Cassation Asserts Civil Jurisdiction over Germany in a Criminal Case relating to the World War II – The Civitella Case’, 7(3) Journal of International Criminal Justice (2009), pp. 597-695. This is not identical with the town of Szczecin (in German Stettin) at the river Oder. Szczecyn was a village situated west of Zamosć (re-named as Himmlerstadt by the Germans) in the territory of the Polish General Governorate (which today belongs to the Lublin voivodeship). It was fully demolished together with five other villages by German and Ukrainian SS troops. The objective of the Germans was to establish a so-called ‘Ostlandstützpunkt’ in this area by ethnically cleansing and deporting Polish population and the settlement of German nationals in order to establish a link to the future East German zones. Horst Köhler, the later president of Germany was among those German nationals, who – along with his parents – was re-settled in 1943 from Bessarabia to what is today Skeirbieszów (called Heidenstein in German at that time). Judgement of 15 February 2007 in Case 292/05, Erini Lechouritou and others v. Federal Republic of Germany, [2007] ECR at p. 1540. The basis for the primary proceeding was the massacre by the soldiers of the German army in Kalavrita in December 1943, causing 676 casualties. According to Section 1103 subsection 3 of the Polish Civil Procedure Act, the court has territorial jurisdiction over tort cases if the tort was committed in its territory. As per Section 45 of the Act, it is the Supreme Court who decides in a closed session in domestic jurisdiction issues if no domestic court’s jurisdiction can be otherwise established. In a case resolved in 2007 (AZ:I Co 29/07) the Supreme Court decided that the Warsaw Military Court had jurisdiction in a proceeding initiated against the Federal Republic of Germany for damages for a medical experiment performed on the claimant’s father during the war. Sygn. akt IV CSK465/09. Criticised by R. Nowosielski, ‘State Immunity and the Right to Access to Court the Natoniewski Case before the Polish Courts’, Polish Yearbook of International Law (2010), pp. 263-276. http://ssrn.com/abstract=2173035 (visited on January 12 2013), see also, Stürner, supra note 17, p. 601, and K. Majchrzak, ‘Deutsche Verbrechen gegen die Menschlichkeit vor polnischen Gerichten – Aufweichung der Staatenimmunität durch zivilrechtliche Klagen?’, www.rav.de/publikationen/infobriefe/infobrief-1042010/deutsche-verbrechen-gegen-die-menschlichkeit-vor-polnischen-gerichten/ (visited on January 16 2013).

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emphasising the utmost importance of respect for human rights, it also stated that the effective implementation of human rights and observing the immunity of states are not mutually exclusive objectives and that immunity does not unduly restrict the right of access to court.

13.2.6

Views on the Extent of Immunity in Legal Literature

In view of the conflicting judgements by the Greek, Italian and Polish courts on jurisdiction issues, it is not surprising at all that the arguments for and against the existence of immunity in relation to severe violations of international law in armed conflicts were not only to be heard in court rooms but a vivid scientific discussion has developed in the legal literature as well. The German position represented in litigation procedures and the majority opinion in scholarly commentary is that not even severe violations of human rights and the norms of jus cogens deprive a state of its ability to rely on immunity.27 State immunity from jurisdiction guarantees that traditional dispute settlement forms based on international law take precedence over civil law dispute resolution. This principle has remained valid even though the views on state immunity changed after the middle of the 20th century. Within the framework of opinions emphasizing the coordinating role of international law, the approach of co-operative international law with a relative stance on state immunity has taken over the place of the original approach of absolute sovereignty and immunity. In this approach, a state can be held accountable in a foreign forum for jure gestionis acts but jure imperii acts continue to enjoy immunity from jurisdiction. According to the German position, no norm has evolved (as of yet) in (customary) international law according to which a state cannot rely on immunity in cases when individuals or their descendants file claims in a regular foreign court for severe violations of human rights committed abroad by individuals whose acts are considered to be state acts.28 The basis of this position is that although international agreements on immunity recognize the exception to immunity in tort cases, the scope of this exception does not extend to activities in armed conflicts. In addition, they also refer to the fact that the laws and judicial practices of individual countries cannot be interpreted as extending jurisdiction to war crimes, not even in the United States, where state immunity is mostly restricted by laws and relevant court decisions in tort cases for jure imperii acts. Geimer expressed a very clear and strong view when he stated that denying the immunity of a defendant state constitutes a violation of international law, and the state of the forum has international legal responsibility for such violations. The judgement in the Distomo case was never enforced in Greece, so eventually no quantifiable damage occurred that Greece could be held accountable for. 27 This view is held among others by Hobe, supra note 14 and Stürner, supra note 17 with additional citations. 28 This is the opinion of the researcher of the Milan University. Potesta in his study cited supra note 21.

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Nevertheless, the court decision against the Federal Republic of Germany in itself means a violation of international law. Accordingly, Germany has a valid international claim to overturn judgements in violation of its state immunity. Italy also violated international law by declaring the Distomo case judgement to be enforceable and if enforcement would actually occur against the assets of the Federal Republic of Germany not serving jure imperii purposes, this would constitute a further violation of international law.29 The opposing view, which denies reliance on state immunity concerning acts of severe violation of international jus cogens norms and human rights, is also widely represented in scholarly publications.30 The judicial practices of the countries involved, as we have seen above, also follow various patterns. The Areios Pagos and the Anotato Eidikio Dikastirio came to a different decision, the Polish Supreme Court declared a lack of jurisdiction while the Italian Court of Cassation did not find it justified to rely on state immunity.

13.2.7

The Judgement of the International Court of Justice in the Germany v. Italy Case 31

In December 2008, the Federal Republic of Germany initiated proceedings against Italy before the International Court of Justice (hereinafter: the Court) for violation of international law. The starting point of the German memorial was that sovereign immunity is a fundamental principle in international law. Relative immunity and distinction between acta jure imperii and acta jure gestionis are key aspects already today in dealing with jurisdictional immunity. There is no settled practice supported by opinio juris that would create an exception to immunity in case armed forces violate human rights in war.32 Greece intervened in the proceedings.33 The key feature of the Italian argumentation was that state immunity on the one hand and the effective reparation of losses suffered by 29 R. Geimer, ‘Los Desastres de la Guerra und das Brüssel I. System’, IPRax (2008), pp. 225-227. The Florence Appellate Court ordered enforcement on June 12 2006 against a building situated in Menaggio on the west coast of Como Lake, which is owned by the Federal Republic of Germany and used for cultural purposes (Villa Vigoni). A mortgage was registered on the property pursuant to the court order. The appeal filed against the enforcement was rejected by the Court on October 10, 2008. In view of the proceedings before the International Court of Justice, Italian parliament suspended the enforcement of all judgments against Germany until December 31 2011. 30 Bartsch-Eberling, p. 19, with citations of further authors. 31 Jurisdictional immunities of the State (Germany v. Italy: Greece intevening) Judgement of 3 February 2012, www.icj-cij.org/homepage/index.php?lang=en (visited on January 22, 2013). For a general assessment of the judgement, see B. Hess, ‘Staatenimmunität und ius cogens im geltenden Völkerrecht: Der Internationale Gerichtshof zeigt die Grenzen auf’, IPRax (2012), pp. 201-206. 32 International Court of Justice Case Concerning Jurisdictional Immunities of the State (Germany v. Italy) Memorial of the Federal Republic of Germany 12 June of 2009, Paras. 48-56, www.icj-cij.org/docket/files/ 143/16644.pdf (visited on January 21 2013). 33 This request of Greece submitted on January 13 2011 was approved by the Court with a fourteen to one majority decision on July 4 2011, www.icj-cij.org/docket/files/143/16556.pdf (visited on January 22 2013).

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victims on the other, are inseparable, interdependent issues. The victims have not received adequate compensation through international agreements between the countries involved or through compensation laws unilaterally adopted by Germany. The Federal Republic of Germany has systematically refused to provide compensation to the victims who turned to Italian courts with their claims because they had been denied access to court before. Under such circumstances, it was a legitimate decision by the court to set aside immunity.34 The Greek statement interpreted the conflicting decisions of Greek courts and with reference to new tendencies in customary international law it emphasized the unresolved nature of the issue and the importance of the decision.35 The Court decided on 3 February 2012 with a majority12:3 that Germany is entitled to jurisdictional immunity in proceedings before Italian and Greek courts and declared that neither crimes of war committed in the country of the forum nor violation of international jus cogens will constitute an exception to such jurisdictional immunity.

13.2.8

Key Points of the Judgement

Although neither party had a difference of opinion in this regard, the Court underlined that immunity is a norm rooted in customary international law and a fundamental principle of international law. Immunity has a direct relationship with the territorial sovereignty of states and the principle of sovereign equality. It stems from sovereignty that states have jurisdiction over events and persons within their territory. Exceptions to immunity represent exceptions to sovereign equality and the resulting jurisdiction of states (paragraphs 56 and 57). The Court – contrary to the German position – observed that in respect of the application of the law it is not the time of the contended events but the time of the proceedings in Italy that govern the extent of state immunity. By the time the proceedings took place in Italy, it became widespread to distinguish between acta jure gentionis and acta jure imperii. States have limited the extent of immunity in the first category which is also reflected in international agreements on immunity. The acts of German armed forces clearly constituted acta jure imperii, notwithstanding the fact that these acts were unlawful, as recognised also by the Federal Republic of Germany (paragraphs 58, 59 and 60). The Court then considered the argument put forward by Italy which claimed that according to customary international law a state is no longer entitled to immunity in 34 International Court of Justice Case Concerning Jurisdictional Immunities of the State (Germany v. Italy) Counter Memorial of Italy Chapter 2, especially sections II, III and IV, www.icj-cij.org/docket/files/143/ 16652.pdf (visited on January 22 2013). 35 International Court of Justice Jurisdictional immunities of the State (Germany v. Italy: Greece intervening) Written Statement of the Hellenic Republic 3. August 2011, www.icj-cij.org/docket/files/143/16658.pdf (visited on January 22 2013).

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respect of jure imperii acts committed in the forum state which caused death, personal injury or property damage. According to the Court, neither the international agreements on state immunity, nor national legislations on immunity or general judicial practice support the position of Italy. In customary international law jure imperii torts committed in the forum state by the army or other organs of another state in an armed conflict constitute no exception to immunity rules (paragraphs 62-79). After addressing the above issues, the Court continued to consider further arguments which – according to Italy – could justify in the specific case the denial of immunity. These arguments were the following: 1) Those acts which gave rise to the claims severally violated international norms on armed conflicts, constituting war crimes and crimes against humanity. 2) These unlawful acts constituted a violation of jus cogens of international law. 3) As the claimants have been denied all other forms of redress, the exercise of the jurisdiction by Italian courts was the last resort for the claimants to receive compensation for their injuries (paragraph 80). As for the first argument, the Court pointed out that – as it was already stated – the acts constituting the basis for the proceedings undoubtedly meant a severe violation of international law applicable in armed conflicts (or using a current term: international humanitarian law), but jurisdictional immunity blocks proceedings at its commencement, therefore it is impossible to consider the merits of the case including how severe the violations were. If immunity could be denied on the basis that the state presumably committed a serious violation of international law, the entitlement of a state to immunity could be simply negated through a skilful claim. It is, nevertheless, to be considered whether customary international law has developed to a stage whereby a state is no longer entitled to immunity in case of severe violation of humanitarian international law. The Court made reference to its prior statements and confirmed its conclusion that except for the judgements of Greek courts cited in this case there is no judicial practice36 or international rules which would support such an assumption. The Court considered the judgement of the House of Lords in the Pinochet case37 and the reference made to Section 1605A of the United States Foreign Sovereign Immunities Act38 to be irrelevant. The Court repeated its earlier statement 36 The Court made reference – among other cases – to the Natoniewski case (see above). 37 The High Court in its first instance ruling accepted reliance on immunity. The House of Lords, however, decided with a six to one majority in a repeated proceeding on March 24, 1999 that Pinochet cannot claim immunity because international law does not provide such a privilege in case of crimes like torture and genocide even if Pinochet committed such crimes while in office as head of state. For the details assessment of the case, see M. Davies, ‘The Pinochet Case’, University of London Institute of Latin American Studies Research Papers 53, and M. Byers, ‘The Law and Politics of the Pinochet Case’, Duke Journal of Comparative and International Law (2000), pp. 415-441. 38 The first national legislation with rules on exceptions to state immunity in acta jure imperii was the Foreign Sovereign Immunities Act (FSIA) of 1976, more specifically Section 1605 (a). Section 1605 (a) subsection (3) of FSIA allows jurisdiction over a foreign state or state organisation in cases when rights in property were taken in violation of international law. (With regards to this exception and the judicial practice also

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regarding relevant international agreements, specifically discussing the considerations made in preparation of the United Nations Convention with respect to acts causing death or personal injury through the violation of jus cogens human rights which raised the idea of the possible codification of restricted immunity which was however eventually omitted from text of the Convention. The Court further made reference to the fact that the judgements of the European Court of Human Rights39 also came to the conclusion that international law disallows the exclusion of such acts from immunity. Based on these considerations, the Court concluded that under the present state of international law a state cannot be deprived of immunity even in cases where severe violations of human rights occurred in armed conflicts (paragraphs 83-91). Regarding the conflict between the violation of international jus cogens norms and the immunity a state enjoys based on customary international law, and the argument on the necessity to deny immunity in such cases, the Court declared that no such conflict exists. The rules of law of armed conflicts prohibiting the murder of civilians, the use of force against them, and the deportation of civilians and prisoners of war to forced labour on one hand, and the rules of state immunity on the other hand are different matters of law serving different objectives. Jurisdictional immunity has a procedural character. Dismissing civil indemnification claims due to lack of jurisdiction does not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful. This also means that the application of current state immunity rules for acts committed between 1943 and 1945 is not a violation of the prohibition to apply law retrospectively. For the same reason, granting immunity does not amount to recognising the acts in breach of jus cogens to be lawful. As a matter of fact, Germany openly acknowledged

impacting Hungary, see, S. Szabó, State immunity and jurisdiction in American courts cases on expropriated works of art/Állami immunitás és joghatóság a kisajátított műkincsekkel kapcsolatos amerikai perekben, Magyar Jog, 2011, pp. 489-502). Subsection (5) of FSIA 1605 creates a general exception for cases when a foreign state commits some tort in the territory of the US and the damage also occurs in the US. In an amendment of the Act in 1997, this section was expanded with subsection (7), which extends jurisdiction to tort claims against states based on act of torture, extrajudicial killing, aircraft sabotage, hostage taking or the provision of material support for such an act. For the application of this exception (called the terrorism exception in legal literature) it is not required that the tortuous act should have territorial or any other connection with the US, but the tortfeasor needs to have acted within the scope of his office, employment or agency. This amendment, which further restricted immunity, was clearly inspired the 1988 outrage over Lockerbie but it was only applied against countries which the Department of State classified as ‘rouge states’ supporting terrorism. Currently Cuba, Iran, Syria are such states. Iraq, Afghanistan, North Korea, Southern Yemen and Libya were earlier listed as countries supporting terrorism and have been since removed from the list. Subsection (7) of FSIA 1605 (a) was replaced by section 1605 A in 2008. The objective of the new provision was unchanged, but the position of the plaintiffs was strengthened because they can use the specific provision of a federal act as a basis of their claim and they can claim punitive damages by the state supporting terrorism. 39 The Court referred to the decisions Al-adsani v. United Kingdom (No. 35763/97, (www.unhcr.org/refworld/country,,ECHR,,KWT,4562d8cf2,3fe6c7b54,0.html, visited on January 23 2013) and Kalogeropolou and others v. Greece (see footnote 15).

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the unlawfulness of the events covered in the proceedings. Denying immunity cannot be justified by the duty of the state in breach to make reparation, either, since this duty is independent from the rules on how such reparation duties must be met. The practice of the past 100 years for the settlement of armed conflicts between states shows that peace treaties adequately addressed the issue of compensation by payment of a lump sum or by set-offs, therefore it would be hard to conclude that international law requires payment of a full compensation to each victim individually. The Court held that the argument regarding the conflict between the rules on the extent and the application of jurisdictional immunity and the rules of jus cogens is unfounded and disagreed with the idea that the application of any rule not having the character of ius cogens could be denied if it would make the enforcement of a jus cogens rule impossible. The Court cited its own practice and the judgements of some national courts to support this opinion (paragraphs 92-97). The Court also expressed its disagreement with the argument that using state immunity deprives the victims of their last resort to claim compensation and argued that such claims may be settled through international agreements. Italian courts cannot deprive the Federal Republic of Germany of its jurisdictional immunity even if compensation based on international agreements and Germany’s own domestic laws de facto have not compensated the loss of each individual. The Court understood that its judgement obligating Italian courts to respect the immunity of the Federal Republic of Germany may preclude judicial redress for Italian nationals concerned but it believed that the claims of those victim groups that have not been yet compensated can be resolved through negotiations between the two states (paragraphs 98-104). With regards to the German complaint against the enforcement in the Distomo case, which was ordered by Italian courts but suspended by the Italian parliament in view of the proceedings before ICJ, the Court concluded that measures taken40 in the enforcement procedure against the building of Villa Vigoni violated the jurisdictional immunity of Germany (paragraphs 109-120). The Court also declared that Italian courts were in breach of German immunity also by declaring the judgements by Greek courts in the Distomo case to be enforceable (paragraphs 121-133).

13.3

Conclusions

The decision of the Court reached with a convincing majority supported the position of those who argue that – at least as of today – no common exception has been developed in customary international law which would allow to sue a state in the court of another state

40 See supra note 29.

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in a regular procedure seeking compensation for losses caused in the forum state by severe violation of human rights, if the loss occurs due to events in an armed conflict. The conflict between the need in international law to protect state sovereignty and the right of those suffering losses for adequate access to justice and to receive compensation continues to exist. The thoughts of Georg Dahm quoted in the introduction remain valid in the second decade of the 21st century. The legal systems’ need for justice is overridden by efforts to maintain national sovereignty and friendly relations among states, although to a significantly lesser extent compared to the situation half a century ago. Accordingly, we may say that no appropriate resolution for these legal arrangements has been reached as of yet.

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Understanding the Responsibility to Protect: Textual Anomalies and Interpretative Challenges in the 2005 World Summit Outcome

Gábor Sulyok*

14.1

Introduction

The emergence of the responsibility to protect is generally considered a welcome development in international relations. The concept had originally been crafted by the International Commission on Intervention and State Sovereignty to reconceptualize the debate on humanitarian intervention and to marginalize the role of the ancient but controversial doctrine in state practice.1 It was subsequently endorsed by the High-level Panel on Threats, Challenges and Change2 and the United Nations Secretary-General.3 The moment of official recognition came in September 2005, when Heads of State and Government of Members of the United Nations adopted by consensus the General Assembly resolution entitled ‘2005 World Summit Outcome’.4 Paragraphs 138 and 139 of the document spell out the responsibility to protect: 138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and *

1 2

3 4

Head of department, Senior research fellow, Hungarian Academy of Sciences, Centre for Social Sciences, Institute for Legal Studies; Associate professor, Széchenyi István University, Deák Ferenc Faculty of Law and Political Sciences. E-mail: [email protected]. International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect, International Development Research Centre, Ottawa, 2001. A More Secure World: Our Shared Responsibility, Report of the High-level Panel on Threats, Challenges and Change, 2 December 2004, UN Doc. A/59/565, Paras. 201-203. See also The Common African Position on the Proposed Reform of the United Nations: “The Ezulwini Consensus”, 7-8 March 2005, AU Doc. Ext/EX.CL/2 (VII), at 6. In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the SecretaryGeneral, 21 March 2005, UN Doc. A/59/2005, Para. 135, and Annex, Para. 7(b). 2005 World Summit Outcome, GA Res. 60/1, 16 September 2005.

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will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability. 139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.5 The appealing new concept rapidly became an established ideal and basis of reference for a wide range of actors in the international plane. Still, the apparent success story is slightly overshadowed, inter alia, by various theoretical issues that partly originate from the wording of the World Summit Outcome. The present study seeks to contribute to a better understanding of the responsibility to protect by identifying and examining textual anomalies and interpretative challenges in the description of the concept.6 The investigation focuses on the quoted paragraphs of the World Summit Outcome, utilizes the conventional tools of interpretation, and is structured along the commonly applied division of the responsibility to protect.

5 6

Id., Paras. 138-139. These issues had initially been exposed in an earlier paper, but were left unexamined due to thematic constraints. G. Sulyok, ‘Delimitation of Humanitarian Intervention and the Responsibility to Protect: A Conceptual Approach’, in V. Sancin and M. Kovič Dine (Eds.), Responsibility to Protect in Theory and Practice, GV Založba, Ljubljana, 2013, pp. 727-761.

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14.2

Understanding the Responsibility to Protect: Textual Anomalies and Interpretative Challenges in the 2005 World Summit Outcome

Pillar One

From the three equally important, mutually reinforcing, independent and non-sequential pillars of the responsibility to protect, pillar one covers ‘the protection responsibilities of the state’.7 This pillar is described in the first three sentences of paragraph 138 of the World Summit Outcome. Though they seem to convey a message unmistakably clear, these sentences immediately pose at least two major interpretative challenges; both reside in the initial sentence of the paragraph, and both pervade the other two pillars, as well. The first challenge concerns the scope of beneficiaries of pillar one. The text designates ‘populations’ as the recipients of measures taken by states in fulfilment of their primary responsibility to protect. ‘Population’ is a rather problematic term that can be found in the vocabularies of a variety of disciplines, such as biology, sociology or law. In social sciences, it is often regarded as an empirically existing, directly observable entity. However, ‘population’ is more of a theoretical construction, which offers a way to organize social observations by localizing the subjects of investigation in space and time.8 Therefore, the term may have numerous layers of meaning even within the same discipline, and its scope may radically change with the context. These features also affect its usage in international law. Here ‘population’ is habitually associated with an essential conceptual element, a constituent part of ‘state’. For example, the Montevideo Convention on the Rights and Duties of States provides that: The State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other States.9 If ‘population’ is taken as a constituent part of ‘state’, the term must be used in singular, for a state can have one population only.10 This population, along with the territory it

7

Implementing the Responsibility to Protect, Report of the Secretary-General, 12 January 2009, UN Doc. A/63/677, Paras. 11-12. 8 B. Curtis, The Politics of Population: State Formation, Statistics, and the Census of Canada, 1840-1875, University of Toronto Press, Toronto, Buffalo, London, 2002, pp. 24, 26-27. 9 1933 Convention on Rights and Duties of States, 165 LNTS 19, Art. 1. These criteria largely draw on G. Jellinek, Allgemeine Staatslehre, 3. Aufl, Verlag von O. Häring, Berlin, 1914, pp. 394-434. See also M. Ganczer, Állampolgárság és államutódlás (Nationality and State Succession), Dialóg Campus Kiadó, Budapest, Pécs, 2013, p. 9; T.D. Grant, ‘Defining Statehood: The Montevideo Convention and its Discontents’, 37(2) Columbia Journal of Transnational Law (1998-1999), pp. 403-457. 10 ‘[T]he State has one territory only, so it has only one people […]’, H. Kelsen, General Theory of Law and State, Transaction Publishers, New Brunswick, London, 2006, p. 233. It would exceed the limits of this section to provide a detailed delimitation of ‘population’ and ‘people’. Suffice it to note that, depending on the context, the two terms may or may not be synonymous with each other. In the quoted remark, they are interchangeable.

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inhabits, forms the object of sovereignty, and encompasses every individual permanently settled at any given moment in the territory of a state – nationals, foreigners and stateless persons alike. The size of this community and its fluctuations bear no relevance.11 But frequently ‘population’ has a more restricted scope, and stands for a mere fragment of the total inhabitants of a state. Examples are abundant. In a narrow sense, the term may refer to nomadic populations, minority populations, indigenous and tribal populations, populations of occupied territories, and so forth. The World Summit Outcome declares that the bearer of responsibilities under pillar one is ‘[e]ach individual State’. This grammatical structure demands the use of singular, and the entire sentence is formulated accordingly. Such context is bound to draw attention to the plural use of ‘population’. The implication that states have more than one population to protect leaves room for no less than four different interpretations as to the scope of beneficiaries of pillar one. First, one should not automatically dismiss the possibility of a drafting error. Though detailed information on the creation of the World Summit Outcome is hard to obtain, it has become common knowledge that the paragraphs on the responsibility to protect had been fiercely debated, substantially watered-down and finalized in the last minute. It has also been disclosed that the brackets around the text indicating the lack of general consent had simply been removed by the United Nations leadership right before the scheduled start of the summit meeting.12 Under these circumstances the possibility of a drafting error, no matter how unusual, does not look entirely far-fetched. Its likelihood is further strengthened by a discrepancy between the authentic languages: for example, the English and French versions use ‘population’ in plural, but the Russian and Spanish versions use it in singular.13 If the plural use of ‘population’ was indeed unintentional in the relevant languages, particularly in English, the term must be construed as the totality of inhabitants of each individual state. However, if the plural use of ‘population’ was intentional, two alternative interpretations come to mind. The postulate that a state has more than one population gains plausible meaning only if the totality of its inhabitants can be divided in a way that is lawful under both domestic law and international law (e.g. it does not amount to discrimination), and produces subsets that can reasonably be called ‘populations’. This division may rest on geographical or personal factors. Hence it may be argued that the plural use of ‘population’ either refers to the inhabitants of certain administrative or geographical units, or certain 11 J. Crawford, The Creation of States in International Law, 2nd edn, Clarendon Press, Oxford, 2007, p. 52; G. McNicoll, ‘Population Weights in the International Order’, 25(3) Population and Development Review (1999), p. 411. 12 A.J. Bellamy, Responsibility to Protect: The Global Effort to End Mass Atrocities, Polity Press, Cambridge, Malden, 2009, p. 90. 13 Cf. ‘its populations’ (English), ‘ses populations’ (French), ‘svoye nasyelyeniye’ (Russian), ‘su población’ (Spanish).

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groups of persons or communities living in a state. Yet this train of thought is open to criticism on the basis that such a division would be utterly unrealistic in a large number of states, and would be incompatible with the universal aspirations of the responsibility to protect. This brings us to the fourth possible interpretation that subsumes all three previously outlined options. In light of the purposes of the responsibility to protect, it is most likely that the plural use of ‘population’ is meant to tackle the complexity of the international community, and to achieve the highest degree of comprehensiveness. For that reason, ‘populations’ should probably be interpreted in an extremely broad manner so as to embrace every layer of meaning of the term – the totality of inhabitants and its potential subsets. This interpretation facilitates best the fulfilment of the responsibility to protect worldwide. Knowing the permanency inherent in the notion of population, the status of foreign nationals temporarily staying in a state poses a curious dilemma. Unlike their permanently settled counterparts, such foreigners do not belong to the population of the territorial state, but might as well require effective protection against mass atrocities. The state of nationality, being the bearer of the primary responsibility to protect, has limited means at its disposal due to obvious normative constraints. Despite their belonging to another population, are these persons entitled to the same treatment as the population of the territorial state? The only sensible answer is in the affirmative. During their short stay, these persons should enjoy, as appropriate, the protection of not only the state of nationality, but also the territorial state in line with the personal jurisdiction of the former and the territorial jurisdiction of the latter. Though this interpretation admittedly breaches the ordinary meaning of ‘population’, there is hardly any other way to alleviate the tension between the purposes and the wording of the responsibility to protect, and to derive the protection of persons concerned from the text. The second and less problematic interpretative challenge lies in the list of calamities from which the populations need to be protected. Four crimes and violations stand in the centre of the responsibility to protect, that is, genocide, war crimes, ethnic cleansing and crimes against humanity. This catalogue reflects a narrow but deep approach:14 the concept merely envisages the complete elimination of events that are globally condemned, uniformly characterized and reckoned among the gravest forms of mass atrocities. Notwithstanding demands to that effect, the United Nations is reluctant to extend the scope of the concept to cover further perils, such as natural disasters, climate change or diseases,15 for fear that 14 Implementing the Responsibility to Protect, Para. 10(c). 15 For a glimpse into the debate, see L. Arbour, ‘The Responsibility to Protect as a Duty of Care in International Law and Practice’, 34(3) Review of International Studies (2008), p. 458; G. Evans, ‘The Responsibility to Protect in Environmental Emergencies’, 103 Proceedings of the Annual Meeting of the American Society of International Law (2009), pp. 27-32; E.C. Luck, ‘Environmental Emergencies and the Responsibility to Protect, A Bridge Too Far?’, id., pp. 32-38; L.A. Malone, ‘Green Helmets: Eco-Intervention in the TwentyFirst Century’, id., pp. 19-27.

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any deviation from the original approach would undermine its widespread recognition and effectiveness. From the four crimes and violations only genocide, war crimes and crimes against humanity can be considered as established categories of international law.16 Detailed information on their exact nature can readily be obtained from the major instruments that provide for their prevention, punishment and prosecution, and from the decisions of international, mixed or domestic criminal courts and tribunals.17 These sources suggest that the degree of development and clarity the regulation of the three crimes has now attained is more than sufficient to forestall great disturbances in the interpretation of the responsibility to protect. The same does not hold true for ‘ethnic cleansing’. This abhorrent practice or policy has always been part of the history of human conflicts,18 but it does not have an independent standing in international law. The phrase (etničko čišćenje) itself became generally known and applied only in the recent past, during the crisis in the former Yugoslavia, at the end of the 20th century. Though it is exceedingly hard to define, it usually describes violent and systematic measures taken with a view to homogenize the diverse ethnic composition of a given territory by destroying, deporting or expulsing persons belonging to other ethnic communities.19 These measures often involve the destruction of 16 These crimes had already been recognized in the African continent as potential grounds of collective intervention prior to the adoption of the World Summit Outcome. See 2000 Constitutive Act of the African Union, 2158 UNTS 3, Art. 4(h), and 2003 Protocol on Amendments to the Constitutive Act of the African Union, Art. 4. 17 E.g. 1945 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 82 UNTS 279, and 1945 Protocol Rectifying Discrepancy in the Text of the Charter; Charter of the International Military Tribunal for the Far East, Supreme Commander for the Allied Powers, General Order Nos. 1 and 20, 19 January and 26 April 1946; 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277; 1949 Geneva Conventions I-IV, 75 UNTS 31, 85, 135, 287, and 1977 Protocols I-II, 1125 UNTS 3, 609, and 2005 Protocol III, 2404 UNTS 261; Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission, Second Session, 5 June – 29 July 1950, UN Doc. A/1316, at 11; 1968 Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity, 754 UNTS 73; Statute of the International Criminal Tribunal for the Former Yugoslavia, SC Res. 827 (1993), 25 May 1993, as amended; Statute of the International Tribunal for Rwanda, SC Res. 955 (1994), 8 November 1994, as amended; Draft Code of Crimes Against the Peace and Security of Mankind, in Report of the International Law Commission, Forty-eighth Session, 6 May – 26 July 1996, UN Doc. A/51/10, at 14; 1998 Rome Statute of the International Criminal Court, 2187 UNTS 3; UNTAET Reg. No. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, 6 June 2000, UN Doc. UNTAET/REG/2000/15; Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, 10 August 2001, NS/RKM/0801/12, as amended; 2002 Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone (with Statute), 2178 UNTS 137; Law of the Iraqi Higher Criminal Court No. 10, 9 October 2005, 47(4006) Official Gazette of the Republic of Iraq. 18 A. Bell-Fialkoff, ‘A Brief History of Ethnic Cleansing’, 72(3) Foreign Affairs (1993), p. 110. 19 G. Sulyok, A humanitárius intervenció elmélete és gyakorlata (The Theory and Practice of Humanitarian Intervention) Gondolat Kiadó, Budapest, 2004, pp. 272-273. See also R. Geiss, ‘Ethnic Cleansing’, in R. Wolfrum (Ed.), The Max Planck Encyclopedia of Public International Law, Vol. 3, Oxford University Press, Oxford, 2012, pp. 681-684; J. Hagan and T.J. Haugh, Ethnic Cleansing as Euphemism, Metaphor, Criminology,

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habitation, infrastructure and facilities, particularly social, cultural and religious installations, as well. Legally speaking, ethnic cleansing may designate several crimes under international law, which entails the risk of an unwanted extension of the scope of the concept. The Secretary-General, as if striving to prevent such an occurrence, hurriedly stated in his first report on the responsibility to protect that ‘[e]thnic cleansing is not a crime in its own right under international law, but acts of ethnic cleansing may constitute one of the other three crimes’.20 This understanding of ethnic cleansing corresponds to the common international usage of the phrase, and intends to preserve the narrow but deep approach. Whether it will be able to withstand efforts to the contrary remains to be seen. Taking into account its multiple layers of meaning21 and modest normative value,22 it is not entirely clear why ‘ethnic cleansing’ was incorporated into the description of the responsibility to protect. The wording of reports preceding the World Summit Outcome and symbolic/emotional considerations may equally come to mind, but do not alter the fact that the exclusion of the phrase from the list of calamities would hardly compromise the integrity and merits of the concept. Finally, it should be recalled that the interpretative challenges that have been identified in the initial sentence of paragraph 138 are not confined to pillar one. These challenges surface for the first time in the exposition of pillar one, and they have been treated accordingly, but they reside in textual elements that are common to all three pillars. For that reason, they pervade the responsibility to protect completely.

and Law, in L.N. Sadat (Ed.), Forging a Convention for Crimes Against Humanity, Cambridge University Press, Cambridge, 2011, pp. 177-184; D. Petrovic, ‘Ethnic Cleansing – An Attempt at Methodology’, 5(3) European Journal of International Law (1994), pp. 343-352; J. Jackson Preece, ‘Ethnic Cleansing’, in D.P. Forsythe (Ed.), Encyclopedia of Human Rights, Vol. 1, Oxford University Press, Oxford, New York, 2009, pp. 164-165. 20 Implementing the Responsibility to Protect, Para. 3. See also Interim Report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992), 10 February 1993, UN Doc. S/25274, Para. 56; Final Report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992), 27 May 1994, UN Doc. S/1994/674, Para. 129; Responsibility to Protect: State Responsibility and Prevention, Report of the Secretary-General, 9 July 2013, UN Doc. A/67/929 – S/2013/399, Para. 14, note 2. 21 ‘Practically every case prosecuted before the International Tribunal has involved ethnic cleansing, in which particular groups have been specifically targeted […].’ Prosecutor v. Duško Sikirica et al. (‘Keraterm Camp’), Judgment on Defence Motions to Acquit, Case No. IT-95-8-T, T.Ch. III, 3 September 2001, at 35, Para. 89. 22 ‘In fact, in the context of the [Genocide] Convention, the term “ethnic cleansing” has no legal significance of its own.’ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, 2007 ICJ Rep. 43, at 123, Para. 190. (Insert added.)

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14.3

Pillar Two

The second pillar, known as ‘international assistance and capacity-building’, is the most elusive constituent part of the responsibility to protect, and the wording of the World Summit Outcome does little to improve that image. Two sentences of moderate length are devoted to the description of this pillar, both fraught with textual anomalies and structural flaws. Paragraph 138 designates the ‘international community’ as the bearer of responsibilities under pillar two. Unfortunately, the document fails to clarify the content of this fairly obscure phrase, and allows for divergent interpretations in a field of utmost practical importance. In a narrow sense, ‘international community’ typically refers to the totality of states. If greater precision is required, it may be provided with an appendage so as to form ‘international community of States’.23 In a much broader sense, however, the phrase refers to a range of actors, some of whom do not even possess international legal personality. These actors include, inter alia, states, international organizations, non-governmental organizations, transnational corporations, churches, nations, peoples, individuals, mankind, and the media. The nature of the responsibility to protect dictates, and reports of the Secretary-General confirm, that the phrase should be interpreted, with reasonable limitations, relatively broadly to embrace states, universal, regional and sub-regional organizations, and their civil society and private sector partners.24 Selected special subjects of international law, such as the Holy See,25 might as well be added to the list. This undeniably rational and expedient reading, when placed into the context of the document, nevertheless points out an anomaly. The exposition of pillar two continues at the end of paragraph 139 in the following manner: ‘We also intend to commit ourselves […] to helping States build capacity to protect their populations […] and to assisting those which are under stress before crises and conflicts break out.’26 It can only be deemed a structural flaw that this sentence was chosen to be separated from the preceding paragraph and located after the description of pillar three. Expectedly, this flaw is not without consequences. The pronoun ‘we’ makes it clear that the quoted pledge comes from ‘the Heads of State and Government, [who] have gathered at United Nations Headquarters’27 to adopt the World Summit Outcome. Hence there is an obvious discrepancy between paragraphs

23 E.g. 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, Art. 53. 24 Implementing the Responsibility to Protect, Paras. 11(b), 68; Fulfilling Our Collective Responsibility: International Assistance and the Responsibility to Protect, Report of the Secretary-General, 11 July 2014, UN Doc. A/68/947 – S/2014/449, Paras. 20-27. 25 See Pope Benedict XVI, Meeting with the Members of the General Assembly of the United Nations Organization, Address of His Holiness Benedict XVI, in Pope Benedict XVI, Pope Benedict in America: The Full Texts of Papal Talks Given during His Apostolic Visit to the United States, Ignatius Press, San Francisco, 2008, pp. 94-95, 100-101. 26 World Summit Outcome, Para. 139. 27 Id., Para. 1. (Insert added.)

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138 and 139 as regards the bearer of responsibilities under pillar two, and the latter erroneously suggests that the burden of helping states build their capacities and assisting those under stress is exclusively laid on Member States, not on the wider international community. Remarkably, the problems do not cease here. The World Summit Outcome, similarly to pillars one and three, offers very few guidelines for the implementation of pillar two. It merely requires the international community to encourage and help states to fulfil the responsibility to protect. This call is augmented by the cautious pledge of Member States to help and assist states in capacity-building and stressful situations. The Secretary-General, for his part, had originally identified these forms of assistance under pillar two: (a) encouraging States to meet their responsibilities under pillar one (para. 138); (b) helping them to exercise this responsibility (para. 138); (c) helping them to build their capacity to protect (para. 139); and (d) assisting States “under stress before crises and conflicts break out” (para 139).28 These activities were subsequently rearranged into three large groups: encouragement, capacity-building and assisting states to protect their populations (protection assistance).29 The request to the international community to ‘support the United Nations in establishing an early warning capability’30 is noticeably missing from the enumerations.31 The curious omission is all the more surprising in view of that the appeal actually forms the second half of the sentence that introduces pillar two in paragraph 138, and the required behaviour is closely associated with the implementation of that pillar. (The Secretary-General claimed that the desired early warning capability demands the timely flow of information to decision-makers in the organization, the capacity of the Secretariat to assess that information and understand the patters of events, and ready access to the office of the Secretary-General.32) The sentence under deliberation, therefore, is nothing short of bizarre. It addresses the request to support the United Nations to the wider international community, of which the organization also forms part. For calling upon the United Nations to support itself would surely not make sense, the phrase ‘international community’ can hardly cover the

28 Implementing the Responsibility to Protect, Para. 28. 29 Fulfilling Our Collective Responsibility: International Assistance and the Responsibility to Protect, Paras. 28, 70. 30 World Summit Outcome, Para. 138. There exists an apparent nexus between this part and Para. 140: ‘We fully support the mission of the Special Adviser of the Secretary-General on the Prevention of Genocide.’ 31 The recent report of the Secretary-General on pillar two only mentions the support of the United Nations in passing. Fulfilling Our Collective Responsibility: International Assistance and the Responsibility to Protect, Para. 1. 32 Implementing the Responsibility to Protect, Para. 10(d). See also id., Annex; Early Warning, Assessment and the Responsibility to Protect, Report of the Secretary-General, 14 July 2010, UN Doc. A/64/864.

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organization in this particular regard, and as such, it has slightly different scopes in the first and second halves of the sentence.

14.4

Pillar Three

Due to its specific content and sensitive nature, it is arguably pillar three, dubbed ‘timely and decisive response’, which has drawn the most attention, suffered the most wateringdown, and stirred the most controversy among the constituent parts of the responsibility to protect. For all the increased scrutiny, however, the two relatively long and detailed sentences describing this pillar likewise abound with textual anomalies. The bearer of responsibilities under pillar three, similarly to pillar two, is the ‘international community’, but here it is required to act in a more centralized fashion: ‘through the United Nations’. This requirement would normally be expected to reduce the kaleidoscopic variety inherent in the phrase, and to diminish the challenge its interpretation is bound to pose. Nevertheless, a closer examination, taking into account the references in the text to Chapters VI, VII and VIII of the Charter and the relevant reports of the SecretaryGeneral, prove that expectation to be false. The requirement to act ‘through the United Nations’ does not entail that every single measure must be taken by the organization, or must be formally recommended or authorized by the competent principal organ to make it available for the international community. (Numerous measures, particularly under Chapter VI, do not demand recommendation or authorization.) Instead, it entails that the implementation of pillar three must fit into the general normative framework provided by Chapters VI, VII and VIII of the Charter. Therefore, in spite of appearances, the United Nations only plays a primary, not exclusive role under pillar three. The efforts of principal organs and other bodies are supported by a range of actors, such as states, regional and sub-regional organizations, humanitarian agencies, civil society and private sector partners, and individuals.33 Pillar three comprises two sets of measures: diplomatic, humanitarian and other peaceful means and collective action. The former includes, for example, negotiation, monitoring, enquiry, on-site investigation, fact-finding, mediation, good offices, preventive diplomacy, public advocacy, conciliation, arbitration, judicial settlement, international criminal prosecution, and resort to regional or sub-regional organizations.34 The latter includes, for example, the freezing of financial assets, the imposition of travel bans, the 33 Implementing the Responsibility to Protect, Paras. 59, 68; Responsibility to Protect: Timely and Decisive Response, Report of the Secretary-General, 25 July 2012, UN Doc. A/66/874 – S/2012/578, Paras. 38-48. 34 Implementing the Responsibility to Protect, Paras. 51-55; The Role of Regional and Subregional Arrangements in Implementing the Responsibility to Protect, Report of the Secretary-General, 28 June 2011, UN Doc. A/65/877 – S/2011/393, Paras. 30-34, 37; Responsibility to Protect: Timely and Decisive Response, Paras. 21-30.

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suspension of credits, aids and loans, the control of availability of luxury goods, weapons, related materials and high-value commodities, the limitation of diplomatic contact, the application of embargoes, the restriction of scientific and technical co-operation, the deployment of multinational forces for the creation of security zones, the imposition of no-fly zones, and the establishment of a military presence for protection or deterrence.35 Thus collective action is not synonymous with the use of force; military coercion is merely an optional instrument in a large inventory of measures. The World Summit Outcome specifies the threshold of collective action only. It may be employed if peaceful means are inadequate and national authorities are manifestly failing to fulfil the responsibility to protect.36 The insertion of this threshold into the text was a commendable move, but its wording has a minor imperfection. It appears as if though the drafters had been oblivious to the fact that the real difference between diplomatic, humanitarian and other peaceful means and collective action lies in coercion rather than peacefulness, as certain types of collective action are equally peaceful (i.e. non-violent). For that reason, to posit the inadequacy of peaceful means as a prerequisite of collective action is not entirely correct. The most difficult interpretative challenge is perhaps posed by the way the World Summit Outcome defines the normative framework of collective action. The second sentence of paragraph 139 strives to link such action, military and otherwise, to the Security Council (‘through the Security Council’). It also makes clear that the responsibility to protect neither creates a new exception to the prohibition of the threat or use of force (‘in accordance with the Charter’) nor compels the Security Council to automatically authorize collective action, if peaceful means are inadequate and national authorities are manifestly failing to protect their populations (‘on a case-by-case basis’).37 These textual elements 35 Implementing the Responsibility to Protect, Paras. 56-60; The Role of Regional and Subregional Arrangements in Implementing the Responsibility to Protect, Paras. 35-36; Responsibility to Protect: Timely and Decisive Response, Paras. 31-32. 36 World Summit Outcome, Para. 139. 37 See A.J. Bellamy, ‘The Responsibility to Protect and the Problem of Military Intervention’, 84(4) International Affairs (2008), p. 623; L. Boisson de Chazournes and L. Condorelli, ‘De la «responsabilité de protéger», ou d’une nouvelle parure pour une notion déjà établie’, 110(1) Revue Générale de Droit International Public (2006), p. 13; J. Brunnée and S.J. Toope, ‘The Responsibility to Protect and the Use of Force: Building Legality?’, 2(3) Global Responsibility to Protect (2010), p. 208; M.W. Doyle, ‘International Ethics and the Responsibility to Protect’, 13(1) International Studies Review (2011), p. 82; A. Kapur, ‘Humanity as the A and Ω of Sovereignty: Four Replies to Anne Peters’, 20(3) European Journal of International Law (2009), pp. 562, 565; E.C. Luck, ‘The United Nations and the Responsibility to Protect’, The Stanley Foundation Policy Analysis Brief (2008), pp. 7-8; Á. Prandler, ‘The Concept of ‘Responsibility to Protect’ as an Emerging Norm Versus ‘Humanitarian Intervention’, in I. Buffard et al. (Eds.), International Law Between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner, Martinus Nijhoff Publishers, Leiden, Boston, 2008, pp. 718-719; C. Stahn, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’, 101(1) American Journal of International Law (2007), pp. 109, 120; A. Szalai, ‘A védelmi felelősség koncepciója, avagy van-e új a nap alatt?’ (The Concept of the Responsibility to Protect, or Is There Anything New under the Sun?), 3(1) Pro Futuro (2013), pp. 76-77; Cs. Törő, ‘R2P Without UN Security Council Mandate – Sub-

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strongly suggest that the legal basis of collective action is Chapter VII of the Charter. The sentence concerned does refer to that chapter, but in a curiously exemplificative manner: ‘including Chapter VII’. This formula leaves room for three different interpretations. First, it may be taken at face value to mean that collective action ‘through the Security Council’ must be in accordance with the Charter, and within the Charter, with Chapter VII. The word ‘including’ here only serves to describe the whole-part relationship between the Charter and Chapter VII, and the latter is implicitly considered as the sole legal basis of collective action ‘through the Security Council’. This overcomplicated reference to Chapter VII shows a departure from the formulation of the previous sentence, which refers to Chapters VI and VIII with much greater simplicity and accuracy. The departure is hard to explain: it breaks the aesthetics and consistency of the text only to add a superfluous fragment (‘the Charter, including’). In short, if this reading is correct, it reveals another drafting error. Yet the formula may also carry a meaning, which is incomparably deeper than a plain description of the whole-part relationship between the Charter and Chapter VII. It may indicate that Chapter VII, regardless of its importance that warrants express mentioning in the text, is but one of many sets of provisions in the Charter that play a critical role in the context of collective action ‘through the Security Council’. This train of thought inescapably leads to the question: Which provisions of the Charter were left uncited? There are two alternatives. If Chapter VII is considered as the sole legal basis of collective action, the uncited provisions of the Charter must be of special relevance, but can and do not substantiate the legality of such action per se. These provisions form a ‘halo’ around Chapter VII and include, for example, the articles on the purposes and principles of the organization (Chapter I), the composition, voting and procedure, and functions and powers of the Security Council (Chapter V), and the conduct of co-operation with regional arrangements or agencies (Chapter VIII). Still, it remains beyond comprehension why the drafters made a totally dispensable hint at provisions that are directly related to the invoked chapter of the Charter, if they had not deemed the same necessary just a few lines above, in the previous sentence. The coercive nature of collective action can hardly provide a convincing explanation. Hence this reading should be taken with reservations. Conversely, if Chapter VII is not considered as the sole legal basis of collective action, and is really mentioned as an example, the uncited provisions of the Charter must be of such content and character as to be able to substantiate the legality of such action. Now

sidiary Action as the Possible Way Out of Institutional Deadlock?’, in Sancin and Kovič Dine 2013, pp. 242243; I. Winkelmann, ‘Responsibility to Protect’, in Wolfrum 2012, Vol. 8, pp. 969-970. For other opinions, see Arbour 2008, pp. 453-454; A. Peters, ‘Humanity as the A and Ω of Sovereignty’, 20(3) European Journal of International Law (2009), pp. 539-540, 544. (It should be noted that whether the responsibility to protect compels the Security Council to authorize collective action, and whether it can be bypassed in cases of blatant inaction are related but separate matters.)

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the question is whether there are any provisions in the Charter, apart from those in Chapter VII, which can possibly meet that requirement. The answer is surely in the negative. There are a few likely candidates, particularly Articles 2538 and 106,39 but even a superficial analysis reveals that they do not offer a viable solution. In sum, it appears that the definition of the normative framework of collective action is indeed flawed, for such action can only be taken ‘through the Security Council’ under Chapter VII of the Charter. This brings us to the last textual anomaly. The World Summit Outcome, as has been pointed out, strives to link collective action to the Security Council. The motivations are obvious: to preserve the primary responsibility of that principal organ for the maintenance of international peace and security, to ensure the integrity of the prohibition of the threat or use of force, to prevent the unilateral application of coercive means, and to win the favour and support of disinclined governments. But an early report by the SecretaryGeneral paints a slightly different picture of the scope of organs empowered to initiate collective action. The report submits that such action can be authorized or recommended, as appropriate, by the Security Council under Chapter VII of the Charter, by the General Assembly under the ‘Uniting for Peace’ resolution,40 or by regional or sub-regional organizations with prior and express authorization by the Security Council.41 This submission is in conformity with the established rules and principles of international law, the provisions of the Charter, and the practice of the United Nations.42 It is further reconcilable with the motivations that seem to have driven the drafters of the World Summit Outcome. The only thing it is in conflict with is the restrictive wording of the document, which completely ignores the role of the General Assembly, and insists that collective action must be taken ‘through the Security Council’. (It should also be noted that the involvement of regional and sub-regional organizations, albeit duly observed, is envisaged fairly inconsistently in 38 UN Charter, Art. 25: ‘The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.’ See also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, 1971 ICJ Rep. 16, at 52-53, Paras. 113-114. 39 UN Charter, Art. 106: ‘Pending the coming into force of such special agreements referred to in Article 43 as in the opinion of the Security Council enable it to begin the exercise of its responsibilities under Article 42, the parties to the Four-Nation Declaration, signed at Moscow, 30 October 1943, and France, shall […] consult with one another and as occasion requires with other Members of the United Nations with a view to such joint action on behalf of the Organization as may be necessary for the purpose of maintaining international peace and security.’ 40 Uniting for Peace, GA Res. 377A, 3 November 1950. 41 Implementing the Responsibility to Protect, Para. 56. 42 The General Assembly may recommend coercive measures, regardless of the ‘Uniting for Peace’ resolution, solely on the basis of the Charter. These recommendations are, of course, not legally binding. See UN Charter, Arts. 10, 11(2), 12, 14. See also Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, 1962 ICJ Rep. 151, at 163; K. Hailbronner and E. Klein, ‘Article 10’, in B. Simma (Ed.), The Charter of the United Nations: A Commentary, Oxford University Press, Oxford, 1995, pp. 231-235; H. Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems, Stevens & Sons Ltd., London, 1951, pp. 203-205.

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paragraph 139. First it makes a numerical reference to Chapter VIII with respect to diplomatic, humanitarian and other peaceful means, then a textual reference to ‘cooperation with relevant regional organizations’ with respect to collective action.) No doubt the uncertainty surrounding the role of the General Assembly will be dismissed by future practice. Indications are that the Secretary-General has already adopted a more cautious approach: while the cited report repeatedly recalls the ‘Uniting for Peace’ resolution, his subsequent report on pillar three conspicuously avoids naming it.43

14.5

Conclusions

The responsibility to protect holds great promises for the future, but its ultimate success depends on its effective operationalization. This delicate process demands an appropriate and standardized interpretation of the text, in which the concept is officially recognized and authoritatively spelled out: paragraphs 138 and 139 of the World Summit Outcome. However, the interpretation is not as simple a task as it ought to be. The foregoing investigation has revealed that the document is fraught with several interpretative challenges and textual anomalies that affect, one way or the other, every single pillar of the concept. The specific issues that have been disclosed and briefly analysed concern the bearers and beneficiaries of the responsibility to protect, the calamities from which the beneficiaries need to be protected, the exposition of international assistance and capacity-building, the status of the requested support of the United Nations, the threshold and normative framework of collective action as well as the scope and role of organs empowered to authorize or recommend such action. The number of issues so identified is nine, but the total amount of conceivable interpretations reaches considerably higher, and exceeds a dozen. Given that the whole description of the responsibility to protect only consists of eight sentences or two hundred sixty-seven words, these figures are truly disturbing – even for a document that was never intended to be legally binding. (The textual elements to possible meanings ratio is, in fact, worse still. The third sentence of paragraph 139 tells virtually nothing about the concept, and was consequently excluded from the investigation. In addition, the figures above do not reflect the sheer volume of potential combinations of different interpretations.) The theoretical and practical gravity of interpretative challenges and textual anomalies ranges from negligible to extreme: some are plainly insignificant, others perturb critical segments of the concept. These latter issues attach all the more importance to the task of interpretation, and signal that scholars of international law have an essential role to play in the implementation of the responsibility to protect. It is mainly up to them to make 43 Responsibility to Protect: Timely and Decisive Response. The emphasis is noticeably placed on the Security Council. See Paras. 31-32.

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virtue of necessity by addressing problems in the core document of the concept, by developing and promoting its proper understanding, and by safeguarding it from witting or unwitting misinterpretations. The present study is hoped to be a modest contribution to that global effort.

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Tamás Lattmann*

15.1

Introduction

Since the Strasbourg-based European Court of Human Rights has started its operation in 1959 – as a second pillar of European human rights protection, accompanying the Commission – states party to the European Convention on Human Rights (1950)1 have adopted a series of protocols aiming to develop a stronger and more effective supervisory mechanism.2 This has not only served the interests of the people of Europe, but also a wider European political goal: to set the standards worldwide in international human rights protection. It is fair to say that the system created in the framework of the Council of Europe has been a leading example to both the similar Inter-American and African systems.3 The problem of the high number of cases has arisen already during the 1980s, before the Court became a single institution. The European Commission on Human Rights already had to deal with this issue, and the question of reforming the mechanism has been on the table ever since. This has been become ever so urgent following the accession of the new democracies of Central and Eastern Europe, many of which also faced serious human rights questions. Protocol 11 (adopted in 1998)4 which has made the Court the single institution of European human rights protection, vested the Court with an enormous extra work burden. By enabling individuals to bring their cases directly before the Court, the latter had to cope with unprecedented problems: an incredible growth in the number of the complaints, with a concurrent fall in overall quality. Previously, the Commission was there to select the

*

1 2

3 4

Associate professor, National University of Public Service, Institute of International Studies; Lecturer, Eötvös Loránd University, Department of International Law. E-mail: [email protected]. The study is partly based on a research funded by the project no. ÁROP-2.2.5-2008-0001. Convention for the Protection of Human Rights and Fundamental Freedoms. CETS No. 005 (Convention). For more on the matter, see inter alia: D. Shelton: Remedies in International Human Rights Law, OUP, Oxford, 2000. pp. 147-160; M.W. Janis et al. (Eds.), European Human Rights Law. 3rd edn, OUP, 2008. pp. 24-27, pp. 70-118. Shelton: op. cit., p. 12. Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby. CETS No. 155. (Protocol 11).

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cases, with the result that the Court only dealt with ‘interesting’ and well prepared cases. After Protocol 11 however, it had to face a massive amount of applications, a great proportion of which was either ill-founded or simply inadmissible and the Court had to deal with the selection process itself.5 Blueprints to reform the Strasbourg Court responded to the crisis caused by the heavy workload of the European Court of Human Rights,6 a crisis threatening the effectiveness of the European Convention on the national level. When thousands of human rights cases block the operation of the Strasbourg Court, applicants lose confidence, the mechanism loses its credibility in the eyes of national courts and states may become more confident in committing human rights violations. Another problem was the high number of inadmissible cases: according to a relevant survey, 90% of the applications submitted during the first ten years of the Court operating as a single institution (1998-2008) were declared inadmissible. This has shown that even victims of violations had problems with fulfilling the necessary criteria or conditions for resorting to Strasbourg. An even more complex problem were those repetitive cases, which reflected systemic and structural problems in certain Member States, usually the ones with the worst human rights record – it seemed that the Court’s individual decisions were not really effective.7 A major reform was conducted to address the problem of the enormous increase in the number of applications and the Court slowly but steadily drifted towards inoperability under the burden of its workload. The result was Protocol 14 adopted in 2004,8 which entered into force in 2010, after a long – and politically tense – ratification period. It introduced new rules, aiming to speed up the procedures of the Court. One of these reforms was the introduction of new judicial formations for the simplest cases and for deciding on admissibility, in order to render the allocation of human resources of the Court more effective. For example, a single judge deciding on the admissibility of a case was a novelty, criticised by some human rights actors and NGOs, but this was not the most important change. The other, more interesting element was the establishment of a new admissibility criterion: from that time on the condition of the presence of a ‘significant disadvantage’ was also needed to find a case admissible. This gave rise to a number of questions, as the Court itself had already developed its jurisprudence in a way as to reduce its heavy workload.

5 6 7

8

Janis et al. (Eds.): op.cit., pp. 878-882. Ibid., pp. 878-885. The weight of this problem is clearly shown – and used for criticism toward the Court – inter alia in a lecture given by Leonard Hoffmann, a well-known British law lord in 2009. Lord Hoffmann: The Universality of Human Rights. Judicial Studies Board Annual Lecture, 19 March 2009. Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention. CETS No. 194 (Protocol 14).

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But this new criterion introduced into the text of the Convention by the states can also be interpreted as a dangerous attempt by way of which the states may restrict the Court in its activities. It is worth examining – as will be done below – how this new provision influenced the Court’s practice. Personally I believe that the effects are still not to be clearly seen. Even though some jurisprudence can be examined, analysed and some conclusions may be drawn, certain elements are still subject to questions. After 2010, new questions were raised, which were partly related to the limited success of Protocol 14. It is worth noting that there was an important additional political factor in play. Some states found the strong tools of the Court problematic and the general political crisis around the European Union (culminating most visibly around the Lisbon Treaty) also created a somewhat hostile approach towards the Court. It had already experienced serious differences before with non-EU states (Russia or Turkey), and even if from an institutional perspective the Court has nothing to do with the EU, because of some political problems surrounding certain EU Member States, it also became caught up in the crossfire of criticism voiced by these states. In addition, as the Lisbon Treaty obliged the EU to become a party to the Convention and to accept the Court’s jurisdiction, the Court inched even closer to the smoking crater of EU domestic political tensions. During this period of time, three high-level conferences were held to address the future of the Court, and to find solutions to ensure the long-term effectiveness of the Court and the Convention (Interlaken in February 2010, İzmir in April 2011 and Brighton in April 2012). The work of these conferences resulted in the adoption of two additional protocols to the Convention, namely Protocols No. 15 and 16 in 2013.9 Both of them aim to introduce means to accelerate or at least ease the work of the Court. Although this is a perfectly legitimate goal, I am afraid that the Protocols’ provisions may also have a negative effect on the Court’s powers. For example, Protocol No. 15 reduces the timeframe for lodging an application with the Court after the final national decision from six to four months, making it harder to access the Court. It also amends Article 30 of the Convention in a way that parties to the case can no longer object against chambers transferring cases to the Grand Chamber if they it deem necessary in order to avoid a situation where the outcome of the case becomes contrary to the Court’s practice. Parallel to these technical elements, the text of the Protocol also inserts a somewhat inopportune reference into the Convention’s preamble to the principle of subsidiarity and the doctrine of the margin of appreciation. Protocol No. 16 is the last modification of the Convention, adopted in June 2013. Contrary to the established practice of protocols touching upon the control mechanism

9

Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms. CETS No. 213 (Protocol 15); Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms. CETS No. 214 (Protocol 16).

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of the Convention, this Protocol is merely optional, meaning that no full consensus is needed from the states and the Protocol may enter into force after ten ratifications. It will create the possibility for the highest domestic courts or tribunals to request the Court to give advisory opinions on questions of principle relating to the interpretation or application of human rights protected by the Convention in the context of cases pending before them.

15.2

Evaluation of the Reforms Introduced by Protocol No. 14

The growth in the number of cases following 1998 was the combined result of the existing distrust from the side of national authorities in many Member States, and the growing reputation of the Court. This phenomenon supplied the reform process with an additional political component. The question centred on the access to the court: in case the bar of admissibility were to be raised, the Court’s case-oriented activity could shift to a more constitutional role, desirable to some commentators, but less popular with certain states. At this point, an additional element must be highlighted: in my opinion, a pick-andchoose approach employed by the Court would not help individual justice. This scrutiny has already followed the adoption of Protocol 14. And even though the amendments introduced can be qualified as small and technical, they must be analysed through the prism of the broader question of individual justice, and I believe the same is true for all subsequent amendments. Most analysts agreed that the high number of cases in front of the Court was the main problem, and several proposals were put forward to solve the situation. At the same time the accessibility of the Court was also at stake, so many observers warned that the possible solution should focus exclusively on the reform of the Court itself or on restricting access to the same. A brief survey of the various solutions proposed shows that suggestions range between giving the Court total freedom in the selection of applications to leaving the selection system unchanged. Protocol 14 eventually included three reforms: 1. reinforcing the Court’s capacity to filter applications (e.g. by a single judge); 2. measures for dealing with repetitive cases; 3. adoption of the new admissibility criterion. Even though experts and especially human rights NGOs have criticised all reforms, the third one was considered to be the most controversial aspect of the new Protocol, as it seemed capable of seriously limiting access to the court. The menace of the practical application of the principle ‘de minimis non curat praetor’ threw a shadow on the reform process.

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The New Admissibility Criterion

The idea of the new admissibility criterion was included in a 2003 working document prepared by the organ created by the Committee of Ministers (Steering Committee for Human Rights – Comité Directeur pour les Droits de l’Homme, CDDH). It propelled the already ongoing debate about the possible future role of the Court. Two sides emerged: one arguing for a more constitutional role of the Court, and another one, seeing it as an institution serving individual justice. The first one was supported by the majority of the Court’s judges and most of the members of the Committee of Ministers. The other side comprised many NGOs, the majority of the members of the Parliamentary Assembly and some states parties, who opposed admissibility thresholds for cases. I believe that the motivations may easily be explained. Members of the Court strived for an enhanced role of the institution: a European-level constitutional court of human rights. Member state governments – represented in the Committee of Ministers – wanted to curb growing numbers in the Court’s statistics, so any raise in the threshold seemed to serve their primal political interests. On the other hand, NGOs, mostly directly involved in individual complaints, perceived such a reform as a direct threat to their activities. Members of the Parliamentary Assembly rejecting the idea usually came from the ranks of political groups in opposition at the domestic level, committed to opposing any idea supported by the Committee of Ministers in their ‘business as usual’ mode – not necessarily a well-founded professional consideration. One of the original proposals from the first side of the debate was to give the Court the possibility to freely decide on dismissing cases which – according this side – raised no substantial issue under the Convention. The origins of this concept lie in the above mentioned principle: de minimis non curat praetor. This means that in case of certain violations the Court could still decline to deal with the case, if it is not considered to be very important from a human rights perspective. This idea was fervently opposed by supporters of the idea of individual justice, who believe that individual complaints lead to a wider interpretation of the Convention, resulting in stronger protection. As a compromise, the final text of the protocol reformulated this idea to take into consideration the applicant’s perspective, yet still maintaining the core of the principle. The result was the reference to the individual’s ‘significant disadvantage’, which led to the Court’s interpretative jurisprudence, to be examined later. The danger inherent in the adopted text is that it may do more harm to potential individual applicants, than good to the structure it wishes to improve. NGOs had criticised the original proposal for sending the wrong signal to state parties: it seemed that less important violations of human rights could escape examination by the Court. Personally I believe that this is a realistic danger: ignoring smaller violations can easily cause a violation-spiral effect, states are left undeterred from such violations. This can cause serious

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problems in case of violations deriving from structural reforms of the states, which shall remain under the Court’s control. The Court itself seemed to welcome the new criterion, what’s more, signs indicated that some members were not contented with Protocol 14 and pressed for further reforms. The Court already seemed to follow the tendency of ‘getting rid of less serious cases’ and was willing to move towards a more constitutional role, but as we shall see, such an endeavour is not possible in one or two giant steps. While state parties to the Convention also seemed satisfied with the new criterion, professional discussion – especially about the dangers it entails – has not ceased. Some commentators criticised it for being subjective, pointing out that the notion of a ‘significant disadvantage’ is elastic and poses the danger of being varied over time by the Court’s actual needs in light of its workload. Another problem would be if ‘disadvantage’ were to be considered exclusively as a financial problem, not as an intrusion into the individuals’ dignity or privacy. The concerns surrounding the uncertainty of the notion ‘significant’ was widely echoed by human rights NGOs and advocates, who added that the notion will not really help reduce the backlog of the court, it being primarily an organisational and resource-allocation problem. Finally, others argued that the reforms brought about by Protocol 14 are far from being sufficient, for these have not significantly eased the workload of the Court. After the protocol entered into force, the task of the Court was to silence concerns by developing an interpretation of the new rules.

15.3

Application of the New Criterion by the Court

Nearly four years after Protocol 14 entered into force, it is timely to evaluate how the Court interpreted and applied the new admissibility criterion by examining some of its numerous decisions and judgments on this matter. But before that, it has to be noted that even before the Protocol, the Court already had means at its disposal to deal with cases it deemed unmeritorious or frivolous. According to its practice (or that of the Commission, which existed until 1998, and was mainly responsible for deciding on admissibility), the relatively low amount of financial damage caused by a violation has not served as basis for dismissing a case. For example, the Court explicitly rejected this argument raised by Greece, where the dispute was over an amount of only € 52.86.10 It is important to add, that this approach did not changed later. As Judge Javier Borrego Borrego stated ‘human rights cannot be reduced to mere figures based on a cost-benefit analysis’, but the reader could feel trouble approaching, as

10 Case of Koumoutsea v. Greece (Appl. No. 56625/00), Judgment, Strasbourg, 6 March 2003.

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he added that in case of Protocol 14 had been in force, the case could easily have been dismissed.11 A later Grand Chamber judgment gave rise to a difference of views among the ranks of the Court. The case was related to a matter of seemingly less importance: a neighbour complained about another, who was in the habit of hanging her washed clothes over her yard. Four jointly dissenting judges argued that: ‘The disproportion between the triviality of the facts and the extensive use – or rather overuse – of court proceedings is an affront to good sense, especially as serious human-rights violations subsist in a number of State Parties. Is it really the role of our Court to determine cases such as this?’12 Personally I believe that this question well founded, but I have some doubts about the appropriateness of judges raising this question. The case shed light onto this internal debate within the Court, touching upon its possible future role. A few months later the Court had a new opportunity to touch upon this question – with a different outcome, when rejecting an application of trivial nature.13 The dispute was related to the reimbursement for medicines cheaper than € 8, but the Court applied a different admissibility criterion, not only examining the amount of reimbursement. The possibility based on Article 35 § 3 (a) of the Convention may be used in case of an abuse of the right to individual complaints. In such a situation, an individual application may be declared inadmissible by the Court, but this is unrelated to the theoretical possibility of the case bearing no real financial significance. In the case, the Court found the previous element to be more relevant. At the same time, it also pointed out that the case-law on the human rights issue under scrutiny (excessive length of proceedings) was established and clear. On the other hand, it also expressed arguments related to the problem of the extensive use of court proceedings (including turning to international judicial fora), the Court’s heavy workload and the large number of pending applications involving more serious human rights issues. The reader could only come to the conclusion that the Court itself is looking for a way to avoid the question, employing certain out-of-the-case arguments. How else could we qualify the problem of the heavy workload of the Court – in relation to an individual complaint? It seems that the Court itself has already been preparing itself for the new rules of Protocol 14. When these new provisions entered into force on 1 June 2010, the Court was bound to apply them. And it had done so, from the very first day, in a case which related to a dispute with a coach transport company. The applicant’s booking for a journey ended up in a debate about available free seats, advertisements of the company and the national proceedings settling the dispute. The Court concluded that the loss of around € 90 did not

11 Case of Debono v. Malta (Appl. No. 34539/02), Judgment, Strasbourg, 7 February 2006. 12 Case of Micallef v. Malta (Appl. No. 17056/06), Judgment, Strasbourg, 15 October 2009. 13 Case of Bock v. Germany (Appl No. 22051/07), Decision on admissibility, Strasbourg, 19 January 2010.

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constitute a significant loss or other consequence for the applicant, thus, it already applied the new criterion in respect of this claim.14 The optimistic interpretation may conclude that the Court made use of the new provisions to avoid becoming a target in cases related to less-important matters and to focus on its most important task, the protection of human rights via relevant ‘big’ cases, leaving ‘smaller’ issues to domestic jurisdiction. On the other hand, analysts of the work of the Court have drawn attention to the fact that it has analysed and applied the new criterion carefully: This seems to send out the signal that the Court will not too easily apply this criterion to do away with an entire application, but will use it with a caution that respects the various aspects of a complaint. This may assuage the concerns and fears of many, but on the other hand may diminish the efficiency gains of the new criterion.15 One month later, the Court had to evaluate and analyse the new criterion in another decision on admissibility.16 By stating ‘a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court’, it seemed to accept the applicability of the idea, that no single complaint should see international control. It also indicated that in order to assess whether this level had been reached and the applicant had suffered a significant disadvantage, it shall apply a complex examination in the future. It shall be based on two factors: 1. the applicant’s subjective perception – how detrimental is it to the applicant, the effect it has on his life, circumstances, taking into account the individual elements of the case; 2. an objective assessment of the problem, that requires an evaluation of elements beyond the narrow context of the complainant. Optimally, the two elements must be present at the same time. In the actual case, the Court found the application admissible, as the applicant limited ‘his claims solely to pecuniary damage’, which in itself was not found significant enough by the Court. Sometimes it seems difficult to make a distinction between subjective perception and objective assessment. According to the Court’s jurisprudence, even subjective perception must be justified on objective grounds. In a case the Court has found that even if the applicant’s individual feelings are relevant, these must be justified by some objective reasons as well in order to become a ‘significant disadvantage’ capable of serving as a basis for an 14 Case of Ionescu v. Romania (Appl. No. 36659/04), Decision on admissibility, Strasbourg, 1 June 2010. 15 First Decision on Lack of a Significant Disadvantage, ECHR Blog, 29 June 2010. Available online: http://echrblog.blogspot.hu/2010/06/first-decision-on-lack-of-significant.html (accessed: 10 December 2013). 16 Case of Korolev v. Russia (Appl. No. 25551/05), Decision on admissibility, Strasbourg, 1 July 2010.

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admissible complaint.17 For example, the situation evaluated by the Court in the given case failed to meet this requirement: the applicant may have felt unfairly treated for not being granted access to the local court president (before others who also waiting for him), but there were no objective reasons he could demonstrate. Nevertheless, the subjective perception of a disadvantage can be deemed significant by the Court if the facts of the case so require. In a case, the Court deemed the loss of the Romanian applicant worth around € 350 as significant, as the average Romanian pensions at that time were around only € 50.18 But even in this case a question of principle had to be evaluated: as the Court correctly pointed out, the legal problem not only touched upon the financial loss, but also the applicant’s ‘rights to respect for his possessions and for his home’. A logical conclusion from this interpretation would be to establish a connection between subjective perception and the violation of a human right as an objective ground, but personally I believe that this idea may lead to inopportune consequences: a violation of one human right would become the condition for the Court to examine the violation of an other human right. This would not help the work of the Court or the improvement of the human rights situation in the future. On the other hand, in this case it is hard to decide the Court’s real intention. It had already concluded before, that the € 350 amount in the case is not insignificant, the application is not inadmissible, therefore, no further substantiation was required. The answer may be unravelled through the examination of later cases. In October 2011, about one year after the Protocol’s entry into force, the Court recognised in a new judgment that its jurisprudence on the matter of significant disadvantages and admissibility is not conclusive and needs clarification.19 Its previous judgments only partially provided criteria necessary for the creation of a comprehensive system. Therefore, it summarised the following criteria: 1. the nature of the allegedly violated right; 2. the gravity of that alleged violation; 3. the possible consequences of the alleged violation on the personal situation of the applicant. The elements of these criteria have not been referred to as one ‘complete set’ in later cases, so the Court’s jurisprudence still followed its usual case-to-case approach. I find this less surprising, as any alternative would yet again lead again to disruptions. Minimizing or maximizing any of these could be problematic, but the question of principle also arises. It is hard to argue that even relatively small violations of core rights, or rights not allowing

17 Case of Ladygin v. Russia (Appl. No. 35365/05), Decision on admissibility, Strasbourg, 30 August 2011. 18 Case of Giuran v. Romania (Appl. No. 24360/04), Judgment, Strasbourg, 21 June 2011. 19 Case of Giusti v. Italy (Appl. No. 13175/03), Judgment. Strasbourg, 18 October 2011.

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for a derogation, could not be considered significant or worthy of the Court’s attention in case of a failure of the state to suppress it. It is logical to say that in cases such as these, the new admissibility criterion should better not to be applied at all. Depending on the form of remedy or reparation offered by the state, the disadvantage suffered by the applicant can turn out to be ‘insignificant’. The Court has come to the conclusion that in case of a violation due to the excessive length of a criminal proceeding ‘the reduction of sentence at least compensated for or significantly reduced the damage’ which would have normally been taken into consideration.20 As a consequence, the Court finally decided that the applicant had not suffered a significant disadvantage related to the right to be tried within a reasonable time. It seems the ‘significant’ nature of disadvantages suffered by the applicant is the decisive factor. These can be either financial or other kinds of disadvantages. So far, no precise threshold has been set by the Court for financial disadvantages; the above mentioned cases demonstrate that while the assessment shall not be made in the abstract,21 the applicant’s individual circumstances can also be decisive.22 As the Court correctly noted, even small financial damages may become significant, depending on the applicant’s specific financial conditions and the overall economic situation of the state or region where the applicant resides. According to the interpretation of the Court, amounts under € 500 come under examination, while much higher sums of financial disadvantage are usually a reason for the Court per se to reject the application of the new criterion. But the amount of damages is not everything. Even though it may seem to be an important factor and may draw attention, the Court still evaluates other elements when deciding on the significance of the damage. Maybe the best example for this is the case where the debate centred on an extremely high amount of money (around € 20 million in taxes), but the procedural violation by the state was not considered decisive by the Court. As such, the disadvantage was not found to be ‘significant’, because the national authorities would have made the same decision without the mistake anyway.23 This interpretation followed the Court’s previous jurisprudence from a number of earlier cases, that irrelevant factual elements not leading to decisive aspects of the national decisions are not to be evaluated – as the domestic court (or other body) had not based its decision upon these elements. The situation is completely different if it can be shown, that these include new information, which could lead to a different decision – but in this case the disadvantage suffered by the applicant cannot be considered ‘insignificant’.

20 21 22 23

Case of Gagliano Giorgi v. Italy (Appl. No. 23563/07), Judgment. Strasbourg, 6 March 2012. See Korolev v. Russia. See Giuran v. Romania. Case of Liga Portuguesa de Futebol Profissional v. Portugal (Appl. No. 49639/09), Decision on admissibility, Strasbourg, 3 April 2012.

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Sometimes the question whether the disadvantage was significant or not proves to be inseparable from the merits of the given case. For example, a case about interference with property can hardly be separated from the decision on whether the applicant has suffered an excessive burden. This is not a real novelty for the Court, its practice in similar situations is to join the question of admissibility to the merits, and to decide on both in the final judgment.

15.3.1

The Safeguard Clauses

Though aiming at giving the Court a chance to get rid of some of the ‘lesser’ cases, Protocol 14 has also added two safeguard clauses to the text, applicable when deciding on the admissibility of a complaint.24 In my opinion these are very important, because they serve as a possible tool of ‘checks and balances’ to make sure that in some situations the Court has to deal with an individual complaint even without a ‘significant’ disadvantage. The first one is related to the importance of the complaint: it has to fulfil a higher threshold, the text stating that it has be in relation to ‘respect for human rights as defined in the Convention and the Protocols thereto’ and this importance must be such, that it ‘requires an examination of the application on the merits’. This provision makes it possible for the Court to evaluate an individual case before examining it in the merits. This way it can strengthen its constitutional role by deciding about – if it deems necessary – accepting a case, which would seem trivial, instead of rejecting it. This will help the Court maintain its leading role. Presently, the Court seemingly upholds that his control function is applied even to ‘questions of a general character’ which affect the observance of the Convention. This attitude may be useful when the Court is to assess a structural human rights problem in the respondent state. From the Court’s jurisprudence we can draw up three categories of cases, when this clause is not applicable: 1. if the Court has already created substantial case-law on the issue at hand – in this case the individual examination would add nothing new to the already existing jurisprudence, which the states shall be able and ready to apply; 2. if the Court and the Committee of Ministers have already addressed the problem, and have acknowledged it as systematic; in this case it is doubtful that the judgment would have any specific result; 3. when domestic law or practice related to the subject of the complaint has already been modified – in this case the complaint does not have any relevance any more, especially not from a point of view of general human rights protection.

24 Protocol 14, Art. 12.

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The goal of the second clause was to make sure, that cases which have not been ‘duly considered by a domestic tribunal’ can be brought before the Court. It is also extremely important, for without this possibility there would be a giant gap in the human rights protection structure. It is to be applied, when there is no effective domestic remedy on the domestic level for a given human rights violation serving as a basis for the complaint. The wording ‘duly examined’ refers to the respect of relevant principles applied by domestic courts, but not necessarily the result of their activity. So we can say that as long as the domestic judicial system addresses the human rights complaints and gives reasoned judgments, the Court’s practice will accept that the case has been duly considered. Any alternative would be problematic, as it could be easily argued that it constitutes an infringement of state sovereignty and general principles of international human rights law, which vest the primal responsibility of providing remedy for human rights violations on state jurisdiction. When evaluating the application of this criterion, the Court has come to the conclusion, that the second clause has been found relevant in only a very few cases. This raised questions about its expedience, and as we will see, Protocol 15 responds to this issue accordingly.

15.3.2

Conclusions of the Court’s Interpretation of the Criterion Introduced by Protocol No. 14

Although since 2010 the new admissibility criterion has been analysed by the Court, it is fair to say that it is far from being exhaustively defined. We can also conclude that so far it has been applied to applications related to right to a fair trial, right to an effective remedy and protection of property cases, following a careful approach route. Perhaps too careful for the states party to the Convention. In their high level conferences both in Interlaken and Izmir they called upon the Court to give full effect to the new admissibility criterion, ‘in accordance with the principle, according to which the Court is not concerned by trivial matters’, they emphasized. The Brighton Conference Declaration of 2012 has shed light on even more dissatisfied states, reminding the Court ‘to apply strictly and consistently the admissibility criteria’, ‘to ensure that unnecessary pressure is not placed on its workload’.

15.4

The Pilot-Judgment Procedure, the Court’s Own Attempt to Handle Repetitive Cases

The so-called pilot-judgment procedure was developed by Court as a means to deal with larger groups of identical cases rooted in the same problem. The Court referred to them earlier as repetitive cases. High in numbers, these cases represent a vast part of the Court’s

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workload, seriously contributing to its backlog – while in most cases, they do not represent an important human rights problem after the first of these had been decided. The Court delivered the very first pilot judgment in 2004 (concerning the so-called Bug River cases from Poland),25 and used the procedure ever since. Not all repetitive cases are suitable for a pilot-judgment procedure, it is always up to the Court to decide which cases fit the profile – just the same way as the employment of this specific procedure itself is also decided by the Court, when it receives a high number of applications deriving from the same reason. It this case, it may decide to select one or more of them for priority examination. When dealing with these, the Court will seek to work out a judgment that can extend beyond the particular cases. The aim is to cover all similar cases related to the same issue. This first judgment is called the ‘pilot judgment’. In the pilot judgment the Court determines whether there has been a violation of the Convention in the particular case, just like in any other individual case. But the Court also identifies the problem (probably a disfunction which is part of a bigger systematic problem) under domestic law that served as the reason for the violation, and gives indications to the government of the state party on how to eliminate this problem. Additionally, the Court also makes recommendations for the creation of a domestic remedy capable of dealing with all similar cases, including the ones already pending before the Court. This way, the affected state gets the chance to correct its mistake and escape a high number of nearly identical procedures – and so does the Court. The pilot judgment not only helps domestic authorities to eliminate systematic or structural problems, but also creates a chance for the Court to get rid of a high number of similar – repetitive – cases. In the meantime it also helps the Committee of Ministers in its basic role, which is to ensure that the Court’s judgments are properly executed by Member States. The big advantage of this procedure from the aspect of the Court comes in connection with the other cases touching upon the same problem. In case of a pilot-judgment procedure, the Court may adjourn the examination of all other related cases for a certain period of time. This is also an additional means of forcing national authorities to take the necessary steps – otherwise they will have to cope with these complaints as well. This adjournment may be subject to the condition that the respondent State acts promptly and effectively after the pilot judgment. In the adjourned cases the Court keeps the applicants informed of every development of the procedure, as the importance of this is fully recognised by the Court. It is also important to stress that the Court may at any time resume its examination of any case if it deems necessary, for example, if the circumstances of the applicant make it unreasonable or unfair to have to wait for a remedy.

25 Case of Broniowski v. Poland (Appl. No. 31443/96), Judgment, Strasbourg, 22 June 2004.

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This, however, requires a demanding special interest on the applicants’ side, in any other case the procedure serves the goal of the Court to speedily examine high numbers of complaints – as the central idea behind this procedure is accelerating remedy: in case of a large number of applications concerning the same problem, effective remedy for applicants is always more easily established at national level. Of course, individual remedy is also available in Strasbourg through cases processed on an individual basis, but it would not help either the Court’s heavy workload or the applicants’ situation if they would have to wait years for the decision on their complaints. As the first pilot-judgment procedure was considered successful,26 this procedure has promised to be a new, more effective way to deal with such cases. Presently, it is hard to decide if this will be an established new type of procedure of the Court, for it is still evaluating and monitoring its operation in other cases to see what further lessons may be drawn. States party to the Convention do not really seem impressed by this method yet, or at least the fact that Protocol 15 and 16 have not followed this direction indicates their reluctance to accept it. Even though the pilot-judgment procedure is probably not the final solution to all the difficulties deriving from the heavy workload of the Court, it has the potential possibility to provide for the elimination of some of the problems of repetitive applications. It is also important to stress that not every pilot judgment will lead to an adjournment of all related cases, especially in a situation where an otherwise systematic problem turns out to touch upon some other fundamental human rights of individuals under the Convention. In these cases the Court can decide to examine the case regardless of the pilot-judgment procedure. For a long time this procedure lacked a clear legal basis. It seems to have political support from the Committee of Ministers, and there have been heavy arguments in its favour, but as I mentioned above, it was not detailed in any document governing the operation of the Court. Because of this, many questions were left open, among which the most important may have been, when and how the Court would use this method. In 2010, the Interlaken conference called upon the Court to develop clear standards and rules for the procedure, which was echoed by NGOs and academics as well. As a result, the Court included a new provision in its Rules of Court, Rule 61, which entered into force at the end of March 2011. The new rule provides that the pilot-judgment procedure can be used when facts stated in an application ‘reveal in the Contracting State concerned the existence of a structural or systemic problem or other similar dysfunction which has given rise or may give rise to similar applications’. Although this piece of legislation provides a possible legal basis, it still does not answer many questions that can be raised in relation to the pilot-judgment

26 After the 2004 judment, new legislation was introduced in Poland and all the pending cases related to the original problem were settled. Case of Broniowski v. Poland (Appl. No. 31443/96), Judgment (Friendly settlement), Strasbourg, 28 September 2005.

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procedure. But since this is a new element in the Court’s operation, many questions will have to be answered by the organ itself – or by the states party to the Convention by adopting a new protocol in the future.

15.5

15.5.1

The Future? Protocol No. 15 and No. 16 Adopted in 2013

Speed above All? Protocol 15

A new possible provision was mentioned in the 2012 Brighton Conference declaration, later realized by Protocol 15. It called for the removal of the second safeguard clause from the admissibility criterion – apparently the aim of the states was to declare even more cases inadmissible to ease the Court of its workload. A draft Protocol 15 was adopted by CDDH in November 2012, which included a provision to delete the clause, and this stayed in the final text.27 Maybe it is worth mentioning that the Court in its opinion dated February 2013 has not felt it necessary to add a comment to this novelty, only that ‘the Court sees no difficulty.’28 Apparently it felt comfortable with this idea, which I find rather disappointing. In the previous chapter I have elaborated on the importance of the safeguard clauses – I see no reason here to rejoice on the abolishment of any of these deletions. Especially since this new provision may easily result in a wide gap in the human rights protection mechanism in respect of ‘lesser’ cases. Nor had the Court any remarks in relation to the reduction of the timeframe opened for lodging an application with the Court after a final national decision, a reduction from six months to four.29 The only thing the Court was concerned about was the public awareness and the spreading of information about this change. It seems that the Court does not share the idea that this amendment makes it harder for the public to access the Court – what’s more, the Court seems to support this idea. Though in general there is a convincing argument about the fact that four months shall suffice for making the decision to turn to Strasbourg just as much as six months did, but practical experience so far seems to indicate differently. The Court itself assists this: the new Rule 47 of the Rules of Court (in force as of 1 January 2014) will introduce important new rules to speed up the complaint procedure within the now existing six months: the most important change concerns the interruption of the period within which an application must be made to the Court. The new rule narrows down the possibility of interruption, effectively hampering the possibility

27 Protocol 15, Art. 5. 28 Opinion of the Court on Draft Protocol No. 15 to the European Convention on Human Rights, adopted on 6 February 2013. 29 Protocol 15, Art. 4.

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of submitting ‘stop the clock’ letters (temporarily incomplete complaints) in the future. For me it is no question, that this makes access to the court more difficult for the future. The Court has also welcomed the amendment barring parties to the case from objecting to chambers transferring cases to the Grand Chamber if they consider it necessary because of the possible outcome of the case being contrary to the Court’s practice.30 It sees this as ‘expediting the examination of important cases by removing one procedural step’. Obviously, the Court sees no problem with this, as the Protocol’s amendment widens its own possibilities by limiting possible actions of the parties to a given debate. While the Court’s interests are obvious and clearly understood, I would call upon the observance of some even higher interest here, and that is the quality of justice. Though it may be time-consuming, thorough professional-judicial debate on a given important human rights matter can be described with ‘the more, the better’. Especially when the question examined has to be analysed in a very complex sociological-cultural context, under sensitive political circumstances. Let me first refer to the Lautsi case: the Court’s Grand Chamber has revised its judgment rendered by the Chamber, related to crucifixes in public schools.31 I do not wish to enter into an analysis of the merits of the case, I would only like to draw attention to the immense political-legal debate that swept through Europe after the chamber’s judgment. I believe that this case clearly shows that in some cases the possibility of more judicial instances contributes positively to the settlement of human rights problems. Not so wellknown, but from a Hungarian (and Central/Eastern European post-communist) perspective the Vajnai case is equally important.32 The fact that the incumbent Hungarian government at the time had not initiated revision against the Court’s chamber judgment condemning the state for punishing an individual for publicly wearing the red star symbol may serve as a basis for a lot of criticism. Most of these cases are of political nature, but there is also a professional aspect to them: the lack of revision unfortunately stripped the Court of the possibility of re-examining the case. Again, I do not examine the merit of the case here, I merely refer to the importance of this possibility of the Court. Luckily, the new provision does not introduce an obligation for the Court, but takes away the instrument of the parties to the debate to stop it from happening – so in the end the Court’s practice will decide on the usefulness or harmfulness of this element of reform. The protocol’s amendment to the preamble of the Convention, related to the principle of subsidiarity and to the doctrine of the margin of appreciation raises even more questions. Even the Court has elaborated on this matter, and it has also recognised, that the adoption of this text was a result of a political compromise. The Court was careful in its wording, but I believe that it is safe to say that this is a mere political statement, ignoring the most 30 Ibid., Art. 3. 31 Case of Lautsi and others v. Italy (Appl. No. 30814/06), Judgment (Grand Chamber), Strasbourg, 18 March 2011. 32 Case of Vajnai v. Hungary (Appl. No. 33629/06), Judgment, Strasbourg, 8 July 2008.

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basic structural characteristics of the concept of international legal protection of human rights – while perfectly capable of satisfying the political needs of some Member States and governments, while representing a completely wrong and disfunctional response to the legitimate professional criticism towards the Court’s operation during the past two decades. From a professional aspect, the provision creates no real legal novelty. The margin of appreciation has been developed by well-established jurisprudence of the Court. Its practice has not been carved in stone or introduced into legally binding international treaties, but that would be an unrealistic expectation. It would render the system unable to react to sociological, cultural changes or to deal with the actual difference between some European states’ interpretations. The reference to the principle of subsidiarity is a bit strange in a Council of Europe human rights document – to say the least. It has been developed and applied in the context of the European Union, its role is to protect the sovereignty of the Member States against the competences transferred to the Union. Personally I believe that referring to it would be completely wrong in the context of the Strasbourg Court, the latter being an international body, exercising powers that are transferred to it explicitly – unlike the institutions of the EU which have to operate within a shared competences. Subsidiarity is important in those situations, but the European Court of Human Rights does not share any competence: when it receives an application, it handles it on its own, based on the explicit provisions of the Convention. That is why the requirement of exhaustion of domestic remedies is present, state sovereignty is applicable to a given case as long as the domestic judiciary does not deal with it any more – opening the way to the Strasbourg court. After that it is up to the Court to decide on the questions, and states have nothing else to do than to execute these decisions. There is simply no need for subsidiarity after domestic remedies have been exhausted. This argument is supported by a simple search in the HUDOC database: search to the keyword ‘subsidiarity’ results in only 350 hits,33 and in most cases it surfaces in governments’ arguments, not the Court’s reasoning. The Court itself has stated very early and later on, numerous times that the Convention has a subsidiary nature to domestic laws,34 but it has always used the term separately from its EU interpretational context and made it very clear, that it does not mean that it shall restrict itself in practicing its Convention-based jurisdiction. Some states party to the Convention seem to try and widen their space of manoeuvre against the Court’s activities, and to achieve this goal, they refer to their EU-related political 33 The search engine can be accessed at: http://hudoc.echr.coe.int. The actual search has been executed among judgments and decisions, to the keyword (text search): ‘subsidiarity’ in English language (10 December 2013). For comparison: a search for ‘margin of appreciation’ leads to 3152 results. 34 Case of Handyside v. United Kingdom (Appl. no. 5493/72), Judgment, Strasbourg, 7 December 1976, Para. 48; case of Akdivar and others v. Turkey (Appl. No. 21893/93), Judgment, Strasbourg, 16 September 1996, Para. 65; case of Schenk v. Germany (Appl. No. 42541/02). Decision on admissibility. Strasbourg, 9 May 2007.

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experience. As I have indicated earlier, personally I see a grave danger in inter EU political tensions poisoning the Council of Europe and the Court’s working environment. A first step in this is when some states apply the same criticism and the same communication elements – instead of a very careful and professionally sensitive approach to the Court and its operation.

15.6

New Kind of Advisory Opinions in the Future? Protocol 16

Protocol No. 16, the last amendment to the Convention, was adopted in June 2013. It aims to introduce a new procedure: the advisory opinion procedure. It makes it possible for highest domestic courts or tribunals of states party to the convention to request the Court to give advisory opinions on questions of principle relating to the interpretation or application of human rights protected by the Convention, but only in the context of a case pending before it. The idea seems capable of assisting a better national application of the rules of the Convention, which may result in fewer applications, which is an important goal. On the other hand, this possibility gives rise to a lot of questions. The Court in its opinion35 has raised some of these, but altogether seemed to support the idea. Personally, I do not see the real point in this possibility apart from the theoretical chance of the Court getting rid of cases even before the applicant would turn to it with a complaint. Obviously, the Court tries to avoid becoming an ‘extra’ level of appeal, and by examining a given case even before the domestic court would decide on it may have the effect that the applicant or the state understands and accepts the domestic decision better. Practically, there is a chance that this method will result in the decline of complaints, as many of the potential applicants may decide not to turn to the Court, if a negative outcome of the case can be foreseen. This is advantageous for the Court, but at the same time there is also a serious threat: the Court’s advisory opinions rendered in one specific case will be interpreted in similar domestic cases as well, and possible domestic interpretational mistakes may result in some cases potentially eligible for Strasbourg revision to stay away from the Court. Alternatively, other cases may end up at the Court. The possible consequences of the application of the margin of appreciation principle also seems problematic: it is very hard to imagine how to maintain a unified, single human rights practice, when the Court has the duty to interfere with the domestic judiciary before the final judgment is rendered – which can still be revised afterwards, practically duplicating the Court’s workload with that exact case.

35 Opinion of the Court on Draft Protocol No. 16 to the Convention extending its competence to give advisory opinions on the interpretation of the Convention, adopted by the Plenary Court on 6 May 2013.

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If we want to create a method by way of which the Court could really help domestic courts or the execution of the Convention’s norms, a procedure resembling the preliminary ruling procedure of the Court of Justice of the European Union (the court of the European Union, located in Luxembourg) would be a much more effective way. The fundamental difference is that a preliminary ruling – a legally binding judgment – may be requested on the applicable union law even at the first stage of the domestic procedure, and there is no need for the exhaustion of domestic remedies or a later revision. This way, the Court could consider and evaluate the theoretical human rights problem at an early stage of the domestic proceeding. The problem with this idea is that even though it is efficient, unfortunately its realisation is politically impossible, as it would seem to create a ‘federal-like’ human rights protection system, something, that reluctant states fear most.

15.7

Conclusion

The study argues that the all the reforms following 2000 may pose a threat to the powers of the Strasbourg court. The reforms introduced by Protocol 14 have mostly been evaded by the institution, and by its careful application, it has managed to use it to its advantage – to some extent at the cost of the efficiency of the Protocol. As a result, states have introduced further reforms in 2013, which are potentially even more problematic. With the new instruments entering into force, the Court will face a crucially new situation, far from being the most favorable. The future shaped by these Protocols will be very important not only for the Court, but also for the entire European human rights protection mechanism.

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Repetitive Cases before the Strasbourg Court: The Pilot Judgment Procedure at the European Court of Human Rights

Sándor Szemesi*

16.1

Introduction

In 2003 (the year before adopting Protocol No. 14, which contained a remarkable package of reform-measures) the European Court of Human Rights adopted 703 judgments (including all the chambers and the Grand Chamber as well), declaring 16,724 applications inadmissible, yet the Court received 38,810 new applications this year.1 In other words, 96% of the applications that were considered by the Court were deemed inadmissible in 2003. Moreover, almost 60% of the judgments delivered by the Court concerned so-called repetitive cases or routine applications that are well-founded (including cases concerning the length of judicial proceedings before national courts). Protocol No. 14 included at least three elemental reforms: strengthening the Court’s capacity to filter applications, adopting a new admissibility criterion (significant disadvantage) and adopting measures for dealing with repetitive cases.2 The filtering capacity is increased by rendering a single judge competent to declare inadmissible or strike off individual applications. The new admissibility criterion provides the Court with an additional tool which helps it to concentrate on cases which warrant an examination on the merits, by empowering it to declare inadmissible applications where the applicant has not suffered a significant disadvantage. And finally, the competence of the three-judge-committees is extended to cover repetitive cases, including both the admissibility and the merits of the case, if the Court already has a wellestablished case-law in this respect. Because of the late ratification by Russia, Protocol No. 14. entered into force only on 1 June 2010, and by 2010 the number of pending cases had risen to 139,650, while the Court’s adjudicative capacity remained limited. In 2009 57,100 new applications were

*

1 2

Associate Professor, University of Debrecen, Faculty of Law. E-mail: [email protected]. This research was supported by the European Union and the State of Hungary, co-financed by the European Social Fund in the framework of TÁMOP-4.2.4.A/ 2-11/1-2012-0001 ‘National Excellence Program’. European Court of Human Rights: Annual Report 2004, Strasbourg, 2005, p. 116. Explanatory Report to Protocol No. 14. to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention, Para. 36.

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submitted (almost 150% of the number of applications submitted in 2003), the Court delivered 2,395 judgments (340% of the 703 judgments delivered in 2003), and declared 33.065 applications inadmissible (198% of the 16,724 inadmissible applications in 2003).3 In this article I seek to analyze the so-called pilot judgment procedure developed by the European Court of Human Rights in an attempt to tackle the phenomenon of repetitive cases, a procedure that cannot be found in Protocol No 14 (only in Article 61 of the Rules of the Court).

16.2

Repetitive Cases – The Factual Background

Most of the cases before the European Court of Human Rights are in connection with the problem of the excessive length of proceedings before national courts. For example, until 31 December 2012, 43.99% of the Court judgments were in connection with Article 6 (1) (right to a fair trial, including the reasonable time requirement) of the Convention.4 Some states, especially Russia, Moldova and Ukraine, also have structural problems concerning the protection of human rights in prisons and ill-treatment by law-enforcement officials.5 After the Loizidou judgment,6 approximately 1,400 similar property cases brought primarily by Greek Cypriots against Turkey (post-Loizidou cases) were pending before the Court.

16.3

Legal Background

During the reflection period for Protocol No. 14, the European Court of Human Rights suggested7 the establishment of a pilot judgment procedure.8 The Steering Committee for Human Rights (CDDH) rejected the proposal of the Court and decided that it should not be included in Protocol No. 14, however the Committee of Ministers should make appropriate recommendations instead. According to the CDDH’s view, it was legally difficult to provide for a general legal obligation of this kind, and ‘the pilot judgment procedure could be followed without there being a need to amend the ECHR.’9

3 4 5

6 7 8 9

European Court of Human Rights: Annual Report 2009, Strasbourg, 2010, 139. Overview 1959-2012 ECHR, p. 4, www.echr.coe.int/Documents/Overview_19592012_ENG.pdf. J. Gerards, ‘The Pilot Judgment Procedure before the European Court of Human Rights as an Instrument for Dialogue, in M. Claes et al. (Eds.), Constitutional Conversations in Europe, Intersentia, Antwerp, 2012, p. 372. ECHR, Loizidou v. Turkey, judgment of 23 March 1995 (Appl. No. 15318/89). CDDH(2003)006. ECHR position paper of 12 September 2003, Paras. 43-46. Guaranteeing the Long-term Effectiveness of the European Court of Human Rights – Implementation of the Declaration adopted by the Committee of Ministers at its 112th Session (14-15 May 2003). Adopted by the CDDH on 8 April 2004.

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In the meantime, the Committee of Ministers adopted Resolution Res(2004)3,10 in which the Committee of Ministers invited the Court – to identify, as far as possible, in its judgments, when finding a violation of the Convention, what it considers to be an underlying systemic problem and the source of this problem, in particular when it is likely to give rise to numerous applications, so as to assist states in finding the appropriate solution and the Committee of Ministers in supervising the execution of judgments; – and to specifically notify any judgment containing indication of the existence of a systemic problem and the source of this problem not only to the state concerned and to the Committee of Ministers, but also to the Parliamentary Assembly, to the Secretary General and to the Council of Europe Commissioner for Human Rights, and to highlight such judgments in an appropriate manner in the database of the Court. According to the Preamble of this Resolution, the source of this obligation is Article 46 of the Convention, in which the High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. In my opinion the main question of this procedure is whether the state in question is ready to solve the systemic problem determined by the Court in its judgment – and I am not convinced that the Court (or the Council of Europe itself) has any obligatory legal instrument to enforce this statement of the pilot judgment. Indirectly, this non-obligatory nature follows from Recommendation Rec(2004)6 of the Committee of Ministers,11 in which the Committee of Ministers suggested that the High Contracting Parties review, following Court judgments which point to structural or general deficiencies in national law or practice, the effectiveness of existing domestic remedies and, where necessary, set up effective remedies, in order to avoid repetitive cases being brought before the Court. In its Recommendation the Committee of Ministers recalled directly the principle of subsidiary, which means that (in accordance with Article 1 of the Convention) the fundamental rights and freedoms guaranteed by the Convention be protected in the first place at national level and applied by national authorities. As I will demonstrate later, the main element of this pilot judgment procedure is that, when the Court chooses one leading case from the repetitive applications, it adjourns the other similar cases, and during this ‘adjournment period’ (including the examination period of the leading case until the delivery of the final judgment, and a reasonable time-limit determined by the Court in its final pilot judgment) the high contracting parties have the right (or, considering the right to an effective remedy incorporated into Article 13 of the Convention, are obliged) to create a new, effective remedy for the applicants in similar situations. In its partly dissenting opinion in the judgment of Hutten-Czapska

10 Resolution Res(2004)3 on judgments revealing an underlying systemic problem. 11 Recommendation Rec(2004)6 on the improvement of domestic remedies.

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Sándor Szemesi v. Poland12 judge Zagrebelsky stated that it is clear that the Court shall take into consideration the above mentioned Recommendations, but it cannot be overlooked that the legal basis of the proposals made by the Court in its judgments was not included in Protocol No. 14.

16.4

Broniowski Case: The First Swallow

Following World War II and the fixing of Poland’s new borders, the former Polish Eastern provinces (the so-called Borderlands) became part of the Soviet Union (more precisely, Belarus, Ukraine and Lithuania). Between 1944 and 1953 approximately 1.24 million persons were repatriated from this area, and the vast majority of them have been compensated, either by the granting of perpetual use of land, or with land belonging to the State. The applicant’s grandmother had been repatriated from Lviv (which city now belongs to the Ukraine) in 1947, and she received a certificate issued by the Polish State Repatriation Office which attested her ownership. The mother of the applicant inherited this entitlement and obtained a partial compensation in the form of a right to perpetual use of a land in Wieliczka in 1981. Jerzy Broniowski inherited the entirety of his mother’s property and claims following her death in 1989, and in 1992 he requested to be granted full compensation from the government. His claim was registered but could not be satisfied (the Supreme Administrative Court rejected his complaint). In 2002 the Constitutional Court declared several legal provisions of the Polish compensation mechanism unconstitutional and ordered their amendment. In 2003 the Polish government calculated the number of claimants and the value of their claims, stating that 4,120 claims were registered (of which 3,910 had been verified), in the value of 3 billion zloty. Additionally, there were 82.740 unverified claims pending registration, and the estimated value of these claims was 10.45 billion zloty.13 Taking into consideration the Polish government’s financial possibilities, some compensation for the loss of the claimant’s properties was awarded, but it was established that the amount constituted just 2% of the value of Mr. Broniowski’s grandmother’s property. Mr. Broniowski submitted his application to the former European Commission on Human Rights on 12 March 1996, alleging a breach of Article 1 of Protocol No. 1. (protection of property). On 26 March 2002 a chamber of the fourth section relinquished jurisdiction in favor of the Grand Chamber, and the Grand Chamber ordered on the same day that all similar applications pending before the Court be allocated to the fourth section, and their examination be adjourned until the judgment on the merits had been delivered. 12 Hutten-Czapska v. Poland, ECHR (2006) Grand Chamber judgment of 19 June 2006 (Appl. No. 35014/97). 13 M. Pia Carazo, ‘Broniowski case’, Max Planck Encyclopedia of Public International Law (2012), Para. 4. (www.mpepil.com).

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The Grand Chamber declared that Article 1 of Protocol No. 1. requires that the amount of compensation should be reasonable, and a much smaller than due compensatory amount could constitute a disproportionate interference with the right to property. Taking into consideration that Mr. Broniowski was only awarded 2% of the whole amount of compensation, the Grand Chamber concluded that Poland violated Article 1 of Protocol No. 1. Although at that time only 167 similar cases were pending before the Court, the Court realized that after its judgment (in which the violation of the right to property by the Polish Government was declared) 80,000 potential applicants might soon submit their claims. For this reason the Court found that the violation ‘originated in a widespread problem which resulted from a malfunctioning of Polish legislation and administrative practice and which has affected and remains capable of affecting a large number of persons.’14 The Grand Chamber stated that ‘general measures should either remove any hindrance to the implementation of the right of the numerous persons affected by the situation found to have been in breach of the ECHR or provide equivalent redress in lieu.’15 In the operative provisions of the judgment the Grand Chamber held particularly that the respondent state must, through appropriate legal measures and administrative practices, secure the implementation of the property right in question in respect of the remaining claimants or provide them with equivalent redress.16 It is not indicated anywhere in the judgment that this would be a pilot judgment, however it contains the most important characteristics of a pilot judgment as follows: – a finding that the facts of the case disclose the existence, within the relevant legal order of a shortcoming as a consequence of which a whole class of individuals have been or are still denied their ECHR rights; – a conclusion that these deficiencies in national law and practice may give rise to numerous subsequent well-founded applications; – recognition that general measures are called for and some guidance as to what such general measures may be; – an indication that such measures should have retroactive effect; – a decision to adjourn consideration of all pending applications deriving from the same cause.17 The applicant had requested 990,000 zloty in compensation for the loss of his right to property, and a further € 12,000 for the non-pecuniary damage arising out of the state of

14 Broniowski v. Poland, ECHR (2004) Grand Chamber judgment of 22 June 2004 (Appl. No. 31443/96), Para. 189. 15 Broniowski v. Poland, ECHR (2004), Para. 194. 16 Broniowski v. Poland, ECHR, Para. 198. 17 C. Paraskeva, ‘Human Rights Protection Begins and Ends at Home: The “Pilot Judgment Procedure” Developed by the European Court of Human Rights’, 3 Human Rights Law Commentary (2007), p. 9.

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uncertainty, stress and frustration from his inability to enjoy his right to property, and requested 125,000 zloty for costs and expenses. The Grand Chamber concluded that it was not ready to take a decision concerning just satisfaction, and invited the parties to submit their written submissions in this respect within six months. Following the judgment on the merits, the Polish Constitutional Court declared several provisions of the law concerning the compensation adopted in 2003 unconstitutional, and following this the government submitted a new bill to the parliament on the realization of the right to compensation. The new act (adopted by the Parliament in 2005) proposed that claimants should be given 20% of the original value of their property in compensation either by an auction procedure or through cash payment from a special compensation fund. After the adoption of this new act, Mr. Broniowski and the Polish government agreed on a friendly settlement covering the issue of just satisfaction, in which the government accepted to pay 20% of the value of the property as compensation, and Mr. Broniowski agreed not to seek further damages from Poland and waived any further claims in Polish civil courts or any international body. On 4 December 2007 in its decisions striking off the cases Wolkenberg and others18 and Witkowska-Tobola19 the Court established that the new compensation scheme adopted by the Polish Parliament satisfied the requirements set out in the Broniowski judgment. Subsequently, the Court struck off the remaining cases.

16.5

Pilot Judgment in the Rules of the Court

The final declaration of the February 2010 Interlaken Conference requested the Court to ‘develop clear and predictable standards for the pilot judgment procedure as regards selection of applications, the procedure to be followed and the treatment of adjourned cases.’ In March 2011 (seven years after the Broniowski judgment) the Court added a new rule (Rule 61) to its Rules of Court, codifying the rules of the pilot judgment procedure, as the Interlaken Conference requested. The main elements of this new rule are the followings: – The Court shall consult the applicant and the responding government before starting the pilot judgment procedure; – The Court shall identify the type of remedial measures the state concerned is required to take at national level, imposing a time-limit on the adoption of these measures, and may adjourn similar pending cases by that time; – When a state fails to abide by a pilot judgment, the Court will normally resume examination of the adjourned cases. 18 Wolkenberg and others v. Poland, ECHR (2012), decision of 12 April 2012 (Appl. No. 50003/99). 19 Witkowska-Tobola v. Poland, ECHR (2012), decision of 12 April 2012 (Appl. No. 11208/02).

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According to the Court’s press release, the pilot procedure has three aims: to help the fortyseven European States which have ratified the European Convention on Human Rights to resolve systemic or structural problems at national level; to provide redress more quickly for the individuals involved; and, to help the European Court of Human Rights deal more efficiently and quickly with its caseload, by reducing the number of similar, usually complex, cases it needs to examine in detail.20 The Court bases its pilot judgments not only on Rule 61 of the Rules of Court, but on Article 41 and 46 of the Convention. Article 46 provides that state parties are legally bound ‘to abide by the final judgment of the Court in any case to which they are parties.’ It is true that traditionally the Court had restricted itself to finding violations and sometimes ordering just satisfaction under Article 41 of the Convention. However, as the Court interpreted Article 46 in the Broniowski judgment Not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects. Subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment.21 Obviously, individual compensation cannot solve the problems of people in comparable situations, and this new interpretation of the above mentioned article follows from the doctrine of living instrument: ‘the Convention is a living instrument which … must be interpreted in the light of present-day conditions.’22

16.6

Pilot Judgments from the Broniowski Case until the End of 2013

Starting with the Broniowski case the Strasbourg Court applied the pilot judgment procedure in 18 other cases, and two other cases (one of them launched against Hungary) are in progress.23 Taking into consideration the relatively small number of cases it is useful to

20 ECHR, Press Release No. 256 issued by the Registrar of the Court, 24 March 2011. 21 Broniowski v. Poland, ECHR, Para. 192. 22 See e.g., Tyrer v. the United Kingdom, ECHR (1978), Judgment of 25 April 1978 (Appl. No. 5856/72), Para. 31. 23 Factsheet – pilot judgments, www.echr.coe.int/Documents/FS_Pilot_judgments_ENG.pdf.

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tabulate these cases. In my view, pilot judgments are only the cases in which the Court determines some systematic problems and orders special remedial measures to the government in the operative part of the judgment. There are other important cases in which the Court only calls the government’s attention to structural problems in the reasoning part of the judgment, these cases, in my opinion, can only be regarded as quasi-pilot judgments.24 Case

Structural problem

Order of the Court

Number of similar cases / Following-up

Broniowski v. Poland (22 June 2004, Grand Chamber, Appl. No. 31443/96)

After Poland’s eastern border had been redrawn after the World War II, Poland undertook to compensate Polish citizens who had been repatriated. A whole class of individuals (some 80,000 people) had not received the compensatory property or an amount for compensation – Article 1 of Protocol No. 1 of the Convention

The Polish Government has to ensure, through appropriate legal and administrative measures, the implementation of a property right in respect of the remaining ‘Bug River claimants’ or provide them with equivalent redress in lieu

More than 200 similar applications, which had been adjourned. Poland passed a new law in July 2005 providing for financial compensation for properties abandoned beyond the Bug River. The Court found that this new law and the compensation scheme were effective, so the Court struck off all the similar applications25

Hutten-Czapska v. Poland (19 June 2006, Grand Chamber, Appl. No. 35014/97)

Deficiencies in the rentcontrol provisions of the housing legislation (the system imposed a number of restrictions on landlords’ rights, in particular setting a ceiling on rent levels, which was so low that landlords could not even recoup their maintenance costs, let alone make a profit) – Article 1 of Protocol No. 1 of the Convention

The Polish Government had to secure in the Polish domestic legal order a mechanism maintaining a fair balance between the interests of landlords and the general interest of the community, in accordance with the principles of the protection of property rights under the Convention (without deadline)

18 similar applications (but the Court estimated that about 100,000 landlords were potentially concerned). In March 2011 the Court closed the procedure after Poland had changed its laws in a way that landlords could recover the maintenance costs for their property and make a decent profit

Burdov v. Russia (no. 2.) (15 January 2009, Appl. No. 33509/04)

The Russian State failed to execute judgments (domestic judgments awarding the applicants social benefits) – Article 6 and 13 of the Convention

The Russian authorities had to produce within 6 months an effective domestic remedy which would secure adequate and sufficient redress for non- (or delayed)

More than 200 similar cases. Russia adopted a new act which provided that an application could be made to the domestic courts for compensation for delayed enforcement of

24 Sometimes these quasi pilot judgments are mentioned as ‘normal’ ones. See e.g. P. Leach et al. (Eds.), Responding to Systemic Human Rights Violations. An Analysis of ‘Pilot Judgments’ of the European Court of Human Rights and their Impact at National Level, Intersentia, Antwerp-Oxford-Portland, 2010, pp. 24-25. 25 Wolkenberg and Others v. Poland, ECHR (2007), inadmissibility decision of 4 December 2007 (Appl. No. 50003/99).

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Case

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Order of the Court

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enforcement of domes- judgments. Applicants tic judgments shall exhaust this new domestic remedy26 Olaru and Others v. Moldova (28 July 2009, Appl. Nos. 476/07, 22539/05, 17911/08 and 13136/07)

Moldovan social housing legislation bestowed privileges on a very wide category of persons, but because of the chronic lack of funds available, final judgments awarding social housing were rarely enforced – Article 6 and 13 of the Convention

The Moldovan authorities had to set up an effective domestic remedy for non- (or delayed) enforcement of domestic judgments concerning social housing within six months, and had to grant redress to all victims of non-enforcement in cases lodged with the Court before delivery of this judgment within one year

The number of cases in progress is unknown. All similar cases were adjourned. The Moldovan Government reformed its legislation by introducing a new domestic remedy in July 201127

Yuriy Nikolayevich Ivanov v. Ukraine (15 October 2009, Appl. No. 40450/04)

An army veteran complained of the prolonged non-enforcement of judgments ordering the authorities to pay him retirement payment arrears – Article 6 and 13 of the Convention

One or more effective remedies capable of affording adequate and sufficient redress for non- (or delayed) enforcement of domestic judgments within one year

More than 2,000 similar applications pending (1,000 new applications since 1 January 2011). On 21 February 2012 the Court noted that the Ukraine had not adopted the required general measures, therefore, the Court decided to resume the examination of similar applications28

Suljagic v. Bosnia and Herzegovina (3 November 2009, Appl. No. 27912/02)

Systemic problem due to deficiencies in the repayment scheme for foreign currency deposited before the dissolution of the Socialist Federal Republic of Yugoslavia – Article 1 of Protocol No. 1 of the Convention

The Government of Bosnia and Herzegovina had to ensure that government bonds were issued, outstanding installments and default interest were paid within six months

More than 1,350 similar cases were pending before the Court. The Government of Bosnia and Herzegovina adopted the necessary laws. The examination of this case was closed in 201129

Rumpf v. Germany (2 September 2010, Appl. No. 46344/06)

Excessive length of proceedings before the administrative courts (consistently observed by the Court since

The German Government had to introduce an effective domestic remedy capable of affording redress for

55 similar cases were pending. Germany adopted the necessary modifications

26 Nagovitsyn and Nalgiyev v. Russia, ECHR (2010), inadmissibility decision of 24 September 2010 (Appl. Nos. 27451/09 and 60650/09). 27 Balan v. Moldova, ECHR (2012), inadmissibility decision of 10 February 2012 (Appl. No. 44746/08). 28 ECHR Press Release 086 (2012), 29 February 2012. 29 Resolution CM/ResDH(2011)44.

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Case

Structural problem

Order of the Court

Number of similar cases / Following-up

2006) – Article 6 and 13 excessively long court of the Convention proceedings before administrative courts within one year Maria Atanasiu and Others v. Romania (12 October 2010, Appl. Nos. 30767/05 and 33800/06)

Ineffectiveness of the system of compensation or restitution of property nationalized or confiscated by the Romanian State before 1989. – Article 1 of Protocol No. 1 of the Convention

General measures should be put in place to secure effective and rapid protection of the right to restitution within eightteen months

267 similar cases were pending. The Court adjourned all applications stemming from the same problem. The Government requested that the time-limit be extended by 9 months, and the Court decided to grant the request and deferred the deadline until 12 April 2013. A new act was adopted by the Parliament on 22 April 2013

Greens and M.T. v. the United Kingdom (23 November 2010, Appl. Nos. 60041/08 and 60054/08)

UK legislation imposes a blanket ban on voting for convicted prisoners in detention. The United Kingdom had still not amended its legislation five years after Hirst (No. 2.) judgment.30 – Article 3 of Protocol No. 1 of the Convention

The Government had to introduce legislative proposals for bringing electoral law into line with the Hirst (No. 2.) judgment within six months

The Court received almost 2,500 similar applications, these were adjourned. The deadline given to the United Kingdom authorities to introduce legislative proposals expired on 11 October 2011, but was extended until 22 November 2012. The Court decided to resume the examination of the 2,281 similar applications against the United Kingdom on 23 October 201331

Athanasiou and Others v. Greece (21 December 2010, Appl. No. 50973/08)

Excessive length of proceedings before the administrative courts and the lack of a remedy in this respect (between 1999 and 2009 the Court had delivered about 300 similar judgments) – Article 6 and 13 of the Convention

The Greek Government had to introduce an effective remedy capable of affording adequate and sufficient redress where the length of proceedings before the administrative courts had exceeded a reasonable time within one year

The number of cases in progress is unknown. A law on fair proceedings without a reasonable time entered into force in April 2012, which introduced two effective and accessible remedies.32

30 Hirst (No. 2) v. the United Kingdom, ECHR (2005), Grand Chamber judgment of 6 October 2005 (Appl. No. 74025/01). 31 See the Court’s letter of 23 October 2013 addressed to the Committee DH-DD(2013)1151. 32 Techniki Olympiaki A.E. v. Greece, ECHR (2013), inadmissibility decision of 1 October 2013 (Appl. No. 40547/10).

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Case

Structural problem

Order of the Court

Number of similar cases / Following-up

Dimitrov and Hamanov v. Bulgaria (10 May 2011, Appl. Nos. 48059/06, and 2708/09) and Finger v. Bulgaria (10 May 2011, Appl. No. 37346/05)

Deficiencies in the justice system – excessive length of civil and criminal proceedings and the lack of a remedy in this respect – Article 6 and 13 of the Convention

The Bulgarian Government had to introduce an effective remedy in respect of unreasonably long criminal proceedings and a compensatory remedy in respect of unreasonably long criminal and civil proceedings within 12 months

The number of cases in progress is unknown. The judiciary act of 2007 and the state and municipalities liability for damage act of 1988 were amended to introduce two new compensatory remedies (one administrative and one judicial). These remedies could be regarded as effective33

Ananyev and Others v. Russia (10 January 2012, Appl. Nos. 42525/07 and 60800/08)

Disfunction in the prison system, inadequate conditions of detention (acute lack of personal space in the cells, shortage of sleeping areas, limited access to light and fresh air, non-existent privacy when using the sanitary facilities) – Article 3 and 13 of the Convention

The Russian authorities had to produce within 6 months a binding time frame for implementing preventive and compensatory measures in respect of the allegations of violations of Article 3

Over 250 similar cases pending (the Court has not adjourned them, because of the fundamental nature of the right not to be treated inhumanly or degradingly), and more than 80 similar judgments since 2002

Ümmühan Kaplan v. Length of court proceed- The Turkish GovernTurkey (20 March 2012, ings (in administrative, ment had to put in Appl. No. 24240/07) civil, criminal and place an effective remcommercial cases and edy affording adequate before the employment and sufficient redress and land tribunals) was within one year – but excessive. The present only with regard to the case had been started in applications pending 1970 by the applicant’s before the Court and father before the land lodged by 22 September tribunal – Article 6 and 2012 (from this date the 13 of the Convention right of individual petition to the Turkish Constitutional Court would take effect)

330 pending applications already communicated to the Government, and 2,373 pending applications not yet communicated. The Turkish Grand National Assembly enacted Law no. 6384 on the settlement (by a compensation award) of a length of proceedings applications. The Court declared this remedy as effective and accessible34

Michelioudakis v. Greece (2 April 2012, Appl. No. 54447/10)

More than 250 applications pending (50 of them are cases concerning the length of criminal proceedings). The Court froze its examina-

Deficiencies in the justice system at the root of excessive length of proceedings (since 2007 more than 40 judg-

The Greek Government had to institute a domestic remedy in respect of the length of proceedings before the

33 Valcheva and Abrashev v. Bulgaria, ECHR (2013), inadmissibility decision of 18 June 2013 (Appl. Nos. 6194/11 and 34887/11). 34 Müdür Turgut and Others v. Turkey, ECHR (2013), inadmissibility decision of 26 March 2013 (Appl. No. 4860/09).

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Case

Structural problem

Order of the Court

Number of similar cases / Following-up

ments found violations criminal courts within of Article 6 on account one year of the length of proceedings before the criminal courts) – Article 6 and 13 of the Convention

tion of similar cases for one year. On 18 June 2013 the Court granted a request for an extension of about 7 months (until 30 January 2014)

Kuric and Others v. Slovenia (26 June 2012, Grand Chamber, Appl. No. 26828/06)

The Slovenian authorities had failed to remedy comprehensively and with the requisite promptness the situation of the ‘erased’ (a group of former nationals of the Socialist Federal Republic of Yugoslavia who lost their status after Slovenia’s independence, because they had not applied for Slovenian citizenship or their request had not been granted). – Article 8 of the Convention

The Slovenian Government had to set up a compensation scheme for the ‘erased’ in Slovenia within one year

In 2009, 13,426 of the ‘erased’ still had no regulated status in Slovenia. The number of cases before the Court is unknown. The Court decided it would adjourn examination of all similar applications before the Court. The Slovenian authorities requested the extension of the deadline until 26 June 2014, however the Court decided not to grant this request. (The Slovenian Parliament adopted a new act on 21 November 2013)

Manushaqe Puto and Others v. Albania (31 July 2012, Appl. Nos. 604/07, 34770/09, 43628/07 and 46684/07)

Non-enforcement of administrative decisions awarding compensation for property confiscated under the communist regime in Albania. – Article 1 of Protocol No. 1 of the Convention

Albania has to take general measures in order to effectively secure the right to compensation within 18 months. (The Court urged the authorities to start making use of other alternative forms of compensation as provided for under Albanian legislation in 2004, instead of relying heavily on financial compensation)

There were 80 similar cases pending before the Court. In December 2013 the Committee of Ministers welcomed the political will and the commitment of the newly elected Government to adopt all necessary measures to set up a compensation mechanism within the deadline set by the Court

Glykantzi v. Greece Deficiencies in the (30 October 2012, Appl. Greek legal system at on No. 40150/09) the root of excessive length of proceedings in the civil courts (from 1999 to 2009 the Court delivered about 300 judgments finding the duration of judicial proceedings excessive) – Article 6 and 13 of the Convention

The Greek Government had to put in place an effective remedy that could provide appropriate and sufficient redress in such cases of excessively lengthy proceedings within one year

Over 250 applications against Greece (including 70 that specifically concern civil cases) are pending. The Court adjourned the examination of all cases which solely relate to the length of civil proceedings in the Greek courts

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Case

Structural problem

Order of the Court

Number of similar cases / Following-up

Torreggiani and Others v. Italy (8 January 2013, Appl. Nos. 43517/09, 35315/10, 37818/10, 46882/09, 55400/09, 57875/09 and 61535/09)

Overcrowding of prisons / conditions of detention – Article 3 of the Convention

The Italian Government must put in place within one year an effective domestic remedy and adequate and sufficient redress

Hundreds of applications pending, the examination of these applications dealing solely with overcrowding in prisons would be adjourned

Alisic and Others v. Bosnia and Herzegovina, Croatia, Former Yugoslav Republic of Macedonia, Serbia and Slovenia (hearing of the Grand Chamber on 18 March 2013, Appl. No. 60642/08)

The applicants were unable to recover their ‘old’ foreign-currency savings (deposited with two banks in what is now Bosnia and Herzegovina) following the dissolution of the former Socialist Federal Republic of Yugoslavia – Article 1 of Protocol No. 1 of the Convention

Slovenia and Serbia should undertake all necessary measures in order to allow the applicants and all others in their position to be paid back their ‘old’ foreign currency savings under the same conditions as those who had such savings in domestic branches of Slovenian and Serbian banks within 6 months

More than 1,650 similar applications, involving more than 8,000 applicants. The Court adjourned the examination of all similar cases. The case was referred to the Grand Chamber at the request of the Governments of Serbia and Slovenia. The Grand Chamber held a hearing on 10 July 2013 (no Grand Chamber judgment has been brought as of yet)

M.C. and Others v. Italy It was impossible for (3 September 2013, 162 Italian nationals Appl. No. 5376/11) (who were all contaminated by viruses as a result of blood transfusions or the administration of blood derivatives) to obtain an annual adjustment of the supplementary part of a compensation allowance paid to them following accidental contamination as a result of blood transfusions or the administration of blood derivatives. – Article 6, 14 and Article 1 of Protocol No. 1 of the Convention

Italy had to set a specific time-limit within which it undertook to secure the effective and expeditious realization of the entitlements in question, and had to pay compensation for every person affected within 6 months

The number of similar cases is unknown. All similar applications were adjourned for a period of one year

Hungarian pension cases (in progress)

See below – Article 1 of In progress Protocol No. 1. and Article 14 of the Convention

More than 8,000 applications

It is interesting that at the moment there is a pilot judgment procedure in progress against Hungary, as the press release of the Court dated 11 January 2012 stated.35 Since mid35 ECHR Press Release 009 (2011), 11 January 2012.

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December 2011, the Court has received almost 8,000 individual applications against Hungary relating to the pension rights of former law enforcement officers (policemen, etc.) who benefited from early retirement. The common legal background of these applications was Act No. CLXVII of 2011 on the Termination of Old-Age Pension before Retirement Age, on Benefit Prior to Retirement Age and on Service Allowance, the act prescribing that the applicants’ retirement pensions are taxable by 16% income tax (previously no pensions in Hungary were subject to income tax). According to the applicants, this act constituted a violation of their right to peaceful enjoyment of their possessions and it is also discriminatory in comparison with other groups (Article 1 of Protocol No. 1 and Article 14 of the Convention). According to the press release, the Court will identify one or more applications as leading cases, and will examine these cases while it will not take any procedural steps in relation to the other applications. At the moment there is no information available about any procedural steps taken in these cases, although these applications were submitted 2 years ago.

16.7

Commentary of the Past Period of Cases on Pilot Judgments of the European Court of Human Rights

Leo Zwaak has argued that human rights violations first of all should be redressed at the domestic level and the Strasbourg Court should only be used as an ultimum remedium.36 The pilot judgment procedure is based on the assumption that once a judgment pointing to a structural or systemic problem has been delivered, and where numerous applications raising the same problem are pending or likely to be brought before the Strasbourg Court, the respondent state should ensure that applicants, actual or potential, have an effective remedy that will enable them to bring their case before a competent national authority.37 A very important impact of this procedure is that the case-load of the European Court of Human Rights can also be reduced if domestic remedy is available to other individuals who are also affected by the systemic problem determined by the Court in its pilot judgment. Luzius Wildhaber (former president of the Court) emphasized that ‘if the national authorities are in the position to apply ECHR case-law to the questions before it, then much, if not all, of the Strasbourg Court’s work done.’38 The Group of Wise Persons in their report to the Committee of Ministers encouraged the Court to use the pilot judgment

36 L. Zwaak, Overview of the European Experience in Giving Effect to the Protections in European Human Rights Instruments, Working Session on the Implementation of International Human Rights Protections, at p. 14. Available at: http://internationaljusticeproject.org/pdfs/Zwaak-speech.pdf. 37 Paraskeva op. cit., p. 14. 38 L. Wildhaber, ‘The Role of the European Court of Human Rights: An Evaluation’, 8 Mediterranean Journal of Human Rights (2004), p. 12.

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procedure as far as possible in the future.39 As of today only a couple of pilot judgment procedures have been finalized, but there are some common points in these procedures. Luzius Wildhaber determined eight characteristics of this procedure in 2009 as follows: – the finding of a violation by the Grand Chamber which reveals that within the state concerned there is a problem which affects an entire group of individuals; – a connected conclusion that that problem has given rise to or may give rise to many other applications to be lodged in Strasbourg; – giving guidance to the state on the general measures that need to be taken to solve the problem; – indication that such domestic measures work retroactively in order to deal with existing comparable cases; – adjourning of all pending cases on the same issue by the Court; – using the operative part of the pilot judgment to reinforce the obligation to take legal and administrative measures; – deferring any decision on the issue of just satisfaction until the state undertakes action; – informing the main Council of Europe organs (Committee of Ministers, the Parliamentary Assembly, and the Human Rights Commissioner) on the progress in the pilot case.40 Four years later we can state that considering the case-law there are only four pilot judgments delivered by the Grand Chamber (more precisely, after the first two pilot judgments were delivered by the Grand Chamber, there are only two from the total of 19 cases, and in one of them the respondent government asked the referral of the case to the Grand Chamber). It is true that most of the pilot judgment cases are in connection with Article 6 of the Convention (length of the procedure before national courts), but taking into consideration the great importance of this procedure, it would be worth considering to secure the right to apply the pilot judgment procedure only to the Grand Chamber – as Wildhaber suggested. It seems that there is no formal mechanism for selecting pilot judgments (including the question of which will be the leading case after the Court decided to apply the pilot judgment procedure). Moreover, considering the case-law it when applying the pilot judgment procedure, is not necessary for a great number of similar applications to be already pending before the Court. For example, in the case of Hutten-Czapska there were only 18 comparable cases pending – although it is true that the issue affected around 100,000 landlords in similar situations. It depends on the systematic problem (and the right affected) whether the Court 39 Report of the Group of Wise Persons to the Committee of Ministers, 15 November 2006, CM (2006) p. 203. 40 See L. Wildhaber, ‘Pilot Judgments in Cases of Structural or Systemic Problems on the National Level’, in R. Wolfrum and U. Deutsch (Eds.), The European Court of Human Right Overwhelmed by Applications: Problems and Possible Solution, Springer Verlag, Berlin, 2009, p. 71.

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adjourns similar pending cases or not: for example, in the Ananyev and others case (inadequate prison conditions) the Strasbourg Court did not adjourn the pending 250 similar cases, because of the fundamental nature of the right not to be treated inhumanly or degradingly. Taking into consideration that many pilot judgments are in connection with the length of procedure before national courts, freezing an application at the international level could be at least be qualified as ironic.41 It is very important that the Court not only identifies the systemic problem in the operative part of the judgment and gives explicit guidance to the respondent state, but most of the pilot judgments include a time limit within which the state has to effect domestic changes. At the moment there are only two cases in which the respondent state missed the deadline (Yuriy Nikolayevich Ivanov v. Ukraine and Greens and M.T. v. the United Kingdom), and in these cases we can see the Court’s possibilities if the respondent state does not want to follow the Strasbourg Court’s strong suggestions: in both of the above mentioned cases the Strasbourg Court decided to resume the examination of the adjourned pending applications after the deadline elapsed. According to Article 30 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, the State responsible for the internationally wrongful act is under an obligation to offer appropriate guarantees of non-repetition. Although the system of responsibility established by the European Convention of Human Rights can be regarded as lex specialis, we can state that the pilot judgment procedure is in accordance with the provisions of the lex generalis Draft Articles, changing the possible role of the European Court of Human Rights.

41 A. Buyse, ‘The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges. A Tribute to Fifty Years of the European Court of Human Rights’, Nomiko Vima (The Greek Law Journal), Athens Bar Association (2010), p. 90.

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Zsuzsa Szakály*

17.1

Introduction

In the states where the rule of law guarantees the framework of human rights, their warranties can be traced in several contexts, and they are interconnected. International, regional and national legal frameworks interact with each other.1 The role that these respective systems play in human rights protection on their own, however, cannot be overemphasized, because the three levels establish a comprehensive network of protection as a token of the nowadays omnipresent multilevel constitutionalism. In my paper, first, I examine the international level of human rights protection with the United Nations (UN) framework in the centre, then I move on to the regional level, focusing on the European structures of protection. Afterwards, I analyse the national level, shedding light on some institutions of Hungary, then I provide a short outlook on the means of protection for fundamental rights available in civil matters. Finally, I examine the possibility of the use of the so-called ‘eternity clause’ in a human rights context, because in my view it could help create a more stable system to safeguard the rule of law.

17.2

International Level

An average European country, e. g., Hungary is a signatory of minimum fifty human rights’ treaties nowadays.2 These frameworks contain many similarities and many differences sometimes resulting in collisions, but their purpose is the same: developing the global human rights’ system. One of the first organizations was the League of Nations (1919), but World War II proved that this was a fragile system, and the nations of the world tried to find a better solution to prevent the outbreak of an eventual World War III. This solution *

1 2

PhD candidate, University of Szeged, Faculty of Law and Political Sciences. E-mail: [email protected]. This study is based on my lecture presented on the XVII. International Conference of Young Scholars, in the University of Economic, Prague, Faculty of International Relations ‘Collective Memory and International Relations’ in Prague on 24 May 2013. N. Chronowski, ‘Alapjogvédelem, nem csak uniós fokon’, 1 Fundamentum (2009), p. 80. T. Molnár, ‘A nemzetközi szervezetek határozatainak beépülése és helye a magyar jogban, különös tekintettel az ENSZ Biztonsági Tanácsának határozataira’, LXVI(6) Jogtudományi Közlöny (2011), p. 340.

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was the creation of the UN, which fulfilled the expectations – according to some – and improved human rights’ protection to a previously inconceivable level. The UN was created as an effort aimed at creating better methods of protecting human rights after the outrageous gross human rights violations of World War II. The first important instrument on this path was the adoption of the Universal Declaration of Human Rights (UDHR)3 in 1948, which marked the beginning of a new era. The most significant effect of the UDHR was that it caused human rights protection to become an international cause.4 It was followed by many conventions, and some of the most significant instruments became the ‘International Bill of Human Rights’: UDHR, the International Covenant on Civil and Political Rights (ICCPR),5 and the International Covenant on Economic, Social and Cultural Rights (ICESCR).6 One might think of them as micro-constitutions, the ‘restrictional purpose of which is lodged into the national rule of law.’7 Nevertheless, the magnitude of the UDHR is still one of the greatest, and according to certain opinions it shall be considered as the authentic interpretation of the human rights’ provisions of the UN Charter, because the UN Charter does not determine the content of Articles 55-56.8 To guarantee the emergence of these principles, the UN established specialized organs and bodies. The most significant of these was the United Nations Commission on Human Rights (UNCHR) from 1946, and during its operation, it was able to ‘demonstrate serious results in the fields of norm creation, development and protection for international human rights’; however, the political interests of the nations, in reality, prevented any substantive advancement.9 That was one of the main reasons for the rejuvenation of the organization inter alia: the UN General Assembly admitted in one of its Resolutions that ‘Recognizing the work undertaken by the Commission on Human Rights and the need to preserve and build on its achievements and to redress its shortcomings,’ are important priorities.10 There were several concepts about the reorganization, but in the end, as usual, they had to compromise,11 and the United Nations Human Rights Council (UNHRC) was thus founded in 2006.12

3 4

The Universal Declaration of Human Rights, 1948. M. Weller, Emberi jogok és európai integráció, Emberi Jogok Magyar Központja Közalapítvány (Acta humana studiosorum), Budapest, 2000, p. 34. 5 International Covenant on Civil and Political Rights, 16 December 1966. 6 International Convenant on Economic, Social and Cultural Rights, 16 December, 1966. On this purpose, we have to distinguish the ‘Charter-based procedures’ and ‘treaty-based procedures’. G. Halmai and G.A. Tóth, Emberi jogok, Osiris, Budapest, 2003, pp. 139-181. 7 G. Kajtár, ‘Fórum’, 1 Fundamentum (2009), p. 54. 8 G. Kardos, ‘A nemzetközi emberi jog diszkrét bája’, 4 Fundamentum (1998), p. 8. 9 I. Lakatos, ‘Az ENSZ Emberi Jogi Tanácsa – vágyak és realitások’, 1 Fundamentum (2007), p. 87. 10 GA Res. 60/251, 3 April 2006. 11 Lakatos, 2007, pp. 92-93. 12 GA Res. 60/251, 3 April 2006.

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The UNHRC has multifarious processes for human rights protection, some inherited from the UNCHR, but in the centre of interest one can find the Universal Periodic Review (UPR), functioning since 2008.13 This review became one of the greatest innovations of human rights protection because every UN Member State was obliged to accept the fact of monitoring.14 However, the question remains: can it function in a fashion as it was contemplated? We cannot be able to decide on the answer yet because the process has only been put into practice in the past five years and a solid and well-founded assessment requires more time. At this point the Social, Humanitarian Cultural Committee (Third Committee) of the UN General Assembly, having jurisdiction over ‘a range of social, humanitarian affairs and human rights issues that affect people all over the world’, shall also be mentioned. Every Member State of the UN is represented in this committee; that is why the UNHRC has fewer members.15 The UN Security Council (UNSC) can also be linked to human rights protection, because it can take measures, e.g. adopt a list of the (financial) supporters of terrorism and freeze their assets. This causes a collision between the international and the regional level, because the decisions of the UNSC bind the Member States, albeit these resolutions do not have legal remedies, not even the International Court of Justice has undisputedly jurisdiction to examine the legality of these decisions.16 That was the reason why the Court of Justice of the European Union (CJEU) also had to take a stand in this matter – navigating among relevant procedural rules – and choose between these two options in observing the above international obligations.17 Notably, the CJEU did so in the landmark Kadi and Yusuf cases in the context of the war on terror.18 Another path of human rights protection is linked to the Office of High Commissioner for Human Rights (OHCHR), which organizes several activities in the Member States such as monitoring and provision of technical assistance.19 Under the aegis of the UN one can find several committees protecting human rights by monitoring implementation of some human rights treaties (treaty-bodies), e.g.: the Committee against Torture, the Committee

13 V. Haász and M. Szappanyos, ‘Az ENSZ tagállamok emberi jogi helyzetét értélekő egyetemes időszakos felülvizsgálat (UPR)’, IV(1) Föld-rész (2011), p. 71. 14 Haász and Szappanyos, 2011, p. 73. 15 Lakatos, 2007, p. 89. 16 T. Lattmann, ‘Fórum’, 1 Fundamentum (2009), p. 50. 17 Other question is the choice between the rule of law and the effective fight against terrorism. See: A. Jakab, ‘Breaching Constitutional Law on Moral Grounds in the Fight against Terrorism? Implied Presuppositions and Proposed Solutions in the Discourse on “the Rule of Law vs. Terrorism”’, 9(1) International Journal of Constitutional Law (2011), pp. 65-68. 18 Judgment of the Court (Grand Chamber) of 3 September 2008. Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, 2005. 19 OHCHR in the World: making human rights a reality on the ground.

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on the Elimination and Discrimination against Women, the Committee on the Rights of a Child, the Committee on Forced Disappearances. Of course, the International Court of Justice also considered the issues of human rights protection, and it ‘[…] has had an important involvement in the development of a modern law of international human rights […].’20 The system of the UN on human rights protection is very diverse; nevertheless, the equal implementation of the different elements could cause difficulties on the international level of human rights protection, because it is very substantial, but very sensitive in the same time: international interests are always affected by the national ones. No country can exercise public power without due respect for human rights, not even the ones with questionable (illiberal) practices in this respect, but until there are countries which prioritise their own interests instead of protecting human rights, no one will find a perfect solution on the international level. If we accept the theory of some scholars that the UN Charter is ‘the constitution of the international community’,21 being just the beginning of a process, we should then take into account the possibility of a ‘world nation’. Nonetheless, some signs indicate other options, even though the prevalence of the human rights must be a central question.

17.3

Regional Level

After the international (universal) level, we have to take into consideration the regional ones, e.g.: the European Convention on Human Rights, the American Convention on Human Rights, the African Charter on Human and Peoples’ Rights, the Arab Charter on Human Rights.22 In order to evade wandering from the main topic, I only concentrate on the European frameworks, just mentioning the other regions. According to the variance between the cultures and legal systems of the world, it is far more difficult to reach a common standpoint on the regional level than on the international one, because, for instance, several states in Africa have different views of the role of religion, and while everyone could agree to the UN Charter adopting more detailed regulation could create more serious disputes resulting in radical conflicts. Some of the African, Asian and Arabic countries – with different rights protection systems of their own – have different cultures and different attitudes: they lean on collectivism and irrationalism.23 The vision 20 S.M. Schwebel, ‘The Treatment of Human Rights and of Aliens in the International Court of Justice’, in V. Lowe and M. Fitzmaurice (Eds.) Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings, digitally printed version, Cambridge University Press, Cambridge, 2008, p. 329. 21 G. Sulyok, ‘Interjú Bragyova Andrással’, 1 Fundamentum (2009), p. 45. 22 American Convention on Human Rights, Pact of San Jose, Costa Rica. African Charter on Human and Peoples’ Rights, 27 June 1981, Nairobi, Kenya. Arab Charter on Human Rights, 22 May 2004. 23 Weller, 2000, p. 41.

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of the European way of human rights protection is extraneous to some of them, because they have other focal points,24 and they often refer to the statement that human rights are the products of the ‘Western civilizations’.25 One of the extreme criticisms of the framework of the international human rights is connected to the Muslim Brotherhood because according to their founder, Hassan al-Banna, the freedom of the people does not depend on the individuals’ rights and on democracy but rather on a world of ‘believers’.26 In my view, this highlights the significance of the UDHR, because its standards are binding on all UN Member States as customary law. Another focal point in this regard is the wide range of possibilities open to the signatories to implement rights protection frameworks. Until one can find countries, where the rule of law is disregarded to give space to the ‘rule of war’, then the establishment of well-functioning human rights protection schemes will always be a secondary consideration.27 The collision of universality and cultural relativism (in terms of indigenous perceptions of justice and constitutionalism, or even rule of law) could create contradictions during the implementation of an international or regional norm in the legal system of a country; nevertheless, it could be solved in some ways with the uniform practice of the constitutional courts, which brings up the question of the use of comparative law in the process of constitutional interpretation.28 However, another perspective of the matter is relevant to the difficulty of this above-mentioned process, because some states have diverse cultural customs, which – if examined in the context of litigious behaviour – paints an interesting picture in terms of the different attitudes of societies.29 Secondly, I would like to examine the human rights protection system of the Council of Europe, subsequently the same within the European Union, merely extending to observations on the protection offered by the different conventions and by the courts established by them.30 The Council of Europe has already expressed priorities in the European Convention for the Protection of Human Rights and Fundamental Freedoms 24 The number of states which return to the use of sh’aria is growing exponentially. Cf. A. Badó, Az igazságszolgáltató hatalom függetlensége és a tisztességes eljárás, Iurisperitus Bt., Szeged, 2013, p. 35. 25 Weller, 2000, p. 34. 26 Official English Website of the Muslim Brotherhood: www.ikhwanweb.com/article.php?id=17065 (22 February 2014). NB: ‘believer’ means a devout follower of the Muslim religion. 27 M. Sulyok, ‘“In All Fairness…”: A Comparative Analysis of the Past, Present and Future of Fair Trial Systems Outside of Europe’, in A. Badó (Ed.), Fair Trial and Judicial Independence – Hungarian Perspectives, Springer, Berlin, Heidelberg, New York, 2013, p. 117. 28 G. Halmai, Alkotmányjog – Emberi jogok – Globalizáció – Az alkotmányos eszmék migrációja, L’Harmattan, Budapest, 2013, pp. 124-137. 29 For instance, avoiding a trial is deeply rooted and well respected social convention in Japan and it brings shame to the family if one ends up in court clearing up a legal dispute. See K. Chin and C.M. Lawson, ‘A kifinomult szellem joga: a jog hagyományos japán megközelítése’, in Varga Csaba (Ed.), Összehasonlító jogi kultúrák, Osiris, Budapest, 2000, pp. 211-231. 30 Other options like the European Committee for the Prevention of Torture or the European Ombudsman could not reach place in my analysis.

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(ECHR), as it sets forth that in order to achieve ‘[…] greater unity between its members […] the governments of European countries […] take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration.’31 These priorities defined the course of action leading to the current status of the European Court of Human Rights (ECtHR), in front of which countries and individuals can seek legal protection for fundamental human rights provided to them under the ECHR.32 Neither the scope ratione personae of those entitled to seek remedies in front of the ECtHR, nor the catalogue of the rights protected are very specific, but according to some authors ‘the real strength of the ECHR lies in the effectiveness of its enforcement mechanism’,33 although the judgments are not enforceable,34 only through political means.35 Nevertheless, there is no fire without smoke, the process established has its own difficulties and provides paths for possible solutions. For instance, the fact that the Court is overburdened with applications, required reforms and thus the pilot judgment procedure36 was put into place ‘[…] as a means of dealing with large groups of identical cases that derive from the same underlying problem.’37 The first case resolved by way of a pilot judgment was Broniowski v. Poland,38 followed by several e.g. the Dogan and Others v. Turkey case.39 The procedure of pilot judgement established the possibility of simplifying and expediting the evaluation of the cases. Another matter to consider is the similarity of several cases from one country, which suggests systemic flaws in the domestic constitutional order. As such, these indicators can also refer to the weak or faulty implementation of the first decision brought against the respondent state, because had the country implemented the decision of the Court properly, there would not have been further cases related to the flaw under domestic law leaving room for the original and every subsequent infringement.

31 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950. 32 A. Blahó and Á. Prandler, Nemzetközi szervezetek és intézmények, 3rd revised, extended edn, Aula, Budapest, 2011. p. 383; cf. P. van Dijk and G.J.H. van Hoof, Theory and practice of the European Convention on Human Rights, 3rd edn, Kluwer Law International, Hague, 1998, p. 40. 33 A. Aust, Handbook of International Law, Cambridge University Press, Cambridge, 2007, p. 237. 34 D.J. Harris et al. (Eds.), Law of the European convention on human rights, Butterworths, London, Dublin, Edinburgh, 1995, p. 26. 35 NB: ‘The Committee of Ministers may fully exercise its influence to persuade the state concerned to comply with the Court’s judgments, not least by noting its failure to comply with the Convention and taking appropriate action. In practice, the Committee of Ministers very seldom needs to exert political and diplomatic pressure but functions rather as a forum for constructive dialogue, thus helping states find satisfactory solutions enabling them to execute the Court’s judgments.’ V. Miller, The European Convention on Human Rights and the Court of Human Rights: Issues and Reforms, Library of the House of Commons, UK, Standard Note. 36 A. Buyse, ‘The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges’, 57 Nomiko Vima (The Greek Law Journal) (2009), pp. 1890-1902. 37 The Pilot-Judgment Procedure, www.echr.coe.int/Documents/Pilot_judgment_procedure_ENG.pdf (22 February 2014). 38 Broniowski v. Poland ECHR [GC] (2004) No. 31443/96. 39 Dogan and others v. Turkey ECHR (2004) Nos. 8803-8811/02, 8813/02 and 8815-8819/02.

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As an example, in Hungary the requirement of the prohibition of undue delay40 causes significant problems and results in a host of cases decided against Hungary.41 The first sentence in the preamble of the ECHR contains a reference to the Universal Declaration of Human Rights, which establishes a link between these two, simultaneously emphasising that the UDHR has an important (quasi superior) role in the European human rights protection from the beginning. The UN attitude is reflected in the European treaties and institutions, and these organizations could reach a very high level of protection for human rights, because the common European traditions42 provide grounds for this possibility. On the other side, the connection between the ECHR and the constitutional courts is significant.43 Another important institution established by the Council of Europe is the European Commission for Democracy through Law (Venice Commission), which is the independent advisory body of the Council of Europe in constitutional matters.44 Even though the Venice Commission’s role is consultative, the Member States are observant of the opinions issued based on an incentive to preserve and develop to the common constitutional heritage. The law of the European Union (EU) is pervaded by international standards of human rights protection and the practice of the ECtHR. Over the decades, the EU has created a complex system of human rights protection – independent thus far of the framework created under the umbrella of the Council of Europe; however, this integration started out on economic foundations in the first place, and the protection of human rights became relevant along the way,45 a complete overview of which could easily take up all the space at my disposal now. Therefore, I just mention Article 67 of the Treaty on the EU (TEU), which 40 See J. Bóka, ‘To Delay Justice, Is Injustice – Az ésszerű idő követelményének összehasonlító vizsgálata’, in A. Badó (Ed.), A bírói függetlenség, a tisztességes eljárás és a politika – Összehasonlító jogi tanulmányok, Gondolat Kiadó, Budapest, 2011, pp. 134-155. 41 As the statistics of the ECHR show, the total number of judgements against Hungary is 313 from 1959 to 2013. From this amount, the ones related to the length of the judicial proceedings is 223, www.echr.coe.int/Documents/Stats_violation_1959_2013_ENG.pdf (22 February 2014); F. Kondorosi et al. ‘A bírói etika és a tisztességes eljárás’, in K. Legény (Ed.), Magyar Hivatalos Közlönykiadó, Budapest, 2007, pp. 102-109. 42 The common constitutional heritage of the Member States, established by the CJEU. 43 J.E. Pérez-Rodríguez, The Dynamic Effect of the Case-Law of the European Court of Human Rights and the Role of Constitutional Courts, in Dialogue between Judges, ECHR, Strasbourg, 2007, pp. 57-66. 44 www.venice.coe.int/WebForms/pages/?p=01_Presentation (22 February 2014). 45 G. de Búrca, ‘The Evolution of EU Human Rights’, in P. Craig and G. de Búrca (Eds.), The Evolution of EU Law, Oxford University Press, Oxford, 1999, pp. 465-497; A. Raisz, ‘Az Európai Unió hatása az Európa Tanács emberi jogvédelmi rendszerére’, Publicationes Universitatis Miskolcinensis. Sectio Juridica et Politica, Tomus. XXIV, 2006, pp. 315-318; N. Chronowski, Protection of Fundamental Rights in the European Union (Tendencies and Actual Problems), in N. Chronowski (Ed.), ‘Adamante notare’: Essays in Honour of Professor Antal Ádám on the Occasion of his 75th Birthday, Pécsi Tudományegyetem ÁJK, Pécs, 2005, pp. 452-456; (Chronowski, 2005 I); S. Szemesi, ‘Az Európai Unió és a közösségi jog szerepe az Emberi Jogok Európai Bírósága gyakorlatában’, 17(2) Acta Humana (2006), pp. 52-56; G. Sulyok, ‘Az emberi jogok nemzetközi jogi és európai uniós védelmének összehasonlítása’, 16(2) Acta Humana (2006), pp. 30-56; L. Blutman, Az Európai Unió joga a gyakorlatban,. 2nd revised edn, HVG-Orac, Budapest, 2013. pp. 477-494.

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creates legal certainty within the Union in terms of the ‘respect for fundamental rights and the different legal systems and traditions of the Member States’ due to the fact that it imposes relevant obligations on the Member States.46 Since December 2009, the Charter of Fundamental Rights of the European Union (ECFR)47 defines the framework and the substratum of these principles is connected to the ‘International Bill of Rights’. At first, the CJEU had not functioned as a human rights protection judicial forum, but progressively extended the scope of the decisions through economic matters48; moreover, the rule of law of the EU has developed in its jurisprudence by acknowledging the general constitutional principles as part of a European integration process.49 If we examine the two practices of protection, we can find several signs of convergence.50 The Council of Europe has already enunciated its commitment creating a more unified Europe in 1949: ‘[…] there is a need of a closer unity between all like-minded countries of Europe’; ‘[they shall] create an organization which will bring European States into closer association’.51 The Preamble of the Charter of Fundamental Rights of the EU sets forth the same intention, as ‘creating an ever closer union among them’; moreover, the Preamble reaffirms inter alia the rights protected by […] the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Union and by the Council of Europe and the case-law of the Court of Justice of the European Union and of the European Court of Human Rights52 Thereby a link is created between the two regional human rights protection systems, which continues to evolve as we speak.53 What is more, according to the Charter, in the EU context, in the application of EU law, the de minimis protection of human rights shall be assessed under EU law (i.e. the ECFR), except in cases where the ECHR might set forth higher

46 Consolidated Version of the Treaty on European Union. 47 Charter of Fundamental Rights of the European Union (2000/C 364/01). 48 A. Grád. & M. Weller, A strasbourgi emberi jogi bíráskodás kézikönyve, 4th, extended edn, HVG, Budapest, 2011, p. 770. 49 N. Chronowski, ‘Integrálódó’ alkotmányjog, 1st edn, Dialóg Campus, (Institutiones juris/Janus Pannonius Tudományegyetem (Pécs), Budapest; Pécs, 2005, p. 55. (Chronowski, 2005 II). 50 N. Chronowski, ‘Az alapjogvédelem globális, európai és hazai trendjei’, in T. Drinóczi and A. Jakab (Eds.), Alkotmányozás Magyarországon 2010-2011 I, Pázmány Press, Budapest, Pécs, 2013, pp. 154-159. 51 Statute of the Council of Europe, London, 5.V.1949. 52 Charter of Fundamental Rights of the European Union (2000/C 364/01). 53 E. Szalayné Sándor, ‘Új távlatok az európai alapjogvédelemben – Hatályba lépett az Egyezmény 14. Kiegészítő Jegyzőkönyve’, 3 Közjogi szemle (2010), pp. 33-40.

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standards in terms of the rights subject to assessment (Article 52 creates the link between the ECFR and the ECHR).54 The other aspect of the question is enshrined in the Treaty of Lisbon,55 which contains a proclamation in Article 62 that the EU shall accede56 to the European Convention for the Protection of Human Rights; however, the academic public opinion remains divided on this issue.57 This aim58 is a praiseworthy one, but in practice it proposes several hindrances (different legal systems can generate collisions during the practice). In the meantime, we can determine that the human rights practice of the Member States and the European Court of Human Rights ‘inspired’ the Court of Justice of the European Union.59 For instance, the Court has taken into consideration the treaties binding the Member States concerning human rights.60 In addition, one can find another interaction from the other way around, because the CJEU also affected the ECtHR.61 The connection between these two organizations presumably will improve, but the rapidity of this progress is leastwise questionable. Nevertheless, both the ECHR and the EU Charter are clear signs of a new and unifying human rights protection system in Europe.

17.4

National Level

Subsequently, I examine the principles of the national human rights protection in Europe presenting it by delineating the protective framework of Hungary, because the legal values which are posited in international and supranational documents appear in national constitutions.62 The effects of international law, particularly the UDHR, influenced the constitutions of the European countries after the World War II (France, 1946, Italy, 1947), and

54 Charter of Fundamental Rights of the European Union (2000/C 364/01). 55 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, 13 Decembre 2007. 56 D. Chalmers et al. (Eds.), European Union Law: Cases and Materials, 2nd. edn, Cambridge University Press, Cambridge, 2011, pp. 259-262. 57 In the Hungarian legal literatuere, see E. Szalayné Sándor, 2010, pp. 33-40; E. Szalayné Sándor, ‘Alapjogok (európai) válaszúton – Lisszabon után’, LXVIII(1) Jogtudományi Közlöny (2013), pp. 22-24; Gy. Marinkás, ‘Az emberi jogok védelmének fejlődése az Európai Unióban: az Unió csatlakozása az Emberi Jogok Európai Egyezményéhez’, VIII(1) Miskolci Jogi Szemle (2013), pp. 97-120. 58 A. Osztovits (Ed.), EU-jog, HVG-ORAC, Budapest, 2012, pp. 252-254. 59 Grád andWeller, 2001, pp. 108-111. 60 Chronowski, 2005 II, p. 57. 61 Raisz, 2006, pp. 318-326. 62 Chronowski, 2009, p. 82.

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the effects of the international and regional levels have to be taken into consideration to this date63; however, through certain ‘constitutional’ filters.64 Democratic countries must act in conformity with these legal provisions if they intend to participate in the EU. The constitution of an EU Member State generally contains the most important human rights, with exceptions of course, e.g. in the Czech Republic the Charter of Fundamental Rights and Basic Freedoms is independent of the constitution, albeit considered a part thereof.65 These catalogues sometimes are (i) very circumstantial, like in the Constitution of the Portuguese Republic, where the fundamental rights and duties are regulated in 77 Articles66; (ii) sometimes reticent, like in the Danish Constitutional Act, where the citizens’ rights consist of fourteen sections67; but all of these set forth the creation of a comprehensive and complete human rights protection framework. We have to dissert on the principle of complementarity at this point, which pronounces the statement that the protection of these fundamental rights is the duty of the state, but if it is not capable or otherwise unwilling or indisposed to take measures when they are required, then the international community can intervene.68 The development of national legal systems could give a significant impulse to the progression of the international law, and could help unification.69 Our Fundamental Law prescribes rules in the National Avowal and in the Freedom and Responsibility and obliges constitutional organs like the Constitutional Court (Article 24), the Commissioner for Fundamental Rights (Article 30) or the Courts (Article 25) to guarantee proper protection.70 Every state organ must protect fundamental rights during their operation, as Article I sets forth: ‘The inviolable and inalienable fundamental rights of MAN shall be respected. It is the primary obligation of the State to protect these rights’, because it is the said to be the prime commitment of the Hungarian state, nothing, not even the efficiency of the state operations can be more emphatic, in accordance with the pertinent constitutional provisions.71

63 T. Molnár, A nemzetközi jogi eredetű normák beépülése a magyar jogrendszerbe, Dialóg Campus; Budapest: Dóm K., Budapest; Pécs, 2013, pp. 221-227. 64 I. Vörös, Csoportkép Laokoónnal: a magyar jog és az alkotmánybíráskodás vívódása az európai joggal, MTA Társadalomtudományi Kutatóközpont Jogtudományi Intézete, Budapest, 2012, pp. 104-110; Molnár, 2013, pp. 81-100. 65 Charter of Fundamental Rights and Basic Freedoms, Presidium of the Czech National Council, 16 December 1992. 66 Constitution of the Portuguese Republic. 67 The Constitutional Act of Denmark. 68 Chronowski, 2009, p. 85. 69 F. Kondorosi, A világ végveszélyben?: a nemzetközi jog új kérdései, 1st edn, Magyar Közlöny Lap – és Könyvkiadó, Budapest, 2008, p. 50. 70 The Fundamental Law of Hungary. 71 F. Gárdos-Orosz 8. § [Alapjogok korlátozása], in A. Jakab (Ed.), Az Alkotmány Kommentárja I, 1st edn, Századvég Kiadó, Budapest, 2009, p. 441.

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The cardinal laws enacted for the implementation of the Fundamental Law upheld the structures for the protection of human rights established under the Constitution of 1989, such as e.g. the Equal Treatment Authority, the Independent Police Complaints Board, the Hungarian Authority for Consumer Protection and the Hungarian Labour Inspectorate, but the ones which are explicitly mentioned in the Fundamental Law – Constitutional Court, Commissioner for Fundamental Rights and the Hungarian National Authority for Data Protection and Freedom of Information – are the most relevant in the present constitutional context. The correspondence between the national and international level can be traced e.g. in the practice of the Constitutional Court through several cases.72 The Hungarian Constitutional Court observed the ECHR since the beginning of its functioning, e.g. it was even used in a decision one week before Hungary actually ratified it.73 There are laws, restrictions and limitations for sovereignty in the national law, but the Fundamental Law stipulates the requirement of conformity of national law with international law under the Article Q).74 To ensure the proper functioning of the rights protection system, we can find several sectoral laws and other legal rules in Hungary, such as Act CLI of 2011 on the Constitutional Court, Act CXXV of 2003 on Equal Treatment and Promotion of Equal Opportunities, Act CXI of 2011 on the Commissioner for Fundamental Rights and Act CXII of 2011 on Informational Self-Determination and Freedom of Information. If one looks for the main difference between international and national legal norms, one of the possible answers is the difference in the scope of protection. Citizens’ ‘civil rights’ shall also be considered in this topic, not just because they are partly synonymous to human or fundamental rights, but also due to the fact that citizens’ civil rights are a set of rights that might be different from that of human rights. While the international conventions like the UDHR extend to ‘all members of the human family’,75 some of the national laws extend some of the protections only to their citizens, e.g.: Article XI. Right to education, Article XIV. Expulsion, Article XIX. Social security, Article XXIII. Right to vote (under the Fundamental Law of Hungary). In addition, ‘second generation rights’ (social, cultural and economic rights) are mostly dependent on the economic capacity of a country; therefore, it can happen that the catalogues of these rights are not always the same in all the states. Also, as the example of consular protection demonstrates, it might occur that the protections afforded by two states to their respective citizens in terms of civil rights collide as part of an international conflict.76

72 A. Szalai, ‘Az Emberi jogok Európai Bírósága ítélkezésének megjelenése a magyar alkotmánybíróság gyakorlatában’, VII(4) Kül-Világ (2010), pp. 15-21. 73 Szalai, 2010, p. 15. 74 The Fundamental Law of Hungary. 75 The Universal Declaration of Human Rights, 1948. 76 I. Schiffner, A diplomáciai védelem a nemzetközi jogban – doktori értekezés, 2010, p. 25.

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17.4.1

Layers of the National Level – The Role of Civil Society in Protecting Fundamental Rights

On the national level, civil society plays a very significant role in the human rights protection. An immense amount of advocacy associations, organizations, and groups struggles for better standards in protecting and enforcing human rights. These battles take place on the international, national and also on a sub-national level as well, e.g. just some of the greatest organizations: Amnesty International, Human Rights Watch, and Greenpeace (or the the Hungarian Civil Liberties Union, the Hungarian Helsinki Committee in the Hungarian context). In my paper, I examine only one minor aspect of this question, the one that is relevant to universal protection for human rights. I have already described and presented the official protective instruments of the UN, but we cannot avoid a few words to be said about the role of CSOs and NGOs. E.g., they can participate in the negotiations of the UN Economic and Social Council and the UPR process to share their opinions about the human rights state of the country.77 The Council of Europe and the EU have NGOs with a significant role in the decision-making.78 Another way to shape public opinion is the National Human Rights Institution (NHRI), which is an independent rights protection organization. This can maintain effective human rights protection and monitoring continuously. When an organization proves that it could reach the strict criteria, it will become part of a world-wide system.79 This institution is national, but non-governmental, which connects the two spheres as a separate participant.80 NHRIs have three categories: A, B and C according to the quality of the protection. Hungary was classified as C until 2011, when our national ombudsman was reclassified into the B category. This is a real appreciation for Hungarian protection since organizations in class B can not only observe the processes, like those in class C,81 but can meaningfully contribute to the real tasks.82 In my view, this opportunity is an intriguing mixture of the national and international rights protection, when a national member entity reaches the international scale, making possible a better connection between the two, and helping to widen the national vision.

77 Blahó and Prandler, 2011, p. 466; Cf. contributions and participation of ‘other stakeholders’ in the UPR (Information updated on 12 December 2013). 78 Blahó and Prandler, 2011, pp. 466-468. 79 J. Sziklay, ‘Az ombudsman nemzeti emberi jogi intézményi (NHRI) státusa’, Nemzet és biztonság (2011, December), p. 88. 80 Haász and Szappanyos, 2011, p. 80. 81 Blahó and Prandler, 2011, p. 466. 82 Sziklay, 2011, pp. 89-90.

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17.4.2

Human Rights, Civil Rights and Eternity Clauses

Special Ways to Protect Human Rights: Constitutional Eternity Clauses

Last, but not least, I analyse whether it is possible that in a way certain principles enshrined in the universal protection of human rights (rooted to some extent in natural law) affect the scope of human rights protection in national constitutions through the application of the so-called ‘eternity clauses’. According to this argument, eternity clauses can serve as adequate safeguards for human rights, not just nationally, but also universally. If we accept the principles of international law, e.g. state sovereignty, non-use of force and self-determination,83 which bind the signatories since decades as ‘eternity clauses’ (although not codified as such), we could also accept their outstanding significance, because the stability of international law is substantial and essential in the scope of human rights protection. Such protection is facilitated by these core principles, and they could be further supported with a spreading use of eternity clauses. Applying eternity clauses is an established way to avoid dictatorship and simultaneously fortifying protections for fundamental rights, like in Germany after the end of World War II. In my view, that is the reason why the Grundgesetz of Germany contains a similar reservation under Article 79(3). The drafters of the Grundgesetz opined that after the horrendous occurrences of the War that the people’s equality shall be protected, and one way to ensure this was the eternity clause. The Grundgesetz contains several of these, e.g. with respect to human dignity, state authority, right to resist against abolishing constitutional order and ‘Germany is a democratic and social federal state.’84 The German constitution only limits constitutional revision; nevertheless, if a new constitution would be adopted to change the levels of the protection ‘set in stone’, it could be possible. The German Constitutional Court dealt with this matter several times.85 Even so, the eternity clause could help engrain the most important human rights not just as a token of the political power of the presently ruling elite, but also for the benefit of future generations, who will perceive the deeds of their ancestors as a heritage worthy to be upheld; one that is destined to eternity. Another possible application of eternity clauses is relevant to international law: it would be possible to declare that certain rights included in the UDHR (or other international instruments) cannot be subject to limitations or restrictions and cannot be suspended (as a matter of natural law) within the national legal order. This is due to the fact that the Preamble of the UDHR assigns inalienable rights ‘to the citizens of the world’.86

83 K. Nagy, Nemzetközi jog, 1st edn, Püski Kiadó, Budapest, 1999, pp. 61-96. 84 Deutscher Bundestag, Basic Law for the Federal Republic of Germany, printed in October 2010. 85 H. Küpper, ‘Az alkotmánymódosítás alkotmánybírósági kontrollja Magyarországon és Németországban’, LIX(9) Jogtudományi Közlöny, pp. 269-273. 86 Kardos, 1998, p. 5.

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One supporting theory of the above is the argument of the core constitution (Kernverfassung). It argues that a foundational part of the constitution represents the core of national constitutional identity of a nation, with the nation in question having complete control thereover.87 The use of this principle roots to the intention of some Member States of the EU to protect their sovereignty (constitutional identity) pertinent to the core constitution from interference by the EU. This effort may be duly reinforced by the institution of eternity clauses, because both this theory and that of the core constitution aim to protect the most important parts of the constitution. Therefore, the question we have to ask ourselves is: what could be the catalogue of rights to be included in these eternity clauses? The eternity clauses function as standards setting the bar for constitutional regulation in general,88 thus the fact that they can only be changed by adopting a new constitution, attribute them a higher added value in human rights protection. If a parliament – or constitutional legislator – is bound by eternity clauses, change can also be effected in case a new constitution is agreed upon and adopted. Nevertheless, if these clauses appeared in international law (accepted as a generally acknowledged principle of international law), constitutional human rights protection could only be eroded in case international law changed; however, such change is almost impossible, and reaching consensus would amount to differences between states. Therefore, if we accept the theoretical possibility of international eternity clauses, a possible solution to change their scope would only be possible in changing their interpretation, as is done in those countries that have adopted eternity clauses to uphold protections for human rights.89 If we take into consideration that the obligatory rules of international law took a long time to actually become obligatory, then it is a possible approach for their further development for them to apply on the national level as protection encoded in eternity clauses. Natural law does not depend on time or place, but on ‘the common wants and ideals that we find in man.’90 Last but not least, the institutional implications of such international eternity clauses shall be considered. Normally, in the national context, the interpretation of the meaning of eternity clauses falls under the exclusive jurisdiction of constitutional courts,91 analogously, the establishment of an international organization should be considered, tasked with the interpretation of said international eternity clauses, obviously also relying on the ‘judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law’, which are among the

87 A. Zs. Varga, ‘A mag-alkotmány védelmében’, Pázmány Law Working Papers, No. 2, 2011. 88 J. Fröhlich, ‘Az örökkévalósági klauzulák dilemmája’, in T. Drinóczi and A. Jakab (Eds.), Alkotmányozás Magyarországon 2010-2011 II, Pázmány Press, Budapest-Pécs, 2013, p. 32. 89 Halmai, 2013, pp. 29-47. 90 O.W. Holmes, ‘Natural Law’, The Harvard Law Review (1918). 91 Küpper, 2004, p. 274.

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subsidiary means to determine the rules of law.92 Such developments entail that pluralism and consensus will define the future of the international community in the context of protecting human rights under eternity clauses recognized and solidified in international law (Obviously, this is a reflection of the national practice, where pluralism and the search for consensus steer decision-making towards the application and respect of constitutional eternity clauses).93 Summing it up, naturally, in every rule-of-law democracy, there are principles, irrespective of whether these are recognized as part of an eternity clause or not, that cannot be departed from or derogated.94 These principles surrounding the core constitution might serve as a basis for determining fundamental values to be included in eternity clauses on the international level as well.

17.5

Conclusion

In my paper, I examined the international, regional, and national levels of human rights protection, with additional observations on the role of civil society and the constitutional legislator in creating additional protection for human rights. The questions examined in this paper corresponded to the specificities of human rights protection of the respective levels. Even these levels collide sometimes, albeit their aim might be the same: protecting human rights on the highest possible level. If human rights are protected by constitutions, constitutional acts, regional and international treaties, supranational decisions and norms as part of a multidimensional framework of different norms, will then their emergence be multidimensional, too?95 The theory of eternity clauses could help this improvement. There are many other options and possibilities which can be found on the levels examined, but their purpose is the same: to reach […] the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.96

92 Statute of the International Court of Justice. 93 N. Chronowski et al., ‘Túl az alkotmányon… – Az alkotmányvédelem elméleti és európai kontextusa, továbbá magyar gyakorlata 2010-ben, avagy felülvizsgálható-e az alkotmánymódosító törvény az Alkotmánybíróság által’, 4 Közjogi Szemle (2010), p. 7. 94 N. Chronowski et al., 2010, p. 9. 95 Chronowski, 2009, pp. 86-87. 96 The Universal Declaration of Human Rights, 1948.

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GMO as a Weapon – a.k.a. a New Form of Aggression?

Anikó Raisz*

18.1

Introduction

The new Fundamental Law of Hungary has gained more international attention in its recent existence than many others get their whole lifetime. Still, this attention generally seems to be rather superficial. The author had to face this fact again recently, when at a voluminous and prestigious international conference1 – attended by hundreds of European lawyers of agricultural and environmental law –, upon the presentation of the Hungarian national report, it turned out that one of the few even internationally relevant dispositions of the Fundamental Law, the provision on genetically modified organisms (GMOs) is almost completely unknown abroad. And it soon turned out to be one of the most interesting issues of the conference, initiating heated discussion pro and contra… Although it is tempting to enter into details whether Hungary – under its EU commitments – is entitled to such a strict regulation, the present article shifts the attention to the field of international law and concentrates on the classic role of state sovereignty and its new challenges, raising the question whether the notion of the GMO attack may be introduced into the international legal terminology. Thus the paper rather aims at inspiring a professional debate in this regard. The notion of aggression has been in the focus of international legal debates in recent years. From an international criminal legal perspective, the question had been thoroughly elaborated. Nevertheless, in the followings, the paper2 focuses on a different field of international law, namely international environmental law, referring to the decade-long debate over the definition of aggression and seeking answers to the newest challenges international environmental law is facing. Besides the entering into force of the new Fundamental Law of Hungary last year,3 the paper finds its motivation in the 2011 summer events – commonly referred to in Hungary * 1 2 3

Assistant professor, University of Miskolc, Faculty of Law; Political adviser, Ministry of Justice. E-mail: [email protected]. European Council for Rural Law (CEDR) Congress, 11-14 September 2013, Lucerne, Switzerland. This research was (partially) carried out in the framework of the Center of Excellence of Mechatronics and Logistics at the University of Miskolc. Closing date of the paper is 15 November 2013.

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as the ‘GMO scandal’. What brought the author to the issue is the combination of these two events: what if something similar happens, i.e. GMO is smuggled into the country (and is necessarily spread there) when a fundamental law/constitution forbidding the use of GMOs in the country is in force? Is this a clear violation of the sovereignty? The paper aims at challenging the classical definition of aggression as something rather surpassed. First, the paper describes the situation of GMOs in international law (paragraph 2), then the regulation of the Hungarian Fundamental Law (paragraph 3). The notion of aggression is followed by the issue of a GMO attack (paragraph 4), before the concluding remarks (paragraph 5). It is worth stressing that the present paper leaves the question open-ended whether the production of GMOs is in general damaging us or our environment. It only applies the aspect of sovereignty to examine whether failing to respect that a state wants to maintain a GMO free agriculture in its territory qualifies as a GMO attack, realizing aggression, one of the most severe breaches of international law to be committed versus a state.

18.2

GMOs in International Law

Nowadays, genetically modified (GM) plants are grown on approximately 150 million hectares4 worldwide.5 The biggest producers are the United States of America, Brazil, Argentina, India and Canada; but of course, we cannot forget about China or South Africa either. Although altogether 25 countries produce GMOs, the mentioned five states provide more than 90% of the world’s GMO production. In some years (i.e. since 2007),6 territories where GM plants (above all, soybean, maize, rapeseed and cotton) are grown have increased with more than 30%, representing altogether almost 10% of the global producing areas (approximately 1,5 billion hectares).7 In Europe,8 Spain, Sweden, Poland, Romania, the Czech Republic and Slovakia are the main GMO-producers, while GMO production is declining in France and Germany.9 4 5 6

7 8 9

In 2009, this number has been 134 million hectares. See www.gmo-compass.org/eng/agri_biotechnology/ gmo_planting/257.global_gm_planting_2009.html (retrieved on 1 April 2012). FAO Statistical Yearbook, 2012, p. 313. In 2007, GMOs had been produced on 114 million hectares worldwide. For a further complex assessment see J.E. Szilágyi, ‘A zöld géntechnológiai szabályozás fejlődésének egyes aktuális kérdéseiről’, 2 Miskolci Jogi Szemle (2011), pp. 36-54, p. 36. See FAO Statistical Yearbook 2012, p. 14. See www.gmo-compass.org/eng/agri_biotechnology/gmo_planting/392.gm_maize_cultivation_europe_ 2009.html (retrieved on 1 April 2012). E.g. in 2009, Germany enacted a cultivation ban. For a very critical approach on the European scepticism on GMOs, especially trying to claim violations of international and EU law, basically relying on international trade law but not on international environmental law, see A.L. Stephenson, ‘Germany’s Ban of Monsanto’s Genetically Modified Maize (MON180): A Violation of International Law’, 2 Trade, Law and Development (2010), pp. 292-328.

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GMO industry is one of the fastest-growing industries of the world. As the new products show up in the market very soon, there is not enough time to detect the possible sideeffects, violating many principles of international law (above all the precautionary principle) as well as human rights standards. At the same time, it is a very complex issue, touching upon human rights law, international trade law, intellectual property law and international environmental law.10 It would certainly require a complex international regulation (and, some dare to propose, a particular dispute settlement system),11 but we see a very different picture in international law instead. One of the most important international documents12 on GMOs is the so-called Cartagena Protocol to the Convention on Biological Diversity (1992), on biosafety, focusing on agricultural GMOs.13 This document – opened to signature in 2000, entered into force in 2003, after having reached the required fifty ratifications – currently has 166 State Parties,14 among others Hungary as well.15 Of the above-mentioned GMO world powers, the USA, Canada and Argentina are not party to the convention which – based on the precautionary principle16 – rules especially on the transport, management and use of genetically 10 H.F. de Oliveira Souza, ‘Genetically Modified Plants: A Need for International Regulation’, 6(1) Annual Survey of International and Comparative Law (2000), pp. 129-174, p. 130. 11 See among others Hutchinson bringing up another argument for a separate International Environmental Court: M.A. Hutchinson, ‘Moving Beyond the WTO: A Proposal to Adjudicate GMO Disputes in an International Environmental Court’, 10 San Diego International Law Journal (2008-2009), pp. 229-263, pp. 259263. 12 Although the present paper does not discuss it in detail, both the World Trade Organization (WTO) and the European Union (EU) have a considerable practice in this regard as well. For a detailed analysis of these legal materials – belonging partly to neighbouring legal fields (law of international economic relations), partly to a sui generis legal system (EU) – see J.G. Carrau, ‘Lack of Sherpas for a GMO Escape Route in the EU’, 8 German Law Journal (2009), pp. 1169-1199; Szilágyi, 2011, pp. 38-40; M.R. Grossman, ‘The Coexistence of GM and Other Crops in the European Union’, 3 Kansas Journal of Law and Public Policy (2007), pp. 324392; and furthermore J.E. Szilágyi, ‘A géntechnológiai szabályozás nemzetközi- és közösségi jogi kérdései’, in J.E. Szilágyi (Ed.), Környezetjog: Ágazati környezetvédelem és kapcsolódó területei, Novotni, Miskolc, 2008, pp. 61-72. Furthermore, the present paper focuses only on documents adopted at universal level, according to the particularities of the topic. 13 For a detailed assessment of the Cartagena process see G.W. Schweizer, ‘The Negotiation of the Cartagena Protocol on Biosafety’, 2 The Environmental Lawyer (1999-2000), pp. 577-602. 14 As of November 10, 2013. 15 Hungary was one of the very first states to sign the document, but has not become a Party until 2004. 16 The precautionary principle might be the most significant disposition of the Rio Declaration (see A. Kiss and D. Shelton, International Environmental Law, Ardsley, NY, UNEP, Transnational Publishers, 2004, p. 114). It basically means that even lacking the scientific certainty, the probability and scope of a given environmental damage shall be examined, necessarily presupposing transparency. It was first weighed in the Gabcikovo-Nagymaros case (brought in by Hungary), but not yet accepted by the International Court of Justice at the time, see Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, 1997 ICJ Rep., p. 7, Paras. 54-57, 97. Today, it is one of the most important principles of international environmental law. For further reading see G. Herczegh, ‘Bős-Nagymaros’, 47(2) Valóság (2004), pp. 1-20; B. Nagy, ‘Bős-breviárium’, 10(10) Beszélő (2005); M. Szabó, ‘A hágai Nemzetközi Bíróságnak a Duna elterelésével kapcsolatos döntése és a nemzetközi jogtudomány’, in Szabó (Ed.), Emlékkönyv Apáthy István tiszteletére, Europa Nostra, Budapest, 2010, pp. 165-204; P-M. Dupuy, L’invocation de l’état de nécessité écologique: les

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modified organisms, above all in order to conserve biological diversity and to preserve human health. Although a great milestone on the way to an international regulation of GMOs, the Protocol is nevertheless considered as a clear diplomatic compromise, without doing ‘a very good job of controlling the risks associated with these organisms.’17 However, it is also an example of public concerns finally altering strict political standpoints.18 Apart from the Cartagena Protocol, numerous soft law rules concern the GM technology in international law.19 GM technology resulting in GMOs shall be distinguished from the beginning from biotechnology, an essentially broader notion, including many other fields than GM technology, from genetic resources preservation through embryo transfer in animals to the diagnosis of plant and animal diseases.20 Therefore it is understandable that biotechnology – which also includes the traditional plant improvement – is widely accepted among the population, while GM technology – besides its significant supporters – faces numerous critics as well. Its supporters expect GMOs to solve future famines and to increase the nature conservation areas. Its critics point among others to the fact that through the decades of its use, none of these fields have seen advances, but the GMO producers’ (expensive) special chemicals had to be and have been applied; furthermore, we act without knowing the long-term effects, and we have no effective protection against genetic pollution or genetic escape (the evasion of modified formulas into not targeted areas).21 The present article does not aim at taking sides in this dispute – which would, by the way, require a thorough knowledge of natural sciences –, but the author, based on past experiences, widely supports the use of the precautionary principle with regard to this issue. At this point, it is not necessary to judge on GMOs, it is enough to know its fundamental features. Therefore, in the followings, the paper describes the event when a GMO gets into an area it was not supposed to get into as GMO pollution in a narrower sense.

17 18 19 20 21

enseignements tirés d’une étude de cas, La nécessité en droit international: colloque de Grenoble, Pedone, Paris, 2007; P. Kovács, A nemzetközi jog fejlesztésének lehetőségei és korlátai a nemzetközi bíróságok joggyakorlatában, MTA doktori értekezés, 2009, pp. 149-151, p. 180. S. McCaffrey, ‘Biotechnology: Some Issue of General International Law’, 14 The Transnational Lawyer (2001), pp. 91-102, p. 95. See Schweizer, 1999-2000, pp. 601-602. See e.g. in the frame of the FAO or the UNEP, or – at regional level – the Organisation of American States. For more details see FAO Statistical Yearbook 2012, 314. For further details see e.g. J.E. Szilágyi, ‘A géntechnológia jogi szabályozása’, in J.E. Szilágyi (Ed.), Környezetjog: Tanulmányok a környezetjogi gondolkodás köréből, Novotni, Miskolc, 2010, pp. 105-128, pp. 105-106; L. Zsiros, ‘A mezőgazdasági géntechnológia jogi szabályozása a géntechnológia szemszögéből’, in M. Dobróka et al., Diáktudomány. A Miskolci Egyetem tudományos diákköri munkáiból, Miskolci Egyetemi Kiadó, Miskolc, 2010, pp. 162-167; E. Tanka, ‘Adalékok a génmódosított növények hazai köztermeszthetőségéhez’, 15(3) Gazdaság és Jog (2007), pp. 20-26; E. Tanka, ‘Génügy, élelmiszerbiztonság, alkotmányos jogvédelem’, 13(9) Gazdaság és Jog (2005), pp. 20-26; E. Tanka, ‘Alkotmányos bástya a génhadjárat ellen’, 20(1) A falu (2005), pp. 37-49.

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18.3

GMO as a Weapon – a.k.a. a New Form of Aggression?

Hungary: GMOs and the New Fundamental Law

The new Hungarian Fundamental Law – entered into force on 1 January 2012 – includes numerous provisions relevant from the point of view of international environmental law.22 In this regard, the new constitution is definitely a big step forward compared to the old one.23 This development is however not only the achievement of the lawmakers, but reflects clear social support as shown by some of the results of the preliminary process called ‘National Consultation’.24 The significance of including certain values in the Constitution may not be denied even knowing that it was not the first constitution mentioning environment and sustainability,25 and bearing in mind that a declaration at constitutional level may only come to full realization through appropriate legislative acts of a lower level.26 According to the National Avowal, ‘[w]e bear responsibility for our descendants; therefore we shall protect the living conditions of future generations by making prudent use of our material, intellectual and natural resources.’27 Furthermore, it is stated in Article P) that [a]ll natural resources, especially agricultural land, forests and drinking water supplies, biodiversity – in particular native plant and animal species – and cultural assets shall form part of the nation’s common heritage, and the State 22 See the National Avowal, as well as Arts. P), Q), XX and XXI. On this issue, see among others Cs. Csák, ‘Gondolatok a “szennyező fizet” elvének alkalmazási problémáiról’, Miskolci Jogi Szemle (2011) (special edition), pp. 31-45, pp. 44-45; L. Fodor, ‘A természeti tárgyak helye és szerepe az új alkotmányban’, in T. Drinóczi and A. Jakab (Eds.), Alkotmányozás Magyarországon 2010-2011, Pázmány Press, Budapest – Pécs, 2013, pp. 89-103; A. Pánovics, ‘Környezetvédelem az új Alkotmányban’, 1-2 Kül-Világ (2011), pp. 117-133. 23 For further reading see L. Fodor, ‘A környezethez való jog dogmatikája napjaink kihívásai tükrében’, 1 Miskolci Jogi Szemle (2007), pp. 5-19. 24 The new Hungarian Fundamental Law was preceded by a so-called National Consultation, a central consultation process, in the frame of which the citizens – approximately 900,000 – expressed their opinion in questions like that the new constitution shall take responsibility for future generations (Question No. 6, 86% – the percentage shows the proportion of support), that it shall protect the biodiversity of the Carpathian Basin (Question No. 9, 95%[!] in two sub-questions together), as well as arable land and water resources (Question No. 10, 97%[!]). Source of data (retrieved on 15 November 2011) http://static.fidesz.hu/download/156/A_Nemzeti_Konzultacios_Testulet_kerdoivenek_eredmenyei_2156.pdf. For a more detailed analysis of the National Consultation see A. Raisz, ‘A Constitution’s Environment, Environment in the Constitution – Process and Background of the New Hungarian Constitution’, 1 Est Europa – La Revue, special edition (2012), pp. 37-70. 25 See among others the French, Norwegian or Finnish constitutional solutions. 26 Furthermore, obviously, members of the society as well as economic actors shall make the right decisions. See among others the Position of the National Council for Sustainable Development on the New Fundamental Law of Hungary, 25 May 2011, www.nfft.hu/allasfoglalasok_az_uj_alaptorvenyrol_es_a_videkstrategia_koncepciojarol (retrieved on 6 August 2011), p. 1; Z. Nagy, ‘Fenntartható költségvetési elvonások rendszere a környezetvédelem területén’, Publicationes Universitatis Miskolcinensis, Sectio Juridica et Politica, Tomus XXIX, Vol. 1, Miskolc University Press, 2011, pp. 247-258. 27 See furthermore J.E. Szilágyi, ‘Az agrárjog dogmatikájának új alapjai: Útban a természeti erőforrások joga felé?’, 3 Jogtudományi Közlöny (2007), pp. 112-121.

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and every person shall be obliged to protect, sustain and preserve them for future generations.28 It even refers to international environmental law in Article Q)(1) when proclaiming that ‘[i]n order to […] achieve the sustainable development of humanity, Hungary shall strive for cooperation with every nation and country of the world.’ Article XX takes definite sides in the debate on GMOs. It says: (1) Every person shall have the right to physical and mental health. (2) Hungary shall promote the exercise of the right set out in Paragraph (1) by ensuring that its agriculture remains free from any genetically modified organism, by providing access to healthy food and drinking water, by managing industrial safety and healthcare, by supporting sports and regular physical exercise, and by ensuring environmental protection. However, on the one hand, this provision does not mean a complete protection from consuming GMOs, on the other hand, as certain scholars argue, the text does leave a rather vast margin of appreciation29 and may only be regarded as a declaration.30 The above rules are completed with Article XXI stipulating that (1) Hungary shall recognise and enforce the right of every person to a healthy environment. (2) A person who causes any damage to the environment shall be obliged to restore it or to bear all costs of restoration as defined by law. (3) No pollutant waste shall be brought into Hungary for the purpose of dumping. This phrasing necessarily has not come out of the blue: the relevance of this article is underlined by certain – even internationally known – sad events in the recent past (the scandal of illegally imported waste from Germany, the red sludge catastrophe, etc.). The

28 On the important role of water supplies in the Hungarian economy see P. Szűcs et al. (Eds.), Vízkészletvédelem, Bíbor, Miskolc, 2009, pp. 21-36. 29 See Á. Tahyné Kovács, according to whom e.g. the inclusion of the precautionary principle would have been much more effective, or that the ban – as it appears in Art. XX, therefore probably – is only valid in that regard (i.e. no negative health effects, no restriction on GMOs), Jelölti válasz A genetikailag módosított szervezetekre vonatkozó szabályozásról egyes környezetjogi alapelvek, különösen a fenntartható fejlődés tükrében című PhD disszertáció opponensi véleményeire, 10 October 2013. 30 L. Fodor, ‘A GMO szabályozással kapcsolatos európai bírósági gyakorlat tanulságai’, in Csák (Ed.), Jogtudományi tanulmányok a fenntartható természeti erőforrások témakörében, Miskolci Egyetem, Miskolc, 2012, pp. 65-75, p. 74.

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above provision is clearly in line with the internationally recognised polluter pays principle31 as well as the jurisprudence of the European Court of Human Rights32 and the Council of Europe’s efforts33 in this regard. Furthermore, with regard to the issue discussed here, it seems relevant that the mentioned provisions are a clear declaration of state’s will as well. Nevertheless, merely a few weeks after the adoption of the new constitution, a strict control34 issued in April 2011 revealed thousands of hectares of predominantly corn grown from illegally35 imported GMO polluted seeds in Hungary,36 which had to be destroyed subsequently. A special Working Group was set up to help to clarify the situation in a legal sense,37 the farmers have been compensated, the procedure aiming at finding those responsible has not come to an end yet. Let these events – without further discussion – simply serve here as the initial starting point of a discussion focusing on certain related issues of international law. As – purely theoretically, without an in-depth examination of the notion of state sovereignty38 – it is clear that the GMO polluted seeds had been imported to the territory contrary to the state’s will. The only question that remains is whether this can be regarded as an act of aggression.

18.4

The Notion of the Crime of Aggression

The notion of aggression has been a permanent source of conflict in international law for decades. Recently, the 1998 Rome Statute of the International Criminal Court brought it 31 I. Olajos et al., ‘The Polluter Pays Principle in the Agriculture: A szennyező fizet elv megjelenése a mezőgazdaságban’, 1 Journal of Agricultural and Environmental Law (2006), pp. 29-55. 32 See among many others Okyay v. Turkey, 12 July 2005, No. 36220/97; Taşkin et al. v. Turkey, 10 November 2004, No. 46117/99; Fadeyeva v. Russia, 9 June 2005, No. 55723/00. See furthermore Manual on Human Rights and the Environment – Principles Emerging from the Case-Law of the European Court of Human Rights; Committee of Ministers, 2005/186 Addendum, 16 December 2005, CDDH, 61st meeting, Final Activity Report, point 2. 33 1993 Lugano Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, CETS No. 150, and 1998 Strasbourg Convention on the Protection of Environment through Criminal Law, CETS No. 172. So far, both conventions are light-years away from entering into force, although only three ratifications are needed for each… 34 Raisz and Szilágyi, ‘Development of Agricultural Law and Related Fields (Environmental Law, Water Law, Social Law, Tax Taw) in the EU, in Countries and in the WTO, 12 Journal of Agricultural and Environmental Law (2012), pp. 107-148, p. 111. 35 I.e. contrary to the regulations then in force on which see I. Olajos, ‘A géntechnológiai tevékenység szabályozása Magyarországon’, in Szilágyi (Ed.), 2008, pp. 73-89. 36 J.E. Szilágyi and A. Raisz, ‘Hungarian National Report, Scientific and Practical Development of Rural Law in the EU, in States and Regions and in the WTO’, CEDR, XXVI European Congress and Colloquium of Agricultural Law, Bucharest, 21-24 September 2011, p. 7. 37 See an excellent overview of the issue in Szilágyi, 2011, especially p. 41. 38 For a brief overview of state sovereignty see M. Miyoshi, Sovereignty and International Law, pp. 1-10, available at https://www.dur.ac.uk/resources/ibru/conferences/sos/masahiro_miyoshi_paper.pdf.

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Anikó Raisz back to the centre of attention again.39 The difficulties seem to have ended in Kampala40 for now. As the questions raised in this article might also affect the future of this very notion, a future already feared to be a difficult one by certain experts of international criminal law. The notion of the crime of aggression had not been determined until 1974, although its prohibition was already included in the Charter of the United Nations, i.e. in its French language version.41 In 1974, GA Res. 3314 (XXIX) was adopted, which on the one hand confines the circle of possible perpetrators to the states,42 on the other hand mentions the examples of conducts aggression may be realized with.43 Although according to Article 1, aggression – i.e. the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State – may be committed also in any other manner inconsistent with the Charter of the United Nations, not present in the list of Article 3; the provision urges to add that this may only be interpreted within the frame of the definition, i.e. the given GA resolution. In Kampala, this definition has been referred to with regard to the jurisdiction of the International Criminal Court; however, many scholars miss a new, different approach.44 As – although having had a great significance at its own time – the definition of 1974, focusing on state liability, hardly answers the requirements of international criminal law and individual criminal liability. 39 Aggression is one of the international crimes under the jurisdiction of the International Criminal Court (ICC), the content of which was highly disputed during the negotiations of the ICC Statute. The states agreed on coming back later to the question. (See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June – 17 July 1998, Official Records, retrieved from http://legal.un.org/icc/rome/proceedings/E/Rome%20Proceedings_v2_e.pdf, on 15 November 2013.) For further reading see T.V. Ádány, A legsúlyosabb jogsértések miatti felelősségre vonhatóság nemzetközi jogi tendenciái, különös tekintettel a Nemzetközi Büntetőbíróság joghatóságának előfeltételeire, PhD, 2011. 40 Finally, in 2010, in the review conference in Kampala (Uganda), an agreement could be reached on the most urgent questions related to the crime of aggression. For further reading see J.N. Maogoto, ‘Aggression: Supreme International Offence Still in Search of Definition’, 6 Southern Cross University Law Review (2002), pp. 278-317, pp. 281-282; S.N. Haskos, ‘An Argument for the Deletion of the Crime of Aggression from the Rome Statute of the International Criminal Court’, 23 Pace International Law Review (2011), pp. 249-268; on other aspects see E. Kirs, Demokratikus átmenet a háborús bűntettek árnyékában, Bíbor, Miskolc, 2012. 41 The French version of Art. 51 speaks of an ‘agression armée’, while the English of an ‘armed attack’ with regard to self-defence. This was the initial (doctrinal) starting point of the debate after 2001 concerning the United States of America and the legality of its counter-actions. On this debate see P. Kovács, Nemzetközi közjog, Osiris, Budapest, 2011, p. 124; L. Valki, ‘A 2001. szeptember 11-i terrortámadás és az önvédelem joga’, Acta Universitatis Szegediensis de Attila József Nominatae Sectio Juridica et Politica, 2002, pp. 419-429. 42 GA Res. 3314 (XXIX) of 14 December 1974, Art. 1. 43 GA Res. 3314 (XXIX), Art. 3. Basically, here belong the invasion, the bombardment of the territory of another state, the blockade of its ports or coasts, the attack on its armed forces, and other cases when armed forces which are within the territory of another state violate the conditions of the agreement on their presence, when the state’s territory is placed at the disposal of another state to perpetrate an act of aggression, or when armed bands, groups, irregulars or mercenaries are sent against another state. 44 R. Heinsch, ‘The Crime of Aggression after Kampala: Success or Burden for the Future?’, 2 Goettingen Journal of International Law (2010), pp. 713-743, pp. 723-724.

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The definition of aggression poses two key questions: who attacks? and how? GA Res. 3314 (XXIX) does not give a satisfying answer. The question of who attacks? was – understandibly – raised in the wake of recent terrorist attacks. For instance, the principle position of the United States is that not only states may commit aggression, but e.g. terrorist groups as well, and in this case the state disposes of the right to self-defence45 just as if it was an international conflict. Following this line of thinking – aware that certain economic circles may often be regarded to be more decisive elements of world politics than certain states –, multinational companies may appear as possible perpetrators as well. If we accept that they are subjects of international law in this regard, it is needless to pose the question whether there is a state behind a GMO attack. Although, naturally, this cannot be excluded either. Certain not attacked countries with a GMO free economy may easily profit from one or two concurrents falling out of the market after such pollution. However, in the concrete case, lacking accurate data, all this is mere speculation. Nevertheless, if we focus on the notion of the GMO attack, there is no need finding an answer to this problem. It is sufficient to recognize that aggression – in the sense of international law – may not necessarily be committed by a state, as it may be derived from the so-far only existing usable definition of aggression. The question of how the attack occurred appeared much earlier,46 in the 1960s, 1970s, mainly from the part of the developing states. Namely, they found that an approach which says that coercion against a state may only be committed by the means of military actions is one-sided, far from reality. The Great Powers obviously turned a deaf ear to the proposal of qualifying economic coercion as an act of aggression.47 The world has nevertheless experienced great changes ever since. It became obvious that a coordinated hacker-attack may be at least as devastating as an armed attack. Probably the 2007 events in Estonia helped the European states to realize that they – like the United States of America – also need the elaboration of national strategies against hacker attacks.48 It is equally obvious 45 Furthermore, the USA introduced the so-called ‘pre-emptive defence’ doctrine, which is until date highly disputed and criticized. On this topic see furthermore A. Carty, ‘The Iraq Invasion as a Recent United Kingdom “Contribution to International Law”’, 1 EJIL (2005), pp. 143-151; O. Corten, The Law against War, Hart Publishing, Oxford, 2010; A.D. Sofaer, ‘On the Necessity of Pre-emption’, 2 EJIL (2003), pp. 209-226; M. Bothe, ‘Terrorism and the Legality of Pre-emptive Force’, 2 EJIL (2003), pp. 227-240. 46 Or even on a Soviet proposal of a similar sense in the 1930s see Maogoto, 2002, p. 287. 47 See the travaux préparatoires of the 1969 Vienna Convention on the Law of Treaties (1155 UNTS 331), especially the concerning – and denied – Brazilian proposal. See M.E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties, Martinus Nijhoff Publishers, Leiden, 2009, p. 643. Nevertheless, the Final Act of the Vienna Convention contains a – rather symbolic – passage reprehending economic coercion. For details see Kovács, 2011, p. 119. See furthermore M. Domb, ‘Defining Economic Aggression in International Law: The Possibility of Regional Action by the Organization of American States’, 11 Cornell International Law Journal (1978), pp. 85-105. 48 Ever since, the news are full of records of such cyber attacks, see among others www.hirado.hu/Hirek/2012/ 03/30/15/Kina_mi_nem_tamogatunk_hackereket.aspx; www.hirado.hu/Hirek/2012/03/08/14/Kiberhabo

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that deliberate, grave environmental pollution – may it affect water (including groundwater), air or soil – may also cause as much destruction as an armed attack.49 Following this way of thinking, we come to the GMO attack, where the central question is not whether a (deliberate) GMO pollution damages the environment,50 and if so, to what an extent, but only that by violating the precautionary principle even the existence of the danger may establish to qualify a deliberate GMO pollution as an attack, a coercion. And not only because of the damages suffered by nature or human rights concerns,51 but as the GMO – at least on the European market – is an economic question.52 European consumers generally prefer namely GMO free products; evidently, Article XX of the new Hungarian Constitution aims at helping the situation of the Hungarian agricultural products both in internal and external markets by spreading this GMO free image. All this could nevertheless lead us back to the question of who attacks?… Necessarily, such an idea may seem strange to those denying the raison d’être of the precautionary principle and relying completely upon free trade as provided by the WTO.53 However, the author finds this approach highly questionable simply referring to the Rio Declaration54 and the good old common sense, and assumes at the same time that the idea brought up in this article could more easily find supporters in the old continent than in America, as indicated by the differing standing points. Europe is more eager to respect the

49

50 51

52 53 54

ru_es_nemzetkozi_hackerakciok_2012_ben__idorendben.aspx; www.kormany.hu/hu/honvedelmi-miniszterium/honved-vezerkar/hirek/kibertamadas-hatasait-vizsgaltak (retrieved on 6 April 2012). This idea is basically supported both by the notion of ‘ecocide’ and by the Biological as well as the Chemical Weapons Conventions (Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, 1974 UNTS 45, and Convention on the prohibition of the development, production and stockpiling of bacteriological (biological) and toxin weapons and on their destruction, 1015 UNTS). (One of the vanguards of the fight against ecocide in a broad sense, P. Higgins takes a different approach in her work ‘Eradicating Ecocide’ – see www.eradicatingecocide.com, retrieved on 6 April 2012, naming ecocide as a separate international crime, see furthermore www.guardian.co.uk/ environment/2010/apr/09/ecocide-crime-genocide-un-environmental-damage, retrieved on 6 April 2012. Although her origination is more than topical, the author of the present article considers that, with regard to the notion of a GMO attack as mentioned here, it would be easier (and therefore more probable) to widen the notion of aggression than to create a completely new category of international crime. Or, maybe, the present suggestion could pave the way for her idea as well. Nevertheless, politics take over from lawyers at this point; therefore, the outcome is not foreseeable. This approach is backed both by the experience and the rules of international environmental law as well. The European Court of Human Rights (ECtHR) have already faced the GMO question, but – as it seems – was beware entering the details and merely declared that ‘it is not yet known what influence GMOs have on the environment and the health of humans’. See Hubert Caron et al. vs. France, Inadmissibility, 19 June 2010, No. 48629/08. Its conclusion, saying that the petitioners have no victim status because of the distance between their lands and those polluted with GMOs, raises several questions that exceed the frame of this article. Nevertheless it is of utmost importance that the ECtHR did not exclude per se the violation of Arts. 2 and 8 ECHR, and of Art. 1, First Additional Protocol. See furthermore J.E. Szilágyi, ‘Környezetvédelem az európai uniós jogban’, in J.E. Szilágyi (Ed.), 2010, pp. 51-72. See Stephenson, 2010, above. On the precautionary principle see McCaffrey, 2001, pp. 97-98.

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precautionary principle, while the United States is more reluctant to interfere with the actions of private companies.55 More understandable would nevertheless be the scepticism towards the approach examined in this paper asking how could we ponder on a GMO attack as an act of aggression if the only existent related universal hard law material, the Cartagena Protocol56 did not even address the question of liability for harm resulting from the transboundary movement of GMOs? And the answer would be: as the two issues are different. Although having several common points, the first should be addressed on the basis of sovereignty, while the latter on the basis of the classic rules of international law on liability,57 as e.g. foreseen by the International Law Commission’s Draft Articles on the Prevention of Transboundary Damage from Hazardous Activities. These are two separate issues; important would be to realize that the time to think about this question is now. Even if we finally reject the idea of accepting a GMO attack as an act of aggression, it has to be discussed now, until GMOs are so widespread that any alike conversation would be meaningless.58

18.5

Conclusions

According to the hypothesis of the present paper, a GMO attack constitutes a grave violation of state sovereignty, and it is a form of coercion, the use of force against a state. Therefore, the – otherwise too narrow – notion of aggression should be broadened in order to secure a proper place for the GMO attack in international law. As stressed above, questions as to the notion of aggression have risen not only nowadays, but decades earlier. Today, the notion should be broadened in two regards: as to who and how attacks?; i.e. the perpetrator may not necessarily be a state (in the international criminal legal sense, a state leader), and the use of force against a state may not necessarily be committed in the forms known from GA Res. 3314 (XXIX). As a deliberate GMO-pollution originating from abroad, and contrary to the express will of the state is the violation of state sovereignty, which may even have human rights consequences (among others the violation of the right to health). The territory of the state is violated anyway, though, admittedly, not in a classical way. Of course, above all with 55 For an overview of the difference see Hutchinson, 2008-2009, pp. 237-246; Grossman, ‘Protecting Health, Environment and Agriculture: Authorisation of Genetically Modified Crops and Food in the United States and the European Union’, 2 Deakin Law Review (2009), pp. 257-304. 56 See McCaffrey, 2001, p. 95. 57 Furthermore see J. Bruhács, ‘A környezeti károk miatti nemzetközi felelősség büntetőjogi aspektusai’, in F. Sükösd (Ed.), Emlékkönyv Markos György egyetemi adjunktus tiszteletére, PTE Állam- és Jogtudományi Kar, Pécs, 2009, pp. 37-56. 58 For a new approach to international law and its substantial elements see A.A.C. Trindade, International Law for Humankind – Towards a New Jus Gentium, The Hague Academy of International Law Monographs, Vol. 6, Martinus Nijhoff Publishers, Leiden, Boston, 2010.

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regard to the (state and non-state) powers standing behind the GMO, the author does not count with the appearance of the notion of a GMO attack in international legal documents in the near future. This article merely aimed at raising the question, as jurisprudence should discuss the possible dogmatics of the GMO attack until the situation changes (for the better).

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Part IV Developments in European Law

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The Compensation for Agricultural Land Confiscated by the Beneš Decrees in the Light of Free Movement of Capital

Ágoston Korom* and Laura Gyeney**

19.1

Introduction

Due to the disputes flared up in connection with the second Juhász Petition regarding the Beneš decrees,1 and to the resolution issued by the Legal Affairs Committee of the European Parliament (JURI)2, in the institutional arena of the European Union, the question once again came to the fore how the Beneš Decrees declaring the principle of collective guilt can still be kept in force in an EU Member State such as Slovakia, which fully embraces the requirement of the rule of law and shares the general European values.3

* Assistant professor, National University of Public Service. E-mail: [email protected]. ** Associate professor at the Pázmány Péter Catholic University, Faculty of Law; Director of the De Gasperi Institute. E-mail: [email protected]. 1 Petition No. 0070/2012 by Imre Juhasz (Hungarian), bearing two signatures, on a request for the repeal of Resolution 1483/2007 of the Slovak National Council concerning the inviolability of the Beneš Decrees. Summary of Petition: ‘The petitioner refers to Resolution 1487/2007 of the Slovak National Council, which established that the Beneš Decrees issued between 1944 and 1948 were inviolable and incontestable. The petitioner points out that discrimination against the Hungarian and German minorities in Slovakia constitutes contravention flagrant violation of Arts. 2 and 6 of the Treaty on European Union (TEU), the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. He therefore asks the European Parliament to take action to have the above Resolution repealed and calls for Slovakia’s membership of the EU to be suspended if it continues its policy of violating human rights.’ 2 The draft opinion adopted by JURI on 11 February 2014 breaks away from the existing line carried by the European Commission according to which the Beneš Decrees are considered as historical documents on the basis of the Frowein report, thus it no longer has a legal effect and it does not fall into the field of competence of the European Union. The document of the Committee on Legal Affairs of the EP is the first legal opinion, which states that the presence of the Decrees causes uncertainty in the Slovak legal order, and therefore, it would be desirable to further investigate the case. 3 See more on the requirement of the rule of law in the European Union: Jürgen, SCHWARZE: L’État actuel et les perspectives du droit administratif européen – L’entrée en matiere, In L’état actuel et les perpectives du droit administratif européen. Analyses de droit comparé Bruylant, Bruxelles, 2010, 15.

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It is well known that Edvard Beneš, president of the Czechoslovak Republic, issued the decrees directly after the World War II.4 Hungarians5 declared collectively guilty6 were affected directly by thirteen and indirectly by 20 of the 143 Presidential Decrees. For many – including the authors of this study – it is inconceivable that these decrees should be even slightly compatible with EU law and in general with the values conveyed by the European Union. In the present document, we will attempt to examine the compatibility of the decrees with EU law in relation to the fundamental economic freedoms, which may be surprising given that legal acts applying collective guilt appear to belong prima facie to the group of questions related to minority rights, and fundamental rights protection, rather than the internal market freedoms. We would also like to state, as a preliminary point, that neither the fundamental economic freedoms nor the ‘legal development’ occurred in respect of the property rights declared in the European Union’s Charter of Fundamental Rights7 does not require the massive restitution of property confiscated by the decrees, so we do not think that this study would start a landslide and lead to an ‘unmanageable’ situation.

4

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6

7

See Attila, HORVÁTH: A Beneš-dekrétumok és a hozzá kapcsolódó diszkriminatív intézkedések Csehszlovákiában 1945 és 1948 között, In: Sui Generis vagy politikai megfontolások? A szlovákiai magyar kisebbségekkel kapcsolatos intézkedések az uniós jog tükrében, különös tekintettel az Európai Unió Bizottsága álláspontjára. A Magyar Jogász Egylet Európai Unió Joga Szakosztálya által 2013. Január 22-én szervezett konferencián elhangzott előadások, Szerkesztette: Dr. Korom Ágoston – Dr. Gyeney Laura, Budapest, 2013 Kisebbségi Jogvédő Intézet. ‘On the basis of the Decrees, it had to be determined who counted as Hungarian. This was particularly difficult in areas of mixed population. Not only Hungarian native speakers were thus categorized, or those who identified themselves as Hungarians during the census, or members of some Hungarian party, but people were also categorized according to subjective criteria, for example, who was considered to be Hungarian by their environment.’ See HORVÁTH, Ibid., p. 44. No. 71 of the Decrees, dated 19 September 1945 ordered Hungarian men between fourteen and sicty and women between 15 and 50 years of age, deprived of their citizenship, to community service. The infamous presidential decree No. 88 was released on 1 October 1945, which introduced a general obligation to work.’ See HORVÁTH, ibid., p. 45. The European Union Charter of Fundamental Rights Art. 17 (1): ‘Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions.’ Charter of Fundamental Rights of the European Union, OJ C 83, 30 March 2010, pp. 389-403.

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It is well known, that, in an EU context, the enforceability of the fundamental rights8 and in particular minority rights, is in general very limited.9 However, the case-law of the Court of Justice of the European Union relating to the fundamental economic freedoms and to EU citizenship can be invoked effectively in some cases, where the Member States’ legal provisions that are detrimental to national minorities, or their official practice are contrary to the EU law and practice. We believe, therefore, that the fundamental economic freedoms and rights arising from EU citizenship can be invoked effectively in case of eventual political resistance sensible at EU level, coming from the Member States. The sine qua non of the existence of the economic community is the consistent application of EU law10; what is more, the rights resulting from the EU civil rights instruments established to promote the development of a European identity cannot reach their goal by a ‘selective application of law.’ As far as the exercise of rights arising from EU citizenship is concerned, the case-law of the Court of Justice shows a much more extensive practice than what the founding Treaty and the secondary law contain. Due to the complex and technocratic nature of this significant legal development, sometimes even lawyers have difficulty to understand it, so the selective approach would obviously undermine the uniform application of law.11 When it comes to the EU ‘assessment’ of the decrees, first and foremost the political and legal aspects must be clearly separated. We consider the decisions12 in which the accession of a State is decided, without imposing the repeal of legislation similar to the

8

For us the application of the principle of collective guilt is clearly inadmissible, however, from the aspect of the assessment of EU law, it is clear that despite legal developments occurring in this area, EU law – at least in its current state – is not capable of effectively sanction situations of this kind. Although the Court of Justice of the European Union has been respecting fundamental rights during its jurisprudence for decades – in accordance with the case-law of the European Court of Human Rights as far as possible –, it is greatly weakened by the fact that fundamental rights are only ‘taken into account’ in the frame of the application of EU law. These criteria of applicability were not changed substantially by giving legally binding powers to the Charter of Fundamental Rights of the European Union. CRAIG, Paul and DE BURCA, Grainne: EU Law, Text, Cases and Materials, 5th edition, 2011, Oxford, p. 397. 9 VIZI, Balázs: Európai Kaleidoszkóp- Az Európai Unió és a Kisebbségek, L Harmattan, Budapest, 2013, p. 13-25. 10 Edouard, DUBOUT: L’invocabilité d` évinction des directives dans les litiges horizontaux Le “bateau ivre” a-t-il sombré?’, 2 RTDE (2010), p. 295. 11 See N. Nic Shuibhne, ‘The Resilience of EU Market Citizenship’, 47(6) Common Market Law Review (2010), p. 101, Laura Gyeney, ‘Uniós polgárság – a piacorientált szemlélettől való elszakadás’, 2 IAS (2012), pp. 2021. Ágoston Korom, ‘Selye János Egyetem és uniós polgárság, Sui Generis vagy politikai megfontolások? A szlovákiai magyar kisebbségekkel kapcsolatos intézkedések az uniós jog tükrében, különös tekintettel az Európai Unió Bizottsága álláspontjára. A Magyar Jogász Egylet Európai Unió Joga Szakosztálya által 2013. január 22-én szervezett konferencián elhangzott előadások’, Szerkesztette: Dr. Korom Ágoston – Dr. Gyeney Laura, Budapest, Kisebbségi Jogvédő Intézet, (2013), p. 23-28. 12 The report of the European Parliament’s Foreign Affairs Committee by Elmar Brok concerning the Czech Republik – based on the conclusions of the Frowein report – concluded that the decrees were not an obstacle to the accession of the country.

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decrees as a condition of accession as falling under political judgment. In some ways, the decision about a petition to the European Parliament is considered to be primarily a political decision, despite the obvious legal elements. It should be stressed, however, that the decision of the EU institutions, and ultimately of the Member States, under which the candidate state can become an EU Member State despite keeping the decrees, or similar legislation, in force, does not mean that after the accession of that State, the compatibility of legal acts13 within the temporal scope of EU law and the EU law should not be examined. Even a European Parliament petition,14 essentially closed, on that topic cannot change15 this. However, as already mentioned above, it is necessary to draw attention to the purely legal considerations, which should not be ignored in the case of the functioning of a community held together by law, in contrary to the arguments opposing the EU assessment of the decrees. Maintaining the European Union, which is an economic community16 mainly held together by law even to this day, requires the fullest and consistent application of the EU ‘law’, without political criteria. As a result, the arguments according to which the application of EU law can be excluded simply because it would change the conditions eventually created after the Second World War or at least could be perceived as such, are inadmissible. The main assurance and pledge of maintaining the peace between the nations of Europe is the uniform and consistent application of EU regulations in all Member States, even in cases where eventual political conflicts of interest may arise. Thus, to ensure the European Union and its long-term goals, such as peace and prosperity,17 EU law must be complied with and enforced without any political interest. The argument often voiced by the Slovak Republic that not only Slovakia and the Czech Republic had adopted similar legislation to the decrees, but also the ‘old Member States’, does not change much the above.18 This argument is irrelevant in terms of EU law, and what is more is absolutely unacceptable. Contrary to international public law, EU law does not accept the principle of reciprocity – it is not possible for any Member State to justify their practice of violating EU law by pointing out that examples in other Member States’ practice can be found.

13 Legal acts – as later will be discussed – can constitute both administrative practice and judicial interpretation. 14 Imre Juhász has reached out to the Petitions Committee prior to 2007 as well. At the conclusion of the case, the Petitions Committee essentially used the argumentation by the European Commission, according to which the decrees have no legal significance, they are merely considered as historical documents. 15 Considering that the CJEU has the monopoly of authentic interpretation of EU law, a parliamentary resolution is not legally binding. 16 The European Union is still mainly based on economic considerations, despite all efforts pointing in the opposite direction. 17 The Union’s aim is to promote peace, its values and the well-being of its peoples. TFEU Art. 3(1). 18 The position of the Slovak Republic, Art. 9.

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Finally, another frequently voiced argument is that the matter of the Beneš decrees had been discussed prior to accession.19 It is true that prior to the enlargement in 2004, as the closure of the decree debates related to the accession reports, the above mentioned Frowein report20 was ordered, which clearly states that the decrees shall not prevent the accession of the Czech Republic. This opinion was based on the assumption, inter alia, that from the moment of the accession, every EU citizen would enjoy equal rights in the Czech Republic. However, the position of the Slovak Republic makes it clear21 that the Frowein report was confined to the analysis of the conditions in the Czech Republic, and drew conclusions on that basis with regard to the Slovak national law as well. This also implies that the overall examination of the Slovak national law was neglected. The present study aims to analyse the Compensation Law adopted after Slovakia’s EU accession,22 more specifically its central provision, which allows only persons of Slovak nationality and permanent residents of Slovakia for the submission of claims for compensation.23 The provision examined above will be reviewed from the aspect of the fundamental economic freedoms, more specifically the free movement of capital. Finally, we will attempt to answer as to whether the infringing nature of the judicial and administrative practices after the EU accession of Slovakia, allowing the survival of the Beneš decrees, can be determined even in the absence of any cross-border element. Thus, in the above investigation, it is necessary to discuss the temporal scope of application of EU law, the questions regarding the effects of the property autonomy of Member States as stipulated in Article 345 of the TFEU, the justification of the contested provisions

19 A particularly sensitive issue wast he compatibility of the so-called Benes decrees with the EU’s accession requirement. As the Czech Constitutional Court held in 1995 that they still formed the part of the Czech legal order, the question arose whether the EU could accept a new Member State with such a legacy. Frank Hoffmeister, ‘The Contribution of EU Practice to International Law’, in Marise Cremona (Ed.), Developments in EU External Relations Law, Oxford University Press, 2008, p. 113. 20 The work of the three-member committee of experts examining the relation between the Decrees and the EU accession was led by Professor Johen Frowein, the author of the study underlying the EU sanctions against Austria. The final judgment of the report is that the EU membership of the Czech Republic did not require the repeal of the Decrees and other related laws. 21 Ibid., Art. 17. This confirms that the relevant materials were associated with the Czech Republic according to the Slovak Government’s position, and that the accession of the Czech Republic – as originally planned – would have taken place earlier. 22 Act No. 503/2003 Coll. on the Restitution of Land Ownership (the full name of the law: Act No. 503/2003 Coll. on restitution of ownership to land and on the change and complementing of the Act of the National Council of the SR Nr 180/1995 Coll. on Certain Measures for the Settlement of Ownership Rights to Land as amended). 23 Act No. 503/2003 on the Restitution of Land Ownership, § 2(1) Under this act, the right to the restitution of land shall be exercised by the person who is a Slovak national and has permanent place of residence in the territory of the Slovak Republic, and whose land and property were transferred to the State or other legal person as defined in § 3, during the period between 25 February 1948 and 1 January 1990 (hereinafter referred to as ‘relevant period’).

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by a derogation period granted in the Act of Accession, the so-called ‘Moratorium’, and the applicability of the principle of free movement of capital in non cross-border situations.

19.2

The ratione temporis of EU Law

The principle of the primacy of EU law over national law24 clearly shows that the legislation based on an act which were adopted before the Member State’s accession but are not compatible with the provisions of EU law, have to be amended in order to respect the acquis to the fullest. In accordance with the position often stated by Slovakia and the EU institutions,25 it really cannot be disputed that, in the Benes decrees are a ‘legislative package’ created prior to the accession of the Member State, the analysis of the Decrees’ compatibility with EU law is fundamentally unnecessary. The situation is completely different, however, when it comes to the analysis from an EU approach of the legislative, administrative and judicial practice adopted as a consequence of the decrees and in relation to them after Slovakia’s accession, where the above reasoning referring to the temporal scope of EU law cannot stand up to scrutiny. The correctness of our view seems to be supported by the principle crystallized in the constant practice of the Court of Justice of the European Union, according to which EU law26 should be applied to the actual consequences27 of legal acts adopted before the accession of a Member State. This is also reinforced by José Manuel Barroso, President of 24 The principle of primacy of EU law means that in the case of conflict, EU law prevails over national law. The case-law of the Court of Justice of the European Union: Judgment of the Court of 15 July 1964 in the Costa v. ENEL case, Case 6/64, ECR 1964, p. 1141; Judgment of the Court of 17 December 1971 in the Internationale Handelsgesellschaft case, Case C-11/70, ECR 1970, p. 1125; Judgment of the Court of 9 March 1978 in the Simmenthal case, Case C-35/76, ECR 1976, p. 1871. 25 At this point it is necessary to mention the Slovak Republic’s position concerning the Juhász petition, repeated almost as a mantra, that the decrees are exempt from the temporal scope of EU law. The Slovak party wishes to support their position by invoking the case-law of the European Court of Justice. The judgment of the Court of 10 January 2006 in the Ynos case C-302/04 invoked by the Slovak Republic, the Court confirmed that its jurisdiction extended only to facts subsequent to the accession of a Member State to the European Union (ECR 2006 I-00371, Para. 37). The Slovak government also invoked the judgment of the Court in the Gennaro Curra case. The Slovak government also relied on the judgment of the Court Gennaro Curra case (C-466/11, Gennaro Curra and Others v. Bundesrepublik Deutschland [2012] ECR 0000), where in the central case, Italian citizens demanded compensation from the German State for their grievances suffered during their deportation in the Second World War, which the European Court of Justice did not consider to fall within the temporal scope, nor to fall within the scope of EU law. The regulation adopted as a consequence of the Decrees and its judicial application, contrary to the foregoing, falls undoubtedly within the scope (free movement of capital) and temporal scope of EU law (those were created after the accession), as opposed to the fundamental cases of the above mentioned judgments, where these conditions are obviously not met. 26 Among other things, the judgment of the Court of Justice of the European Union of 12 July 2012 in the Marie-Nathalie D. Hoop case, Case C-224/98, ECR 2002 I-06191, Para. 25. 27 Currently this means a date following the accession of the Member State to the European Union.

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the EU Commission, who also declared in his written answer to a question28 ‘all new Member States are bound by the treaties and the case-law of the Court.’29 It is therefore important to state that the facts of the situations violating EU law that we will later examine in detail have occurred after 1 May 2004, i.e. after the EU accession of the Slovak Republic. Article 345 of the TFEU ensuring the right to autonomous property, and the free movement of capital According to the Article 345 of the TFEU, ‘The Treaties shall in no way prejudice the rules in Member States governing the system of property ownership.’ The issues relating to property and the system of property ownership, therefore, as a rule, are the responsibility of the Member States. This leads to the conclusion that the Member States enjoy complete freedom with regard to their legislation and application of law when it comes to determining who is entitled to compensation and to what extent. We must not forget, however, the consistent case-law of the Court of Justice of the European Union,30 according to which the Member States may not invoke Article 345 on property ownership31 to oppose the economic freedoms – which also include the free movement of capital.32 This requirement has been strengthened in the principled answer to the written question Commission of the European Union,33 in which the Commission clearly states that although the system of property ownership remains within the competence of each Member State under Article 345 TFEU, the said provision does not mean that the system would be exempt from the fundamental principles of the Treaty.34

28 Answer to written question: E-009825/2012. 29 In the context of the adoption of the Lisbon Treaty, the Member States have formally confirmed the supremacy of EU law: ‘The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.’ (Declaration number 17 concerning the primacy of EU law.) As for new Member States, they are bound by the Treaties and the case-law of the Court of Justice. Consequently, the legislation that has been adopted in a Member State before joining the EU, and which is incompatible with the provisions of EU law, should be amended in order to respect the EU acquis. 30 Judgment of the European Court of Justice in Case C-182/83, Robert Fearon & Company Limited v. Born Irish Land Commission [1984] ECR 03677 Art. 7; Judgment C-302/97 in the Klaus Konle case, 1 June 1999, ECR 1999 I-03099. 31 Arts. 295 and 222 of the TEC, in the versions of the founding treaties no longer in force. 32 Louis Dobouis and Claude Blumann, Droit matériel de l’Union européenne, Montchrestien, 2012, p. 496. 33 Internal Market Commissioner Michel Barnier’s response to Tamás Deutsch’s written question, 25 May 2012 reply E-003419/2012. 34 This statement of the Commission clearly refers to the fundamental economic freedoms, as still the most important part of the founding Treaties, despite every effort to the contrary.

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Ágoston Korom and Laura Gyeney The position of the Slovak Republic35 is not correct: according to this, the founding treaty provisions concerning property ownership exclude the European Union’s competence, so that the Member States invoking those are exempt from the otherwise unavoidable requirement of enforcing the fundamental principles of economic freedoms – in particular the free movement of capital –, such as non-discrimination. The free movement of capital is one of the main fundamental economic freedoms of the European law.36 The objective of full liberalization was formulated in 1985 in the White Paper adopted on the European Community’s legislative programme. The result of the legislative programme, the Directive 88/361/EEC37 provided the complete liberation of capital movements, while in the Annex I the cases of capital movement were listed nonexhaustively. This includes direct investment and real estate investment as well. In the case-law of the Court of Justice – inter alia in the Festersen judgment38 – it has been established that cross-border real estate sales is realizing capital movement. Crossborder receipt of inheritances, according to the judgment of the Court in the Hans Eckelkamp case,39 is also considered to be movement of capital. As we mentioned above, the list in Annex I is not exhaustive, so even the restitution of confiscated property can constitute capital movement, as it has also been confirmed by the European Commission’s answer to a written question.40 Furthermore, it is important to point out that according to the case-law of the Court of Justice of the European Union relating to cases of free movement of chapital, the unlawfulness of national legislation can be determined if that law hinders the free movement of capital between Member States. Furthermore, in the Festersen case, the Court – referring to former cases – made it clear which were the measures that had a restrictive effect on the freedom of movement of capital. This includes any rule adopted by a Member State, which is liable to discourage

35 Position of the Slovak Republic, Art. 15. 36 The fundamental nature of the free movement of capital was further strengthened by the massive case-law developed by the CJEU. Jacques Pertek, Matériel de L’Union européenne, Thémis droit, puf, Paris, 2005, p. 131. 37 Council Directive 88/361/EEC of 24 June 1988 for the implementation of Art. 67 of the Treaty (OJ L 178, p. 5). 38 Judgment C-370/05 of the Court of Justice of the European Union of 25 January 2007 in the Uwe Kay Festersen case, ECR 2007 I-01129, Para. 23. 39 Judgment C-11/07 of the European Court of Justice of 11 September 2008 in the Eckelkamp case, ECR 2008 I-06845, Para. 41. 40 The Commission admitted in its response (E-008448/2013) that ‘the restitution of confiscated property is considered a capital movement, and that the same is true for the receipt of inheritances in accordance with the 1988 Council Directive on the movement of capital. The Commission also confirmed that when Member States enforce the prohibition of citizenship-based discrimination in respect of the free movement of capital and the prohibition of restrictions affecting this freedom, they must also observe the provisions of the Charter of Fundamental Rights of the European Union relating to the right to property and to the general prohibition of discrimination.’

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foreigners from investing in a Member State, and the residents of that Member State from investing in other Member States.41 Thus, regardless of discrimination, any provisions that discourage capital owners from investing in other Member States are considered unlawful, and the Court of Justice of the European Union will not recognize the legitimacy of these.42

19.3

The Slovak Compensation Law in the Light of the Derogation Provisions

Following the rebuttal of the Slovak arguments regarding property ownership, it is necessary to examine whether the discriminatory provisions of the Slovak Compensation Act can be justified by the derogation period allowed by the Accession Treaty. As we know, during the so-called derogation period after accession, new Member States may maintain their legislation in force at the date of their accession. Similarly to the majority of the Member States which joined the EU in 2004, the Treaty of Accession of the Slovak Republic allowed that, in spite of the obligations arising from the treaties, for seven years43 after the date of accession, this Member State maintain its provisions going against non-Slovak residents concerning the acquisition of ownership of agricultural land and forests, contained by the amended versions of Acts 180/1995 and 229/1991.44 The question arises whether the provisions of Act 508/2004, in the focus of our research, that allow discrimination on the basis of nationality after the accession of the Slovak 41 […] it follows from settled case-law that the measures prohibited by Art. 56(1) EC, as restrictions on the movement of capital, include those which are likely to discourage non-residents from making investments in a Member State or to discourage that Member State’s residents to do so in other States. See Festersen case Para. 24. 42 The fundamental idea behind the expansion of the protective scope of the freedoms is that the prohibition of discrimination in cross-border movements is insufficient to reduce and ultimately to abolish the existing national restrictions in order to integrate the different European economies into one Common Market. This idea carries equal weight with respect to free movement of capital. In the Golden Shares I case the Court made it reasonably clear that it was also prepared to apply a non- hindrance test in the ambit of free movement of capital. The Court found that a national measure is subject to Art. (56(1) EC – even though the rules may not give rise to unequal treatment- if it is capable of impeding capital movements and dissuading investors in other Member States from investing and thus, capable of rendering the free movement of capital illusory. Steffen Hindelang, The Free Movement of Capital and Foreign Direct Investment. The Scope of Protection in EU Law, Oxford University Press, 2009, pp. 119-120; Leo Flynn, ‘Free Movement of Capital’, in C. Barnard and S. Peers (Eds.), European Union Law, Oxford University Press, pp. 456-466; Louis Dobouis and Claude Blumann, Droit matériel de l’Union européenne, Montchrestien, 2012, p. 492. Marcel Szabó et al., ibid., p. 304. 43 The possibility of extending the derogation period provided by the Accession Treaty by three more years must be added to the seven years. 44 Act No. 180/1995 Coll. on Certain Measures for the Settlement of Ownership Rights to Land, Act No. 229/1991 Coll., on the Provision of Ownership in Relation to Land and Other Farming Property.

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Ágoston Korom and Laura Gyeney Republic – for the period between 1 May and 31 December 200445 – with regard to the restitution of agricultural property46 can be justified by referring to the derogation period47 concerning agricultural land defined in the Treaty of Accession of the Slovak Republic. We can answer the above question by examining the derogation periods from a European aspect, on the basis of which it can be clearly determined, therefore, in which cases the Member States may invoke those derogation periods. Similarly to the primacy of EU law, the principles concerning the legal effect and the interpretation of the derogation periods have been developed by the case-law of the Court of Justice of the European Union through its law developing activity. From a European aspect, the derogation periods facilitate the preparation and adaptation of a Member State in the first post-accession period, so they help the new Member State through the transition leading to the full application of the acquis. However, it is important to stress that the scope of the Member States is not unlimited even during the transition (derogation) period provided by the accession treaties: derogation periods typically allow to keep the legislation in force at the accession of the Member State for a longer time. As for the 503/2003 Compensation Act, subject to inquiry in the present study, it was adopted on 24 October 2004, while the Accession Treaty of the Slovak Republic and ten other Member States was signed on 16 April 2003, so in no way could it constitute existing legislation at the accession, therefore, as a rule, it is not subject to the derogations granted to the Member State, stipulated in the Accession Treaty. The judgment48 of the Court of Justice of the European Union in the Klaus Konle case specified ‘the concept of the legislation in force.’ Accordingly, the national provisions adopted during the derogation period are not excluded automatically from the scope of the derogation period.49 If the enacted modification merely facilitates the exercise of a fundamental economic freedom guaranteed by the founding treaties, the derogation period covers the amended

45 Under the Compensation Act, claims could be submitted during this period could be submitted to the demands. Act No. 503/2003 on the Restitution of Land Ownership, Para. 5(1): The right to reclaim land property can be invoked by the person entitled to do that until 31 December 2004 at the district land registry where the land in question belongs, and if they present the reference to the facts set out in Para. 3. If the entitled does not invoke their right before that date, the right is lost. 46 Act No. 503/2003, as noted above, only allows for Slovak citizens to submit claims for restitution. 47 Hungary, and, like the Member States which joined in 2004, but with some differences in the stipulated derogation period. 48 The judgment of the Court of Justice of the European Union of 1 June 1999 in the Klaus Konle case, C302/97, cited above, ECR 1999 I-03099. Klaus Konle, German national acquired ownership of land at a Tyrolean auction, which, however, was considered as conditional acquisition, given that it depended of the decision of the Austrian land registry office. The Court ruled that the fact that the acquisition of ownership depended on the discretion of the Austrian authorities included the possibility of discrimination on grounds of nationality. 49 See judgment Konle, points 52-53.

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regulation itself as well.50 If, however, the amendment of the regulation enacted during the transitional period is based on a different logical order compared to the one in force, or if it introduces new procedures, that legislation will not be deemed to be covered by the derogation stipulated in the Accession Treaty, applying to the existing national regulations. In this case, the Member State cannot invoke the derogation period, and instead of the Accession Treaty, the provisions of the founding treaties should be applied to it. It is also important to point out that the rules concerning the legislation in force at the time of accession must be interpreted strictly in accordance with the case-law of the Court of Justice of the European Union. Indeed, while in the Accession Treaties51 of other Member States – such as Hungary or the Republic of Austria – the accession treaty expressly stated that the derogation period for agricultural land and real estate applies to the extension of the applicability of the existing legislation of the Member State at the time of accession, the Accession Treaty of the Slovak Republic stipulates that the amended rules of Acts 180/1995 and 229/1991 on agricultural land and forest land acquisition can be maintained for a period of seven years from the date of accession.52 This textual difference, however, does not mean that the Accession Treaty of the Slovak Republic would lead to different conclusions than the above. The Accession Treaty, by letting the provisions specifically set out in the amended versions of said acts remain in force, actually arrives at the same result as if it allowed the extension of the applicability of the legislation in force at the time of signature of the Accession Treaty.53 We can state, however, that the provisions of the 503/2004 Compensation Act do not facilitate the exercise of rights of other Member States’ citizens arising from the European law in any way, since the legislation does not point to that direction by its nature.54 Moreover, the provisions disadvantaging nationals of other Member States and persons whose principal place of residence is not in Slovakia – for example Slovak nationals working in the United Kingdom, being residents of that country – exclude the possibility that the law in question could be interpreted as the promotion of the European fundamental freedoms. Thus, the principle developed by the Court and detailed above may not be invoked to justify the provisions in question.

50 That is, during the derogation period, the Member States shall only change its existing legislation if the enacted changes are aimed at facilitating the privileges of citizens of other EU Member States. 51 Treaty of Accession of the Republic of Austria does not apply to agricultural land, but to secondary real estate. However, this has no relevance to the principles relating to the existing legislation. 52 To which the three-year extension option stipulated by the Treaty of Accession has to be added. 53 Our argument is further strengthened by the fact that, under the other related provisions of the Treaty of Accession of the Slovak Republic, nationals of other Member States’ shall in no way be treated less favourably than in which position they were on the date of signature of the Accession Treaty. 54 The restitution of assets lost before the accession of a Member State does not facilitate the economic freedoms directly.

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In addition to this, we have to see that the provisions of the Accession Treaty of the Slovak Republic enabling the derogation period concerning the agricultural land and forestland apply to the acquisition of property. The compensation law, on the other hand, applies to the restitution of property that was confiscated or lost in unfair circumstances, eventually to the compensation for those. Consequently, given the strict interpretation of advantages provided for the Member States in the derogation periods in the case-law of the Court of Justice of the European Union, excluding property confiscated in unfair conditions from the compensation after the accession of a Member State does not appear to be justified, even if the compensation provisions are considered to be existing legislation. An ‘advantage’ provided in the Accession Treaty of a Member State that allows that, for a certain period of time after that Member State’s accession, it should maintain legislation that prohibits nationals of other Member States to acquire property ownership, could in no way be interpreted as authorization for that Member State to exclude nationals of other Member States from the restitution process of property confiscated or lost before the accession.

19.4

The European Commission’s Assessment of the Slovak Compensation Act, in the Light of the European Regulations on the Free Movement of Capital

The reflections above constituted the assumption of the main subject of investigation of present study, thus, the analysis of the question of the compatibility of said Compensation Act with EU law. Thus, below we wish to focus solely on the question whether the central provisions of the Slovak Compensation Act,55 adopted after the country’s accession, that allow only persons of Slovak nationality who are also residents of Slovakia to submit claims for compensation, is compatible with EU law. That law of the Slovak Republic, currently in force, made it possible to submit claims for restitution of land confiscated or lost in unfair conditions on different grounds in the period between 25 February 1948 and 1 January 1990. As an exception, the regulation provided for the submission of compensation claims in respect of land confiscated on the basis of the Decree of the Slovakian National Council 104/1945 T.t. on the confiscation and quick redistribution of agricultural property of Hungarians, Germans, traitors and the enemies of the Slovak nation, and on the basis of the Decree of the President of the Republic 108/1945 on the nationalisation of enemy property.56

55 Act No. 503/2003 on the Restitution of Land Ownership. 56 Presidential Decree No. 108/1945 concerning the confiscation of enemy property and the National Renewal Fund.

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As mentioned above, at the same time, the regulation ruled out the possibility of claims being submitted by non-Slovak nationals and persons who are not residents of Slovakia. Knowing the European Commission’s – in general restrained – position concerning national minorities or similar sensitive political issues, and its opinion previously expressed about the decrees, according to which those can be considered as historical documents, consequently not violating EU law, the affirmation of the connection between the compensation process within the temporal scope of the EU law and the free movement of capital arises as a serious challenge. This challenge, however, did not deter those MEPs who turned to the Commission of the European Union with a written question57 on the compatibility of the above-mentioned provisions of the Compensation Act and EU law. In response to the petition ‘founding’ this issue,58 the European Commission has previously recognized59 that the post-accession restitution of property confiscated before the accession of the Member state constitutes capital movement – including the receipt of inheritances –, so the EU Directive60 on capital movements should be applied in such cases, and the provisions of the European Union’s Charter of Fundamental Rights61 on property rights and the general prohibition of discrimination62 must also be taken into account. In the reply, the Commission also drew attention to the fact63 that the case-law of the Court of Justice of the European Union established exceptions concerning the free movement of capital, but these can only be applied on the basis of objectives set out in the founding treaties or overriding public interest. In order to comply with EU law, restrictions applied by Member States must take into account the principle of proportionality as well. After the Commission adopted a principled resolution, another question64 to the Commission also addressed specificities and was focusing on the question whether it was compatible with EU law to exclude non-Slovak nationals and persons who are not residents of Slovakia from the compensation between 1 May 2004 and 31 December 2004,65 which is a post-accession period. In practical terms, the question formulated in the same petition has a great significance: if it is established that the exclusion of nationals of other Member States from the restitution

57 Alajos Mészáros and Zoltán Bagó MEPs. 58 Written question: E-118448/2013. 59 In response to the question of Philippe Boulland EP representative, the Commission acknowledged that the restitution of confiscated property constitutes capital movement, and the same is true for the receipt of inheritance, under the Council Directive on capital movements adopted in 1988, Answer to written question E-008448/2013. 60 See Directive 88/361/EK cited above. 61 The Charter of Fundamental Rights of the European Union, Art. 17. 62 Art. 12 of the Charter of Fundamental Rights of the European Union on non-discrimination specifies belonging to a national minority, although only within the scope of the founding Treaties. 63 Written question: E-008448/2013. 64 E-011 857/13, written question, Alajos Mészáros and Zoltán Bagó. 65 Only Slovak nationals and residents of Slovakia could submit compensation claims.

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Ágoston Korom and Laura Gyeney process is in breach of EU law, does it follow from the obligation66 of Member States to correct situations violating EU law that the possibility of submitting claims for compensation should be ensured for only those European citizens who were effectively excluded from the compensation on the basis of the nationality or the place of residence– that is, who can actually prove it –, or for every potentially discriminated person? The answer to this question is of particular importance, given that the national legislation specified a limitation period ending on 31 December 2004. Viviane Reding, Vice-President of the Commission of the European Union, explained in her response67 that under Article 345 of the TFEU, EU law – having regard to the competency of the Member States to develop their property ownership system – does not require Member States to provide compensation for property confiscated prior to accession. Furthermore, according to Reding’s view, Member States also have the competency to decide to what extent and under what conditions they resituate confiscated property. However, the Commission has stressed the important point that ‘when determining the conditions for the restitution of property to former owners, Member States must comply with the rules contained by the EU Treaties and secondary legislation – in particular the free movement of capital – if the restitution measures fall within the temporal scope of the Treaties. According to current EU law, we consider the Commission’s response to be entirely correct, there is no bias in this regard. It is necessary to note, however, that the Commission has not given an exhaustive answer to the question, when it failed to comment expressis verbis on the issue whether, during the period in question,68 the criteria of place of residence and Slovak nationality set out in the Compensation Act are in breach with the fundamental freedom of the movement of capital.69 The European Commission also failed to answer the question mentioned above whether only the persons rejected on the basis of these criteria should be provided legal remedy, or whether all persons potentially affected should be able to re-submit their claims for compensation. The Commission may justify its ‘incomplete’ response by the fact that an investigation concerning the legislation of a Member State may take several months, which exceeds the time within which the Commission must provide an answer to the written question of the Members of the European Parliament. The Commission – not knowing the opinion of the Member State – will

66 Judgment of the Court of Justice of the European Union of 16 December 1960 in the Humblet v. Belgium case, No. C-6/60, ECR 1960 01125. 67 E-011857/1013, answer to written question, Viviane Reding, 20 January 2014. 68 Between 1 May 2004 and 31 December 2004. 69 In our view, the provisions of the Compensation Act in question clearly infringe the free movement of capital. In principle, such limitations – as the Commission also mentioned – may be limited in order to promote the public interest. We strongly doubt, however, that in this case it would be possible to ‘find’ an appropriate compelling public interest, also acceptable for the European Court of Justice. Economic interests should not be acceptable public interest, and we do not see any social public interest to justify this situation either.

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probably refrain from formulating a specific legal position concerning the issue set out above. However, in the future, the Commission cannot avoid giving a specific answer to the clarifying question that will certainly be repeated by the MEPs.

19.5

Non Cross-Border Situations

The above arguments seem to clearly confirm that the provisions of the Compensation Act violate the free movement of capital, as well as the requirement of non-discrimination on the basis of nationality at the heart of it, since the period from 1 May 2004 to 31 December 2004 falls under the temporal scope of EU law, and the provisions in question are disadvantaging nationals of other Member States, so the cross-border nature is undoubtedly confirmed. Removed from the discriminatory provisions of the Compensation Act presented above and the analysis of those provisions on a European level, you might want to consider whether the principles applying to the economic freedom of the free movement of capital are implemented in the compensation process even when the cross-border nature cannot be detected – based on EU criteria –, but the stakeholders are discriminated in property ownership issues. To resolve this issue, the analysis of the jurisprudence concerning the free movement of capital is necessary. As has been pointed out above, the general perception70 – confirmed by the case-law of the Court of Justice of the European Union – is that the Article of the Founding Treaties71 that guarantees property ownership autonomy for the Member States should not be interpreted in a way that would allow the limitation of economic freedoms.72 In our view, this provision in this context should be interpreted in a way to ensure principally the private autonomy of the Member States, that is, the Member States are themselves entitled to create their own system of private law and determine other rules related to property records. Unfortunately, the case-law of the Court of Justice of the European Union does not really provide an example strictly in the field of the private autonomy of Member Sates for EU ‘investigation’ that would aim at determining the compliance of private law or other institutions related to real estate records with the free movement of capital. At the same time, we do not find any example of the Court of Justice of the European Union that

70 Ágoston Korom, ‘A földpiacra vonatkozó kettős jogalap tételének bírálata’, 3 Magyar jog (2011), pp. 152159. 71 See TFEU Art. 345. 72 The property ownership autonomy (ex 295, now Art. 345 TFEU,) cannot be interpreted as unconditional right of the Member States: the requirements of free movement and competition strictly set the limits for the interpretation of this article. Louis Dubouis and Louis-Claude Blumann, Droit de l’Union européenne matériel, Montchrestien, 6th edn, Paris, 2012, p. 611.

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would automatically exempt administrative or civil institutions and principles related to real estate records from investigations related to fundamental economic freedoms.73 We believe that, as the development of EU law stands at present, Member States may continue to invoke Article 345 of the TFEU ‘in case of general investigations’, which may be intended eventually to determine when a Member State’s civil and land registration principles are excessively and unnecessarily restrictive in relation to the fundamental economic freedoms. The fact that the safety of real estate sales was indicated as one of the most important aspects in the case-law of Court of Justice of the European Union relating to the land registration system of the Member States has major significance for the answer to this question.74 The case-law of the Court of Justice has developed the principle according to which the compatibility of a Member State’s regulation with the fundamental economic freedoms is questionable even in the case where the national authorities have discretionary powers – not defined duly by legislation – for issuing licences,75 eventually discouraging nationals of other Member States from investing in that particular Member State. It can also be generally stated that the case-law of the Court of Justice of the European Union is increasingly permissive76 in respect of cross-border nature. Thus, even in the absence of cross-border nature, the case-law of the Court replies to the question asked during the preliminary ruling, as it greatly facilitates the uniform interpretation of EU law, and at the same time, significantly reduces the future possibilities of future discrimination against nationals of other Member States. On the whole, it can be stated that – having regard to the more and more tolerant caselaw of the Court regarding cross-border nature, ant to the primary implementation of the safety of real estate sales emerging from the case-law of the Court –, if, after the EU accession of the Slovak Republic, an administrative and judicial practice that discriminates

73 Moreover, as a new element, the Court examines the institution of European citizenship with respect of real estate buying and selling, and ong-term leases. See the judgment of the Court of Justice of the European Union of 8 May 2013, in Case No. C-197/11, Libert et al. This process contradicts the existing case-law that until recently, if the Court has examined a national regulation from the aspect of the free movement of capital – the strongest of freedoms –, it has not been reviewed with regard to other fundamental freedoms. European Citizenship in such situations only came into play as an additional element. The Court looked at a situation from the point of view of citizenship if it was impossible to apply the provisions of fundamental economic freedoms in that area. As for out subject, relevance of the question is whether the extension of the EU freedoms goes together with the weakening of the criteria restricting the free movement of capital? 74 It is clear that neither the primary, nor the secondary EU legislation do not require Member States to enforce the safety of real estate sales. However, the criterium of security, as one of the most important applicable aspects in this field, is taken into account by the European Court of Justice in the case of the limitation of fundamental economic freedoms. 75 Judgment of the Court of Justice of the European Union of 4 June 2004 in Case No. C 483/99, Commission v. France, ECR 2002 I-04781. 76 Judgment of the European Court of Justice of 15 May 2003 in the Salzmann case, C-300/01, ECR 2003 I04899.

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against the stakeholders – even against Slovak nationals and residents of Slovakia – of the decrees in property ownership issues, it is conceivable that the latter successfully invoke the free movement of capital.

19.6

Summary

Since the current state of development of EU law does not provide effective protection for national minority rights, and the protection of fundamental rights does not necessarily require – legally – the repeal of provisions declaring collective guilt, adopted prior to the accession of given Member State, therefore our investigation of the decrees’ compatibility with EU law were based on fundamental economic freedoms. EU law does not require – or only in very exceptional cases – the restitution of property expropriated or confiscated in unfair circumstances before the accession of a Member State. Consequently, we find the concerns that the decrees could not be repealed because that would lead to landslide changes in property ownership unfounded.77 However, it must be emphasized that, when a Member State opts for compensation78 after accession, it should be done taking into account the fundamental economic freedoms, in particular, the criteria relating to the free movement of capital, which expressly prohibits the discrimination on the basis of nationality. Therefore, the Compensation Act 503/2003 – since the submission of compensation claims was only allowed for persons of Slovak nationality for the period between 1 May 2004 and 31 December 31 – is most likely contrary to the fundamental economic freedom of the free movement of capital. In our analysis, we came to the conclusion that a judicial practice – even in the absence of any cross-border element – that allows for different application of private law and land registration rules relating to property ownership in the national legislation regarding persons, who had obtained property through the decrees, also questions its consistency with fundamental economic freedoms. However, these issues need further investigation on conceptual level and case-specific level as well. Maybe it was the above mentioned questions regarding fundamental economic freedoms that lead to the recently adopted position of the Legal Affairs Committee of the European Parliament (JURI)79 that the further investigation of the decrees is justified because they have a legal effect even today, in contrast with former European opinions, among others the opinion of the European Commission concerning the Juhász petition, according to

77 EU law would not in any case require a change with such consequences. 78 The conditions and stakeholders are also determined by the Member States, as is clear from the Commission’s response. 79 11 February 2014.

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which the decrees should be seen as a historical document with no detrimental effect to EU law. We believe that, in order to close the questions regarding the decrees, further exhaustive examination of the related regulations, administrative and judicial practice is necessary. Closing the petition without a thorough investigation would cause serious damage to the European Parliament’s authority, however, it would not prevent that even private individuals – through direct law enforcement – or MEPs, invoking the monopoly of the Court of Justice of the European Union in the interpretation of EU law, continue to turn to the EU forums regarding the decrees’ effects violating EU law.

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European Values, Fundamental Rights and the Private International Law of the European Union

Sarolta Szabó*

20.1

Introduction

In the last two decades the system of fundamental rights and the regulation of private international law experienced a significant change in the context of the European Union (EU). On the one hand, the meaningful protection of fundamental rights was threatened due to the fact that its primary law basis was meagre. Recognising the consequences of this emerging risk, the EU sought to prevent the vacuum of fundamental rights1 and finally became the ‘pioneer of human rights’.2 On the other hand, by adopting a series of private international law and procedural law rules, private international law has become a significant pillar of EU law. We may even say that currently, the Europeanisation of private international law is a more successful process than the unification of substantive law. Developing and refining the culture of fundamental rights in parallel with burgeoning European values has proceeded on various levels. These levels may be identified with the two mammoth organisations of the ‘old continent’, namely the EU and the Council of Europe. An interesting and important similarity between the two institutions is that both of them struggle with financial problems.3 The EU is engaged in managing a global and European financial crisis, while the Council of Europe intends to improve financial conditions by rationalizing the operation of its organisation. We may say that the European Court of Human Rights (ECtHR) is ‘the victim of its own popularity’.4 The theory of Jean Monet, namely that each crisis opens up new opportunities could be a motivating factor

* 1

2 3 4

Associate professor, Péter Pázmány Catholic University, Faculty of Law. E-mail: [email protected]. E. Sándor-Szalay and Á. Mohay, ‘Multilevel Protection of Fundamental Rights in the European Union and in Hungary’, in Marcel Szabó (Ed.), Hungarian Yearbook of International Law and European Law, Eleven International Publishing, 2013, p. 424. N. Chronowski, ‘I. Cím 6. cikk’, in András Osztovits (Ed.), Az Európai Unióról és az Európai Unió Működéséről szóló Szerződések magyarázata 1, Complex, 2013. p. 53. Sándor-Szalay and Mohay, supra, p. 404. Supra.

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in the formation of a feasible ‘channel of communication’ between Strasbourg and Luxembourg in the framework of which Strasbourg and Luxembourg case-law could converge.5 Based on the above, the relationship between European values, fundamental rights and private international law must be analysed from three different perspectives. Firstly, from the perspective of the EU with respect to the newly adopted rules in the fields falling within the competence of the EU; secondly from the perspective of the relevant case-law of the Court of Justice of the European Union (CJEU); and thirdly from the perspective of Strasbourg case-law, since the ECtHR plays a pivotal role in the protection of fundamental rights. Due to the phenomenon of parallel processes, the mutual interaction between fundamental rights and private international law provides several interesting and topical issues relevant for both jurisprudence and legal practice. This vast area of law could be explored more deeply in thought-provoking books, examining the interface between fundamental rights and private international law.6 However, the next few pages only suffice to outline the main features of this area in order to capture the interested reader’s attention.

20.2

Private International Law of the European Union and the Charter of Fundamental Rights

The EU policies on judicial cooperation in civil and commercial matters, in particular, the unification of private international law, and on the fundamental rights are of the same age and share the same sources, because the Tampere Summit in 1999 which was deemed a ‘significant milestone if not the starting point’.7 It is widely known that by concluding the Amsterdam Treaty, the main aim of the EU was the gradual establishment of a community where freedom, security and law are ensured. At the Tampere Summit held on October 1999, the European Council confirmed that this objective it still first on the EU’s political agenda and in order to achieve the envisaged target, the European Council developed an ambitious action programme. This action programme determined the political guidelines in detail as well as the roadmap of the concrete steps to be taken.8 The European Council highlighted the principle of mutual recognition of judicial decisions regarding judicial cooperation in civil matters in the 5 6

7

8

Supra. See Z. Csehi, Alapjogok és nemzetközi magánjog – a német fejlődés, Gondolat kiadó, Budapest, 2013.; L. R. Kiestra, The Impact of the European Convention on Human Rights on Private International Law, Springer, 2014. S. Saastamoine, ‘The European Private International Law and the Charter of Fundamental Rights’, in Permanent Bureau of the HccH (Ed.), A Commitment to Private International Law. Essays in Honour of Hans van Loon, Intersentia, 2013, p. 503. www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/00200-r1.en9.htm (visited: 6 January 2014).

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course of realizing European integration. At the same time and in close connection thereto, the heads of states and governments agreed on the members of a council responsible for developing a charter of fundamental rights as well as on the elaboration methods of the document. The next milestone was the millennium, when in respect of judicial cooperation – regulated by private international law and international civil procedure law instruments – the Council and the European Commission (the ‘Commission’) agreed on a draft programme regarding the implementation of the principle of mutual recognition.9 In parallel to these developments, at the Nice Summit the European Parliament (the Parliament), the Council and the Commission adopted the Charter of Fundamental Rights (the Charter) in the form of a joint declaration as a recommendation and reference point. The Charter was developed by a Convention comprised of the representatives of European institutions and national parliaments, lawyers, academics and representatives of civil society. The catalogue of fundamental rights to be protected in the EU was a mere political declaration at that time, and it was later to form the second part of the proposed European Constitution. As is known, when the Lisbon Treaty entered into force, Article 6 paragraph 1 of the Treaty on European Union10 (TEU) recognised the Charter as having the same legal value as the Treaties.11 The reform treaty performed a significant revolution by ending the former dilemma and providing a solution for the EU’s ‘fundamental rights deficit’.12 It is unquestionable that in the course of deepening the integration, EU law continuously and significantly influenced the everyday life of individuals; however, within the framework of primary law the EU had failed to regulate the individuals’ fundamental rights. Due to the application of the principle of supremacy in case of conflict between national and EU law, the judicial forums had to set aside even constitutional provisions, notwithstanding the fact that in some cases, national law would have provided a higher level of protection. Moreover, the development of the principle of direct effect by the European Court of Justice made individuals vulnerable against the EU as its legal actions were not bound by rules containing

9 OJ 2001 C 12, 2001 January 15. 10 Art. 6 of the TEU (1) ‘The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. – The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. – The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.’ 11 The Lisbon Treaty refers to the Charter as the clarified legally binding guarantees of EU and as a collection of these rights, and pursuant to the EU, every European citizen shall possess these rights. The six chapters of the Charter comprise the following: dignity of individuals, freedoms, equality, solidarity, citizens’ rights and justice. 12 Chronowski, supra, p. 52.

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Sarolta Szabó provisions protecting fundamental rights.13 We must add, that prior to the acceptance of the Charter, the most significant principles regarding the protection of fundamental rights were developed by CJEU case-law. (In lack primary law sources, such principles were mainly based on the common traditions of the Member States and on relevant international treaties.14) However, this legal development carried out by the CJEU was highly criticised. One of the most frequent criticisms was the ‘superficial approach of the CJEU’,15 namely the lack of dogmatic foundation regarding the fundamental rights put forward in the judgement. Furthermore, the CJEU failed to assess secondary law passed by the Council and the Parliament from a fundamental rights perspective (examining instead the fundamental rights credentials of competition law and customs law provisions, as well as rules related to officials adopted by the Commission).16 The Lisbon Treaty also introduced novelties in respect of judicial cooperation in civil matters. Article 81 of the Treaty on the Functioning of the European Union (TFEU)17 entitles the Parliament and the Council, acting in accordance with the ordinary legislative procedure, to adopt measures, particularly when necessary for the proper functioning of the internal market. We may also say that the EU ‘liberated itself’ from the internal market 13 Supra. 14 L. Blutman, Az Európai Unió joga a gyakorlatban, Hvg-orac, Budapest, 2013, p. 518. The process is described by the series of the following cases: Stauder case (C-29/69), Internationale Handelsgesellschaft case (C-11/70), Nold case (C-4/73), Rutili case (C-36/75), Prais case (C-130/75), Hauer case (C-44/79), Demirel case (C12/86), Wachauf case (C-5/88), Orkem case (C-374/87). See more: Blutman, supra, pp. 517-518; Chronowski, supra, pp. 49-51.; August Reinisch, Essentials of EU Law, Cambridge Univerity Press, 2013, pp. 101-108.; G. Di Federico, ‘Fundamental Rights in the EU:Legal Pluralism and Multi-Level Protection After the Lisbon Treaty’ in G. Di Frederico (Ed.), The EU Chapter of Fundamental Rights – From Declaration to Binding Instrument, Springer, 2011. pp. 18-22. 15 S. Werner, ‘Neues zur Grundrechtskontrolle in der Europäischen Union’ EuZW (2011), p. 463, cites: E. Szalayné Sándor, ‘Alapjogok (európai) válaszúton – Lisszabon után’, Jogtudományi Közlöny (2013), p. 23. 16 Supra. 17 (1) ‘The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States. (2) For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring: a. the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases; b. the cross-border service of judicial and extrajudicial documents; c. the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction; d. cooperation in the taking of evidence; e. effective access to justice; f. the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States; g. the development of alternative methods of dispute settlement; h. support for the training of the judiciary and judicial staff.’ C 83/78 Official Journal of the European Union, 2010 March 30.

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criterion. Of course, this did not provide the EU with a carte blanche, since its competences are still limited in certain matters, for instance in the field of family law, and as a consequence of the application of general principles, for instance the principles of subsidiarity and proportionality.18 Currently, 15 regulations, 4 directives and 3 decisions are in force in the area of private international law and civil procedure law.19 The first EU secondary legal sources, such as the Regulation on insolvency proceedings (the ‘Insolvency Regulation’),20 the Regulation on jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility for children of both spouses (the ‘Brussels II’),21 and the Regulation on the service in the Member States of judicial and extra-judicial documents in civil or commercial matters (the ‘Service Regulation’)22 were adopted in 2000. Without providing an exhaustive list of its work, ten years after the second millennium, the Rome I (applicable law contracts)23 and Rome II Regulations (applicable law torts)24 were followed by the Rome III Regulation (applicable law divorce),25 and in 2011 the Commission prepared a proposal for a Regulation on the jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes.26 One year later, the Regulation relating to international succession matters (the Succession

18 See G-R. De Groot and J-J. Kuipers, ‘The New Provisions on Private International Law in the Treaty of Lisbon’, 1 Maastricht Journal of International and Comparative Law (2008), p. 111. 19 Summary on the sources of law, X. Kramer et al., A European Framework for Private International Law: Current Gaps and Future Perspectives. European Parliament, directorate-general, www.europarl.europa.eu/ document/activities/cont/201212/20121219ATT58300/20121219ATT58300EN.pdf (2012), pp. 19-21 (visited 6 January 2014). X. Kramer, European Private International Law: The way forward Presented in the European Parliament, Workshop for the JURI Committee, on September 2014. www.europarl.europa.eu/document/ activities/cont/201409/20140924ATT89662/20140924ATT89662EN.pdf (visited 1 October 2014). 20 1346/2000/EC Regulation, OJ 2000 L 160, 30 June 2000, pp. 1-18. 21 1347/2000/EC Regulation, OJ 2000 L 160, 30 June 2000, pp. 19-36. It was replaced with the Brussels II bis Regulation, No 2201/2003 (applicable as of 1 March 2005). 22 1348/2000/EC Regulation, OJ 2000 L 160, 30 June 2000, pp. 37-52. It was replaced with the new Service Regulation, No 1393/2007 (applicable as of 13 November 2008). 23 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), OJ 2008 L 177, 4 July 2008, pp. 6-16. 24 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), OJ 2007 L 199, 31 July 2007, pp. 40-49. 25 The Rome III Regulation is the only one that was not adopted on the basis of Article 81 TFEU. It results from enhanced cooperation pursuant to Articles 326-334 TFEU. It currently applies in 15 Member States (Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Portugal, Romania, Slovenia, and Spain), and as of 15 July 2015, it will be applicable in Greece as well. Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, OJ 2010 L 343, 29 December 2010, pp. 10-16. 26 COM(2011)126. és COM(2011)127.

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Sarolta Szabó Regulation)27 and the recast of the Brussels I Regulation (the ‘Brussels I bis’)28 were adopted. Finally, the Regulation on mutual recognition of protection measures in civil matters29 and the Regulation establishing a European Account Preservation Order30 closed the list of the most recent acts of EU law.

20.2.1

The Creation of the EU Private International Law and Fundamental Rights

The legislative ‘dumping’ of the EU carried out in the past decade is especially prominent in the field of private international law and international civil procedure law. These pieces of EU legislation substantially affect the rights of individuals, therefore in order to avoid possible future conflicts with fundamental rights, it is important to fine-tune these acts from the perspective of fundamental rights. What is the Union’s approach to this endeavour?

20.2.2

Role of the Commission and Its Instruments to Ensure the Respect of the Charter

The EU’s catalogue of fundamental rights, forming part of primary law principally binds the EU institutions and bodies. According to Article 51 paragraph 1 of the Charter, it is primarily the responsibility of Union institutions to ensure the respect for fundamental rights.31 As such, the Charter is applicable both to the legislative efforts and the external actions of the EU.32 The legislative, executive or judicial bodies of Member States may only be considered addressees of the Charter insofar as they execute EU law, namely, when applying regulations, decisions and directives. With respect to the Charter, the Commission 27 Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, OJ 2012 L 201, 27 July 2012, pp. 107-134. 28 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. OJ 2012 L 351, 20 December 2012, pp. 1-32. 29 Regulation (EU) No 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters. OJ 2013 L 181, 29 June 2013, pp. 4-12. 30 Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 on establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters. OJ 2014 L 189, 27 June 2014, pp. 59-92. 31 Art. 51 of the Charter, Scope: ‘The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.’ 32 According to Art. 21 of TEU.

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has a particularly dominant position. On the one hand, the Commission proceeds according to the provisions of the Charter when developing a proposal for a legislative instrument. On the other hand, as the guardian of the Treaties, the Commission is responsible for controlling the accurate application of the Union aquis by the Member States. Consequently, the Commission supervises whether Member States respect the Charter, thus, the Commission may initiate infringement proceedings if it deems necessary.33 As a formal statement of the compatibility of legislation, the Commission decided already in 2001 that the recitals of legislative proposals must include a reference to fundamental rights.34 Subsequently, the Commission established the methodology for systematic and rigorous monitoring of the compliance with the Charter in its proposals.35 This was reinforced by the Commission Communication on Strategy for the effective implementation of the Charter in 2010 which further strengthened this process. In its Communication the institution committed itself to fortifying the culture of fundamental rights within the Commission, the assessment of proposals’ effect on fundamental rights, the development of a practical guidance regarding fundamental rights36 and the evaluation of annual reports on the application of the Charter.37

20.2.3

Emergence of Fundamental Rights and References to the Charter in the EU’s Private International Law Legislation

It is clear from the foregoing, that there is an immanent relationship between the Union’s private international law legislation and fundamental rights. Naturally, the first legal instruments adopted in 2000 and 2001, for instance the Brussels I, Brussels II, the Insolvency and Service Regulations, did not mention fundamental rights or the Charter. Furthermore, the Rome I and Rome II Regulations did not contain references on fundamental rights either. However, during the elaboration of the Rome II 33 See for instance infringement procedures initiated against Hungary, which concerned the non-compliance of the Member State with key provisions of the Charter, detailed in Section 3.1 of the 2012 Report of the Commission on the Application of the EU Charter of Fundamental Rights, COM(2013)271. The Commission handles with priority those breaches of law which relate to matters of principle or which have serious impact on citizens. Naturally, in order to ensure the intervention of the Commission, a factor of the case needs to be connected to EU law. Otherwise, Member States guarantee the protection of fundamental rights through their respective national judicial system. 34 Saastamoinen, supra, p. 505. 35 COM(2005)172. 36 Operational Guidance on taking account of Fundamental Rights in Commission Impact Assessments, SEC(2011)567, which is available at: http://ec.europa.eu/justice/fundamental-rights/files/operational-guidance_en.pdf. 37 Communication from the Commission, Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union, COM(2010)573.

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Regulation the Commission proposed the establishment of a special ‘safeguard clause’ for violations of privacy, expressly mentioning Article 7 of the Charter on the respect for private life and Article 11 on freedom of expression and information. Nevertheless, the legislators were not able to agree on inclusion of the proposed rule in the Rome II, so the adopted Regulation does not have even a recital with a Charter reference.38 In this respect, a new chapter may be opened for in light of the Shevill and eDate cases, furthermore, the widespread phenomenon of libel tourism, the Parliament proposed the amendment of Rome II calling for the adoption of conflict of law rules on a non-contractual obligation arising out of a violation of privacy or rights relating to the personality (including defamation).39 The first legislative instruments addressing their effects on fundamental rights and also mentioning the Charter were passed in 2003 and 2004: the Brussels II bis Regulation40 and the Regulation on European Enforcement Order for uncontested claims (the ‘EEO Regulation’).41 In the course of developing the Maintenance Regulation, a legislative initiative was composed in 2005 pursuant to the results of a profound impact assessment which rested on the evaluation of potential conflict between its provisions and fundamental rights. A recital of the draft referred to the Charter on two points, namely Article 24 on the rights of children and Article 47 on the right to an effective remedy and fair trial. Surprisingly, however, the final version of the Regulation was adopted without references to the Charter.42 During the elaboration of the Regulation on the European Payment Order43 the Commission proposed a reference to the Charter yet again, however in 2006, at the end of the legislative procedure, the reference was missing from the final version. In contrast with the Payment

38 Saastamoinen, supra, p. 508. 39 European Parliament resolution of 10 May 2012 with recommendations to the Commission on the amendment of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II); (2009/2170(INI)), OJ 2013 C 261 E, 10 September 2013, pp. 17-21. 40 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No. 1347/2000, OJ 2013 L 338, 23 December 2003, pp. 1-29. Recital 33: ‘This Regulation recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Art. 24 of the Charter of Fundamental Rights of the European Union.’ 41 Regulation (EC) No 805/2004 of the Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims. Recital 11: ‘This Regulation seeks to promote the fundamental rights and takes into account the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure full respect for the right to a fair trial as recognised in Article 47 of the Charter.’ 42 Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. OJ 2009 L 7, 10 January 2009. See more, Saastamoinen, supra, p. 509. 43 Regulation (EC) No. 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure. OJ 2006 L 399, 30 December 2006, pp 1-32.

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Procedure Regulation, recital 9 of its ‘sister’,44 i.e. the Regulation on Small Claims Procedure,45 ‘seeks to promote fundamental rights and takes into account, in particular, the principles recognised by the Charter of Fundamental Rights of the European Union.’ It follows from the above that the fundamental rights compatibility of legislation preceding the Lisbon Treaty may be deemed random at best, yet the amendment of the Treaties now prescribe this as an obligation as reflected for instance in the Rome III, the Succession and Brussels I bis Regulations. According to another categorization,46 from among the fundamental rights set out in the Charter, Article 47 on the right to an effective remedy and to a fair trial exerted the greatest effect on EU private international law legislation; a right regulated in accordance with Article 6 paragraph 1 of the European Convention on Human Rights (ECHR).47 The effects of this provision resulted in the abolition of exequatur supplemented with certain procedural safeguards, such as in the case of the EEO and small claims procedures, parts of Brussels II bis, rules on matrimonial and registered partnership property rights, as well as Brussels I bis. Another frequently cited fundamental right is the freedom to conduct a business enshrined in Article 16 of the Charter.48 The aim of the 2012 revision of the Insolvency Regulation was, among others, to expand its scope and to further develop its rules relating to jurisdiction. According to the Commission, the right to conduct a business would be facilitated by the expansion of the scope of the Insolvency Regulation to holdings, insolvency proceedings concerning natural persons, EU-wide recognition of national hybrid and preinsolvency proceedings would also have beneficial effects. The right to property, pursuant to Article 17 of the Charter, assumes a substantial role in the Succession Regulation and in the draft Regulation on matrimonial property rights.49 Articles 21 to 24 of the Charter, especially the provisions on non-discrimination and the rights of the child are particularly significant in the context of the Succession Regulation 44 Saastamoinen, supra, p. 507. 45 Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure. OJ 2007 L 199, 31 July 2007, pp 1-22. 46 For a detailed analyses, see Saastamoinen, supra, p. 510-514. 47 ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Everyone charged with a criminal offence has the right to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.’ 48 Such a right recognises the freedom of economic or commercial activity and contractual freedom, in addition to free competition. 49 The Commission analysed the effects of the legislative instrument on fundamental rights. In respect of this, the Commission declared that pursuant to the national laws of the Member States, the proposition neither affects the right to respect for private and family life as it is set out in Art. 7 of the Charter, nor the right to marry and to find a family as set out in Art. 9 of the Charter. Nevertheless, the proposition strengthens the right to property as it is set out in Art. 17 of the Charter.

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and the legal instruments concerning family law. For instance, on the basis of the Succession Regulation, the chances of same sex-couples to dispose of their property for the benefit of their partners have been improved, regardless of couples’ habitual residence.50 Obviously, other Charter articles also feature in the legislative process, such as for instance Article 7 on the respect for private and family life, Article 8 on the protection of personal data, Article 10 on the freedom of thought, conscience and religion and Article 11 on the freedom of expression and information.

20.2.4

Case-Law of the CJEU: Fundamental Rights and Private International Law

The second important setting is the CJEU. Following its adoption, the Charter quickly became the most frequently cited reference for the CJEU. According to the statistics of the Commission, while in 2010 the CJEU referred to the Charter in 27 different judgements’ reasoning, this number increased to 42 in 2011.51 In the context of private international law, references to the fundamental rights document were mainly geared at the right to bear a name52 or in matters indirectly concerning citizenship,53 as well as issues connected to Brussels I54 and particularly Brussels II bis55 the unlawful abduction of a child.56 If we intend to categorize the CJEU’s latest cases concerning fundamental rights and the Charter, we can distinguish between three different categories. Some judgements

50 According to recital 58 of the Succession Regulation: ‘Considerations of public interest should allow courts and other competent authorities dealing with matters of succession in the Member States to disregard, in exceptional circumstances, certain provisions of a foreign law where, in a given case, applying such provisions would be manifestly incompatible with the public policy (ordre public) of the Member State concerned. However, the courts or other competent authorities should not be able to apply the public-policy exception in order to set aside the law of another State or to refuse to recognise or, as the case may be, accept or enforce a decision, an authentic instrument or a court settlement from another Member State when doing so would be contrary to the Charter of Fundamental Rights of the European Union, and in particular Art. 21 thereof, which prohibits all forms of discrimination.’ It is important to note that some preliminary questions whether a child who was born out of wedlock, or a child of a same sex-couple in another Member State could be considered as an heir, is not covered by the Succession Regulation. Saastamoinen, supra p. 513. 51 A. Saiz Arnaiz and A. Torres Pérez, Main Trends in the Recent Case Law of the EU Court of Justice and the European Court of Human Rights in the Field of Fundamental Rights. Brussels, European Parliament, www.europarl.europa.eu/studies, (2012), pp. 9-10 (visited 6 January 2014). 52 C-391/09, Runevič-Vardyn case [ECR 2011 I-03787], C-208/09. Sayn-Wittgenstein case [ECR 2010 I-13693]. 53 For example: C-34/09, Zambrano case [ECR 2011 I-01177], C-135/08. Rottmann case [ECR 2010 I-01449]. 54 C-619/10, Trade Agency Ltd and Seramico Investments Ltd case [has not yet been published in ECR], C292/10, G and Cornelius de Visser case [has not yet been published in ECR]. 55 C-92/12 PPU, Health Service Executive és S. C., A. C. case [has not yet been published in ECR]. 56 C-400/10 PPU, J. McB. V L.E. case [ECR 2010 I-08965], C-211/10 PPU, Povse v. Alpago case [ECR 2010 I06673], C-491/10 PPU, Zarraga v. Pelz cases [ECR 2010 I-14247].

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consider the Charter to be the primary source for determining and interpreting fundamental rights. In other cases, the CJEU merely refers to the Charter on a complementary basis, and finally, it happens that the CJEU does not consider the Charter because EU law does not extend to the given issue.57 In order to illustrate the difficulties of demarcation, let me mention a current dilemma of the CJEU regarding cross-border surrogacy involving also private international law issues. What makes the question even more interesting is that in two similar cases, two different Advocate-General’s opinions were issued on the very same day. In one of the cases, a preliminary question was submitted to the CJEU, asking whether the future or intended mother may apply for a maternity leave following the birth of the child borne by the surrogate mother.58 Pursuant to the opinion of Advocate-General Kokott, maternity leave enjoys the protection of primary EU law under Articles 7 and 24 of the Charter, thus, the disputed provision of the Directive extends to the intended mother.59 By contrast, in the other case Advocate-General Wahl opined that an adequately close tie to EU law needs to be substantiate for the Charter to apply. According to Wahl, surrogacy does not fall under the scope of EU law; therefore surrogacy may not fall under the scope of the Directive.60 It is no surprise that some national legislators61 as well as the Hague Conference on Private International Law62 have started working on regulating cross-border surrogacy agreements in order to eliminate coincidentally emerging legal problems.

57 Detailed assessments on the judgements adopted in 2010 and 2011, Saiz Arnaiz and Torres Pérez supra. 58 The regulation ensured by Art. 2 of Directive No. 92/85 is merely applied to pregnant women, women who have been recently given birth or breastfeeding women. 59 Proposition of Advocate-General Juliane Kokott, 26 September 2013, C-167/12, CD v. ST. case, Sections 6062, 73. Final conclusions: ‘in a situation such as that in the main proceedings an intended mother who has a baby through a surrogacy arrangement has a right to receive maternity leave under Articles 2 and 8 of Directive 92/85 after the birth of the child in any event where she takes the child into her care following birth, surrogacy is permitted in the Member State concerned and its national requirements are satisfied, even where the intended mother does not breastfeed the child following birth; the leave must amount to at least two weeks and any other maternity leave taken by the surrogate mother must be deducted.’ 60 Proposition of Advocate-General Wahl, 26 September 2013, C-363/12, Z v. Government Department case. Final conclusions: ‘I do not believe that the court should replace the legislator by adopting such a constructive interpretation on the basis of which more assumptions are concluded from directives 2006/54 and 2000/78, or even from directive 1992/85 than it was originally included into them. According to my standpoint, this would mean the detriment of the legislator’s competence. […] 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 shall not be applied within circumstances when reimbursing the costs of the value of absence, equivalent to maternity or adoption leave from the women whose genetic child has been born pursuant the an agreement on surrogacy, is denied.’ 61 For instance in the United Kingdom a new draft statue has been prepared on the rights of children and families, which regulates the situation of the adopting and future mother, who will be entitled to maternity leave and other benefits. However, it is expected that this statue will only enter into force in 2015. www.allpaylegal.com/news/surrogacy-and-rights-maternity-leave-02102013 (visited 6 January 2014). 62 www.hcch.net/index_en.php?act=text.display&tid=178 (visited 6 January 2014).

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20.3

European Convention on Human Rights and the EU Private International Law Rules

Analysing the third context outlined in the introduction, namely, the Strasbourg court is indispensable, since the TEU not only confirms that the protection of fundamental rights is based on the ECHR and on the common constitutional traditions of Member States, but paragraphs 2 and 3 of Article 6 TEU also authorise the EU to join the ECHR.63 Although there is a multi-level system of international human rights adjudication in Europe with slight differences in standards, we may nevertheless describe the relationship between the ECtHR and the CJEU as characterized by an ‘atmosphere of close cooperation’.64 One of the features of the ‘channel of communication’ described in the introduction is that the two forums mutually consider and make references to the judgements of the other. On the one hand, the CJEU takes into consideration the ECtHR’s case-law, declaring that both the case-law and the ECHR form part of the EU’s fundamental principles, however these are not mandatory prior to the accession to the ECHR.65 On the other hand, the approximation of the ECHR to the case-law of the CJEU is also touchable and the ECtHR refers to the Charter several times as well. Per exemplum, the Strasbourg forum was the first European court to explicitly cite the provisions of the Charter referring to Article 9 in the famous and notorious Goodwin case,66 where the ECtHR provided a more extensive protection to transsexual marriages than ensured under Article 12 ECHR. The other, more dominant component of the ‘communication channel’ is that the ECtHR established a presumption according to which the protection of fundamental rights under EU law is deemed equivalent to the protection detailed in the ECHR. The well-

63 Regardless of the publicly availably draft on the accession agreement prepared in 2011, the EU’s accession to the ECHR was hindered due to the disagreement of some Member States. Finally, following the adoption of a Council agreement in 2012, the negotiations between the Council of Europe and the Commission could proceed. More information in relation to the negotiations and its assessment: ‘added value’ or ‘procedural law complications’, Sándor-Szalay and Mohay, supra, p. 424; Chronowski, supra, pp. 70-74; Blutman, 2013, pp. 532-535; L. F. M. Besselink, ‘Should the European Union ratify the European Convention on Human Rights? Some remarks on the relations between the European Court of Human Rights and the European Court of Justice’ in Føllesdal, Peters, Ulfstein (Eds.), Constituting Europe – The European Court of Human Rights in a National, European and Global Context, Cambridge University Press, 2013. pp. 301-333. 64 Chronowski, supra, p. 66. 65 E.g. C-121/89, LVM case, C-441/05, Roquette Fréres, C-20/00 and C-64/00, Booker Aquacultur case. More information: Chronowski, supra, pp. 62-63; Blutman, 2013, p. 519. 66 After gender reassignment surgery was carried out on the applicant, he intended to marry his partner whose gender was different than the applicant’s new gender. The applicant was denied the conclusion of marriage as authorities declined to register his new gender into the birth certificate. The ECtHR amended its earlier approach and ordered the full acceptance of the new gender of transsexuals, and the court also declared the breach of the rights set out Arts. 8 and 12 of the ECHR relating to the right to respect private life and the right to conclude marriages. Christine Goodwin v. United Kingdom case (2002), No. 28957/95.

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known Bosphorus doctrine not only confirms the conclusion of the Matthews case67 but goes further when presuming that if a Member State acts according to EU law, the Member State already complies with the standard of fundamental rights ensured by the ECHR. Consequently, the legal acts of the state which fulfil the obligations deriving from EU law are lawful as long as the EU provides the protection of fundamental rights by an adequate mechanism. However, such protection could be challenged in particular cases provided that the safeguard system of ECHR is ‘manifestly deficient’.68 In this latter situation, the ECHR, as the ‘constitutional instrument of the European legal order’, shall be applied.69 How difficult is it to rebute this presumption? ‘It would be reasonable if the doctrine would not result in either a lower or a higher level of protection than already exists in other states.’70 Nevertheless, currently it seems that the Bosphorus test clearly affords the EU and its Member States a significantly privileged position. As a matter of fact, the Strasbourg court brought several judgements which have substantial impacts on private international law.71 Such cases may be classified into three different categories: prohibition of discrimination,72 the acceptance of a status acquired abroad73 and unlawful child abduction.74 The interplay of EU law, fundamental rights, the Bosphorus test and private international law appears before the ECtHR with respect to unlawful child abduction. The Brussels II bis Regulation implements the above described Tampere goals, the application of the principle of mutual recognition and the abolition of the exequatur procedure with respect to decisions granting visitation rights or ordering the return of the child in case of unlawful child abduction.75 The CJEU has consistently abided by the 67 Matthews v. United Kingdom case (1999), No. 24833/94. The ECtHR declared that as the European Community is not a contracting party to the ECHR, the legal acts of the European Community could not be disputed per se before the ECtHR, but the responsibility of Member States still prevails, even in case of the transfer of competences. 68 Bosphorus Airways v. Ireland case (2005), No. 45036/98, § 152, 156. In details, for example E. Szalayné Sándor, ‘Az alapjogok három jogrendszer metszéspontjában’, Állam- és Jogtudomány (2009), pp. 383-391.; Besselink, supra, pp. 308-318. 69 Referring to another case, Loizidou v. Turkey case (preliminary objections), (1995), No. 15315/89, § 75. 70 Szalayné (2013), p. 24. 71 More information about some cases, P. Kinsch, ‘Private International Law Topics before the European Court of Human Rights’, in A. Bonomi and G. P. Romano (Eds.), Yearbook of Private International Law, 2011, pp. 37-49.; Kiestra, supra. 72 E.g. Ammdjadi v. Germany (2010), No. 51626/08; Losonci Rose and Rose v. Switzerland (2010), No. 664/06. 73 For example: Hussin v. Belgium (2004), No.70807/01; Wagner v. Luxemburg (2007), No. 76240/01; McDonald v. France (2008), No.18648/04; Mary Green és Ajad Farhat v. Malta (2010), No. 38797/07; NegrepontisGiannisis v. Greece (2011), No. 56759/08. 74 E.g. Neulinger and Shuruk v. Switzerland (2010), No. 41615/07; Sneersone and Kampanella v. Italy (2011), No. 14737/09; Raban v. Romania (2010), No. 25437/08, Buday v. Belgium (2012), No. 4320/11, Povse v. Austria (2013), No. 3890/11. 75 Arts. 41 and 42, according to the provisions of the latter: ‘The return of a child entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without

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practice that if the decision was issued pursuant to the Brussels II bis, the recognition and enforcement of the decision shall not be refused even in case of a serious breach of fundamental rights.76 The Povse case well illustrates the gaping differences between reality and the Tampere idea. Pursuant to the facts of the case, D. Povse and M. Alpago were living together in Vittorio Veneto (Italy) community, until the end of January 2008, with their daughter, Sofia, who was born on 6 December 2006. According to the Italian Civil Code the parents have joint custody rights. At the end of January 2008, the parents separated and Povse left the common residence with Sofia. Upon request of the father, the Italian court forbade the mother to leave the country with her daughter, nevertheless, they moved to Austria in February 2008 where they have been living since. Subsequently, during the spring of 2008 the father sought the Austrian court to order the return of the child. In due course, the Italian court lifted the travel ban in respect of the child, granted preliminary joint custody of the child to both parents, and authorised her residence with her mother in Austria, having regard to her young age and close relationship with her mother. In the same decision the Italian court prescribed that the father must share in the maintenance of the child and the conditions of visitation granted to the father were also detailed. In November 2008, the Austrian court denied the request of the father on the grounds of the decision issued by the Italian court. In the spring of 2009 Alpago requested the Italian court, pursuant to Brussels II bis Regulation, to order the return of his child to Italy. On 10 July 2009 the Italian court ordered the rapid return of the child to Italy and for this purpose it issued a certification on the basis of Article 42 of the Brussels II bis Regulation. Finally, the Austrian Oberster Gerichsthof requested a preliminary ruling by the CJEU, submitting a number of questions concerning the application of the Brussels II bis. The CJEU declared on 1 July 2010 that according to Article 10 of Brussels II bis, the court which has competence in the case, at least at the time of unlawful child abduction, is the court pursuant to the habitual residence of the child preceding the unlawful abduction, that is to say, the Italian court. The question was raised, whether the competent court transferred the jurisdiction to the Austrian court by means of its decision on provisional custody to both parents. According to the CJEU, the decision of the Italian court, which was deemed temporary by both courts, could not be qualified as a final decision regarding child custody in any way. Thus, the provisional measure could not be the basis of a transfer the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with Para. 2.’ 76 In the firstly assessed Rinau case (C-195/08) the CJEU stated that if the authenticity of the certification has not been questioned and the certification has been issued pursuant to model form under Brussels II bis Regulation, the acceptance of the decision on the return of the child shall not be refused. Moreover, it is the duty of the requested court to declare the enforceability of the certified decision and to dispose of the rapid return of the child. Other cases: C-491/10 PPU, Zarraga case [ECR 2010 I-14247], C-211/10 PPU, Povse case [ECR 2010 I-06673].

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of jurisdiction to the courts of the Member State to which the child has been unlawfully removed. The CJEU also added that it is not necessary for the competent court to render a final decision on custody rights before ordering the return of the child.77 The CJEU highlighted that it derives from the provisions ordering the rapid return of the child that a certificate issued under Article 42 of the Regulation, which gives to the judgment thus certified a specific enforceability, is not subject to any appeal.. The requested Austrian court can do no more than declare such a judgment to be enforceable, since the only pleas in law which can be relied on in relation to the certificate are those to support an action for rectification or doubts as to its authenticity, according to the rules of law of the Member State of origin.78 Finally, the CJEU restated that the enforceability of the certified judgement ordering the return of the child in the Member State of enforcement could not be refused on the grounds that, as a result of a change in circumstances arising after her adoption, enforcing the judgment ordering return may be seriously detrimental to the best interests of the child. Such a change in circumstances must be resolved by the court with jurisdiction in the Member State where the original proceedings took place, i.e. only the Italian court has jurisdiction to assess the best interests of the child, and that is the court which must hear an application for any suspension of enforcement of its judgement. Following the adoption of the CJEU’s judgement, in 2011 the Italian court awarded the exclusive custody rights to the father and declared that the return of the child does not jeopardize the best interest of the child, even though the child was already 5 years old at that time and she had not seen her father for 3 years (in addition to the fact that the child did not speak Italian and the father did not speak German). Povse did not appeal this judgement because she could not cover the costs of an attorney. In September 2012, the Austrian Supreme Court finally refused the request of Povse given the fact that the CJEU clearly declared: Povse’s argument that the return of the child would constitute a serious risk to the best interests of the child breaching Article 8 of the ECHR is not relevant in the proceedings of the Austrian courts, but may be raised before the competent Italian court. Finally, in May 2013 pursuant to the decision of the Italian court, the Austrian court ordered the return of the child to Italy with effect of the beginning of July. Meanwhile, the ECtHR also adopted its decision regarding the case Sofia Povse and Doris Povse v. Austria on 18 June 2013.79 The abstract legal question behind the case could framed as follows: can a Member State be liable for the breach of international law if, in order to fulfil its obligation deriving from EU law, it recognizes and enforces a decision

77 C-211/10 PPU, Sections 49-50 of the Povse case. 78 C-211/10 PPU, Section 73 of the Povse case. 79 No 3890/11.

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adopted by the court of another Member State, which decision presumably infringes human rights? In its arguments, Austria referred to the Bosphorus doctrine, while Povse claimed that the presumption of equivalenent protection is rebutted in the case. According to the ECtHR, Austria merely satisfied its obligation flowing from Austria’s membership of the EU, as Austrian courts could not and had not exercise any discretion when they, pursuant to the Brussels II bis Regulation, enforced the Italian court’s decision ordering the return of the child. The Strasbourg court also mentioned that the adequate control mechanism of the EU was applied when the Austrian Supreme Court turned to the CJEU for a preliminary ruling. Regarding the rebuttable presumption, the ECtHR stated that the CJEU discussed the argument of the applicant relating to the alleged breach of fundamental rights and the judicial forum made unambiguous that such alleged breach of fundamental rights could be remedied by the Italian courts pursuant to the rules of Brussels II bis Regulation.80 Consequently, the applicant may exercise her rights before the Italian courts. The ECtHR drew attention to the fact that on the basis of Italian civil procedure law Povse still has the right to request the review of the decision ordering the return of the child with reference to the change in circumstances. The ECtHR also added that in case a measure of the Italian court was detrimental, then, the applicant is entitled to initiate proceedings against Italy before the ECtHR. The action against Austria was finally dismissed. In general, the judgement may be considered reasonable, but what about the actual facts? Prior to the handover, mother and daughter fled to Spain in July 2013, for due to an ongoing criminal procedure against the mother she could not accompany her 7 year old daughter to her father in Italy, who, by the end of the procedure had not seen his child for 5 years (!). As a result of the articles published in the Austrian press and on the Internet, as well as widespread protest, a review of the judgment was initiated before the Italian court in January 2014. Finally, the Italian forum ordered in favour of Povse by taking into account ‘the best interest of the child’.81 It is worth considering the earlier practice of the ECtHR on the basis of the Hague Convention on the Civil Aspects of International Child Abduction (the ‘Hague Convention’). First, in the Neulinger case82 the Grand Chamber declared that Article 8 of the ECHR overrides the Hague Convention and the ECtHR introduced the test of the ‘best interest of the child’ (in its judgement the judicial forum specifically referred to Article 24 of the

80 Sofia Povse and Doris Povse v. Austria case (2013), No 3890/11, § 75, 77-83, 86-87. See more: M. Hazelhorst, ‘The ECtHR’s decision in Povse: guidance for the future of the abolition of exequatur for civil judgments in the European Union’, NiPR (2014). 81 www.krone.at/Oesterreich/Fall_Sofia_Maedchen_darf_bei_Mutter_in_NOe_bleiben-Zittern_hat_EndeStory-400668 (last visited 15 April 2014). 82 Neulinger and Shuruk v. Switzerland (2010), No 41615/07.

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Charter). Then, in the Raban and Sneersone cases83 the ECtHR also applied this principle and declared that the return shall not be automatic, but the time factor shall be decisive in such matters. According to the ECtHR, in the course of adopting a judgement, national courts need to consider several aspects of the case, such as factual, emotional, psychological, material and medical factors in order to find the best solution to serve the interest of the unlawfully abducted child. Consequently, an automatic mechanism of return may be contrary to Article 8 of the ECHR and the ECtHR case-law.84 Certainly, this automatic mechanism would also be infringing in the Povse case, but only in respect of Italy. In summary, according to the Strasbourg court’s judgement, in case a Member State proceeds pursuant to EU law, the Member State of enforcement enjoys immunity against the fundamental rights mechanism of the ECHR. In other words, the Member State shall enforce a decision adopted by the court of another Member States, even if the decision breaches fundamental rights. However, this is contrary to the famous Pellegrini v. Italy case,85 where Italy accepted the decision of the Vatican ecclesiastical court regarding the dissolution of a marriage on the basis of a bilateral international agreement. The ECtHR condemned Italy for recognizing, on the basis of an international agreement, a decision which breaches human rights, namely the right to fair trial set out in Article 6 of the ECHR. According to the Pellegrini judgement, the ECtHR requires minimal procedural law guarantees from signatory states, while in case of EU Member States, the Strasbourg court follows a different approach based on the Bosphorus doctrine and does not even require the fulfilment of these minimum procedural rules, affording EU legislation and Members States a genuinely privileged position as compared to other state parties.

20.4

Summary

European values and the basic problems of fundamental rights protection are well-known. Close links between international law, EU law and national law result in complex jurisdictional relations, while certain generations of fundamental rights connected to a specific phase of the development of fundamental rights are featured with diverse intensity and

83 Raban v. Romania (2010), No 25437/08; Sneersone and Kampanella v. Italy (2011), No 14737/09. 84 F. Trombetta-Panigadi, ‘The European Court of Human Rights and the Best Interests of the Child in the Recent Case Law on International Child Abduction. International Courts’, in N. Boschiero et al. (Eds.), International Courts and the Development of International Law. Essays in Honour of Tullio Treves, Springer, 2013, pp. 606-607. 85 About the case and its effect: Csehi, pp. 230-232; A. Schulz, ‘The Abolition of Exequatur and State Liability for Human Rights Violations through the Enforcement of Judgements in European Family Law’, in Permanent Bureau of the HccH (Ed.), A Commitment to Private International Law. Essays in honour of Hans van Loon, Intersentia, 2013, pp. 516-518.

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86 Szalayné, 2013, p. 21. 87 See also B. Fekete, ‘Európai értékek és az értékek Európája. Megjegyzések Rezsőházy Rudolf Értékek szociológiája c. könyvéről’, Jogtudományi Közlöny (2010), pp. 206-212. 88 Chronowski, p. 53. 89 A new Hague Protocol, which would prohibit automatic return of the child and also exempt the parent who unlawfully abducted the child from arrest in the hearing taking place in the state concerned, could be a suitable solution. Thereby, the right of the parents and the child to fair trial, in addition to the right to respect for family life could be afforded appropriate protected. Trombetta-Panigadi, pp. 610-611. 90 G. Cuniberti and I. Rueda, ‘Abolition of the Exequatur, Addressing the Commissions Concerns’, University of Luxembourg Working Paper No. 03, 2 October 2010. 91 See more opinions: H. Muir Watt, Abolition of Exequatur and Human Rights, 5 October 2013, http://conflictoflaws.net/2013/muir-watt-on-povse/; R. Arenas García, Povse v. Austria: Taking Direct Effect Seriously? 7 October 2013, http://conflictoflaws.net/2013/povse-v-austria-taking-direct-effect-seriously/; F. Gascón Inchausti, Povse: a Presumption of ECHR Compliance when Applying the European Civil Procedure Rules? 8 October 2013, http://conflictoflaws.net/2013/gascon-on-povse-a-presumption-of-echr-compliance-whenapplying-the-european-civil-procedure-rules/; D. van Iterson, The ECJ and ECHR Judgments on Povse and Human Rights – a Legislative Perspective, 6 November 2013, http://conflictoflaws.net/2013/the-ecj-and-echrjudgments-on-povse-and-human-rights-a-legislative-perspective/.

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conundrum of idea and reality, emotion and activity, we will not lose sight of the European values we wish to protect.

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The Connecting Factor of Nationality in Relation to the Principles of EU Law

Katalin Raffai*

21.1

Introduction

The diverse traditions in personal and family law resulted in unique legal developments in the Member States of the European Union (EU). In the course of the determination of the applicable law in respect of civil law relations between EU citizens residing in different Member States, the differences in cultural traditions and the lack uniform law can become the source of many problems. The different paths of legal development resulted in the formation of unique legal institutions in the different legal systems involving the application of diverse connecting factors. The main question is: what lies at the root of the problem? The complexity of such situations derives from the fact that due to the different paths of legal development, unique legal institutions have been formed and different substantive law rules have been adopted in the various Member States. What is more, it is the differences between the private international law rules of the Member States that may be considered to be at the root of such complex situations, since the application of the different connecting factors may lead to different results in respect of the applicable law. Assessing the question from the perspective of EU law, the possibility for a closer cooperation in private international law matters was ensured only with the entry into force of the Treaty of Amsterdam, at the same time, rules mostly affected cooperation in civil law matters,1 while family law aspects were largely necglected. The increase in EU competences also had an impact on legislation as several secondary law instruments have been adopted and entered into force since then, for instance the Rome and Brussels Regulations,2 a legislative process that resulted in the unification of laws of the Member States.

* 1 2

Associate professor, Péter Pázmány Catholic University, Faculty of Law. E-mail: [email protected]. See: Section B of Art. 65. Council Regulation (EC) No. 44/2001of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters Official Journal L 012, 16/01/2001 P (Brussels I); Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No. 1347/2000. Official Journal L 338, 23/12/2003 P. 0001-0029 (Brussels IIbis); the Parliament’s and the Council’s 864/2007/EK decree about the law applicable to the non-conctractual cases (Rome II); the Parliament’s and the Council’s 593/2008/EK decree about the law applicable for conctractual obligations (Rome I).

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Following the entery into force of the Treaty of Lisbon, the unification of family law and the law of succession commenced gained new impetus.3 However, so far the significant focus placed on the unification of private international law did not result in the unification of rules on the right to bear a name. The reason for this lies partly in attitude of the Member States as the traditions regarding the right to bear a name and the respective rules are deeply rooted in the national law and jurisprudence, therefore, the reluctance of the Member States to amend the systems currently in effect significantly hinders unification in this field. Nevertheless, resolving the contradictions would be extremely important, for in the European context such discrepancies may impede the unhamperd functioning of the internal market, taking into account that fundamental freedoms, such as the free movement of persons and the freedom to provide services may be obstructed due to divergent domestic rules. The cases analyzed in the present study intend to shed light on this imperative. Dismantling the barriers to the establishment of the internal market is undoubtedly considered to be a fundamental goal of the EU, however, this may only be successfully achieved if the sensitivities of the Member States are respected in this special field of law.4 Due to the above, in the current circumstances the Court of Justice of the European Union as the other factor of legal approximation, is faced with problems that are generated by the collision of national laws since the beginning of the 90s and the CJEU had been seeking legal solutions with more or less success. Since a respective uniform, single European norm has not been adopted as of yet, each Member State applies its own domestic rules and the CJEU is under the duty to assess the compatibility of national laws with EU law. Nevertheless, this process of legal development is slow, involving several factors of uncertainty. The aim of the current study is to introduce the case-law of the CJEU with respect to right of natural persons to bear a name pursuant to personal rights, compare the similarities and reveal the accidental contradictions. Having a name is considered be the fundament of the identity of a human being and the name determines who the person really is, forming part of his or her personality. Sur-

3

4

Council Regulation (EC) No. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (Rome VI); Council Regulation (EU) No. 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (Rome III); Regulation (EU) No. 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession; M. Lehmann: ‘What’s in a Name? Grunkin-Paul and Beyond?’, in Yearbook of Private International Law, Vol. X, 2008, 2009, sellier.european law publishers GmbH and Swiss Institute of Comparative Law, Munich, pp. 135-164, p. 138.

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names express that a person is integrated into a particular family, since these are usually passed on from generation to generation pursuant to preset rules. Bearing a name has specific significance from the perspective of state operation as it shapes the public law status of the person concerned, namely, the name has relevance in determining who is entitled to vote and who is obliged to pay taxes and under what circumstances. Finally, the name is deemed to be a benchmark of social integration, for instance the spelling and pronounciation of the names of immigrants and refugees could be a source of numerous misunderstandings. In order to facilitate assimilation, several countries prescribe by law that the names of immigrants and refugees need to be ‘naturalised’ pursuant to the adequate ortographic rules of the new country.5 The cases examined concern different fields of law, demonstrating the complexity of the problem. Some cases pertain to the field of private international law, with the basic problem of which connecting factor should be applied in order to determine the normative law governing the right to bear a name in case of multiple citizens or citizens whose citizenship is different from their country of residence. In most cases two connecting factors come into conflict, namely the principle of citizenship and the principle of residence. These cases substantiate the tendency which has become ever so visible recently: the principle of residence prevails over the principle of nationality. Nevertheless, other private international law principles also emerge in the context of the analysed cases, such as the doctrine of vested rights, the principle of mutual recognition or legal institutions underpinning public policy. At the same time, the connecting factor between facts of the cases is EU citizenship and the rights deriving from EU citizenship, such as the principle of equal treatment, free movement, residence rights and the freedom of establishment, the freedom to provide services, the principle of mutual recognition, therefore EU law is also relevant in these cases. These principles establish direct connecting links to EU law even if the determination of the rules in respect of the right to bear a name undoubtedly falls under the competence of Member States. Thirdly, the cases also involve human rights aspects as they concern the rights set out in the Charter of Fundamental Rights (the ‘Charter’), such as the right to respect for family life, or those specified in the European Human Rights Convention (EHRC), such as the right to private life and the right to cultural identity. Consequently, we may state that the issue of the right to bear a name relates to different fields of law. What is common in the cases presented below is that national courts turned to the CJEU in the framework of the preliminary ruling procedure with the question whether they had competence in the case concerned. The CJEU is responsible for assessing the compatibility of national law with EU law principles. The CJEU fulfilled its duty and

5

See Lehmann, supra note 4, pp. 136; Thomas Rauscher, Internationales Privatrecht, C.F. Müller Verlag, Heidelberg, 2009, p. 46.

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declared in each respective case that the issue of bearing a name falls under the competence of the Member States, however, the provisions of national law and their application must comply with EU law.

21.2

Connecting Factors

In the context of the European conflict of law rules connecting factors play a significant role. The function of connecting factors is to resolve the collision between legal systems in conflict with each other and to determine the law applicable in the course of adjudging the facts. Personal law is a basic connecting factor which facilitates the determination of the applicable law in legal relationships governed by personal, family and inheritance law. The two main connecting factors in case of natural persons, which have relevance from the aspect of the legal status and capacity of persons, are nationality and habitual residence. The principle of nationality (lex patriae) expresses the public law relationship between a particular state and the natural person possessing the citizenship of such state. From the perspective of private international law, the principle of nationality indicates under which legal system the natural person belongs and what the rights and obligations of the person concerned are.6 Nationality governs the personal rights of the persons, including the right to bear a name, in those European states that belong to the civil law system. Nationality as a connecting factor became widespread in the second part of the 19th century in parallel with the formation of the nation states. In respect of the newly formed nation states, nationality as a connecting factor indicated the close relationship of the person with the state.7 Nationality as a connecting factor has permeated private international law thanks to the persuasive work of Pasquale Stanislao Mancini. The benefits of applying the nationality based connecting factor are that this connecting factor is transparent, easily verifiable through documents and ensures relative stability as acquiring the nationality of another state may be complex and lengthy. The disadvantage of this connecting factor is that in case of multiple citizenship different legal systems compete with each other, while the factor does not provide an answer to the dilemma of refugees and stateless persons either. Dual citizenship poses a special problem for private international law as regards the following question: the law of which state shall determine the legal status of the natural person concerned? The so-called principle of actual citizenship could provide a solution to the question. According to this principle, a closer connection may be determined between

6 7

See Rauscher, supra note 5, pp. 46. See Rauscher, supra note 5, pp. 48-49.

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the person and the state on the basis of the habitual residence of the person concerned. This principle is similar to the place of habitual residence. Since the second part of the 20th Century, citizenship as a connecting factor has considerably lost its significance and has been gradually supressed. This is due to several reasons. Firstly, as a result of social and globalisation trends the role of migration and mobility has significantly increased. Due to the dismantling of the borders between European states, we are currently experiencing a massive flow of workforce from Member States and third states as well. There are several states that serve as target countries for immigrants, refugees and employees who have resided in the territory of the state for a longer period of time with their multigenerational families without possessing the citizenship of the host state. Therefore, domicile or habitual residence better reflect the actual connection to the state concerned. The term of habitual residence is not determined exactly under private international law acts – save for certain exceptions. Regarding the definition of the term, statutory instruments and judicial case-law usually highlight among the necessary elements the permanence, stability and the intention to reside. In order to determine permanence the fulfilment of a certain period of time is essential, for instance the German judicial practice requires 6 continuous months of residence in the Member State and Ireland8 assumes stability in case the close relationship is substantiated. Moreover, the intention of the person to stay and reside in the state is also required, for instance the Hungarian act on private international law sets out that in the course of determining residence the intention to settle down is indispensable. In respect of the Hague Conventions and even EU law we may witness a shift from the application of the connecting factor of nationality towards the application of habitual residence. Since the Hague Convention of 1956 on the law applicable to maintenance obligations towards children,9 the maintenance of the child shall be determined pursuant to habitual residence instead of citizenship. Taking into account the Child Protection Convention of 199610 and the Convention adopted in 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance11 it seems clear that the connecting factor of nationality has been replaced by habitual residence regarding the law of international child protection.

8

The term ‘habitually resident’ is not defined in Irish law. In practice it means that you have a proven close link to Ireland. The term also conveys permanence – that a person has been here for some time and intends to stay here for the foreseeable future. 9 Convention of 24 October 1956 on the law applicable to maintenance obligations towards children; Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations. 10 Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measure for the protection of children. 11 Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance;Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations.

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EU law also fails to determine precise criteria regarding habitual residence. Although there are legal instruments regulating the content of habitual residence in respect of a given field of law,12 it is the CJEU that plays a major role in shaping the standards.13 In the majority of private international law rules, habitual residence represents an alternative besides citizenship. For instance, in the general competences provisions of the Brussels II bis regulation, citizenship and habitual residence are alternative causes determining the applicable jurisdiction. The importance of these alternative causes was confirmed by the CJEU in the Hadadi case.14 In lack of choice of law, the Rome III regulation on the rules applicable to divorce and legal separation15 offers the possibility for the married couples to choose habitual residence instead of nationality. According to the Rome II regulation on non-contractual obligations, the law of the country where both parties were habitually resident when the damage occured shall be applied as an exception under the principle of general connecting factor. In lack of choice of law, the Rome VI regulation on maintenance regulates that in the course of objective connection the habitual residence of the person entitled for maintenance shall be applied.

21.3

21.3.1

The Cases

The Garcia Avello Case

According to the facts of the Carlos Garcia Avello v. Belgian State case16 the Spanish citizen Carlos Garcia Avello and the Belgian citizen Isabelle Weber got married in 1986 in Belgium where they had their permanent residence. They had two children who became Belgian 12 Council Directive of 28 March 1983 on tax exemptions applicable to permanent imports from a Member State of the personal property of individuals (83/183/EEC). 1. For the purposes of this Directive, ‘normal residence’ means the place where a person usually lives, that is for at least 185 days in each calendar year, because of personal and occupational ties or, in the case of a person with no occupational ties, because of personal ties which show close links between that person and the place where he is living. However, the normal residence of a person whose occupational ties are in a different place from his personal ties and who consequently lives in turn in different places situated in two or more Member States shall be regarded as being the place of his personal ties, provided that such person returns there regularly. This last condition need not be met where the person is living in a Member State in order to carry out a task of a definite duration. Attendance at a university or school shall not imply transfer of normal residence. 2. Individuals shall give proof of their place of normal residence by any appropriate means, such as their identity card or any other valid document. 13 See more the determination of the notion regarding the habitual residence of the child in several judgements: C-523/07, A. case, ECR 2009, I-02805; C-497/10 PPU, Mercredik, Chaffe case, ECR 2010, I-14309. 14 C-160/08 Hadadi and Hadadi case, ECR 2009, I-6871. 15 See the detailed analysis of Rome III and Rome VI regulations: D.T. Czigler and K. Raffai, ‘Az európai integráció újabb állomása: egységesülő európai nemzetközi (kollíziós) családjog’, 5-6 Külgazdaság – Jogi Melléklet (2013), pp. 43-69. 16 C-148/02 Carlos Garcia Avello v. Belgian State 2003, ECR I-11613.

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and Spanish citizens. Pursuant to the provisions of the Belgian Civil Code the Belgian authorities issued the birth certificates for the children under the name of the father, namely under the surname of Garcia Avello. However, the Spanish embassy in Brussels registered Garcia Weber as the surname of the children pursuant to Spanish law, which is based on the connection of the father’s name and the mother’s maiden name. Referring to these legal provisions, the parents requested the competent Belgian authorities to amend the surname of the children to Garcia Weber. The Belgian authorities denied the request due to the fact that Belgian private international law rules prescribes the application of the principle of citizenship and in case of dual citizenship, if one of the citizenships is Belgian, the rules of Belgian substantive law shall prevail. The respective law provides for an exception only if the person concerned does not have a close relationship with the Belgian State, for instance the person lives in another Member State, in this case the name of the child may also be determined pursuant to foreign law. This rule could not be applied in the current case because the children are dual citizens and one of their citizenship is Belgian. The parents did not accept the decision and the Belgian State Council referred the case to the CJEU for a preliminary ruling. The question of the Belgian authorities was whether it is contrary to the principles of EU law relating to European citizenship and to the free movement of persons, enshrined particularly in Articles 17 and 18 of the Treaty on the European Community (EC Treaty) if Belgian administrative authorities refuse the application to change the surname of minor children residing in Belgium who have dual Belgian and Spanish citizenship, which application is in compliance with the Spanish law and traditions but contrary to Belgian law. The authorities referred to the exception rule in respect of the lack of close relationship with the Belgian State and they also denoted that such rule could not be applicable to those dual citizens who have Belgian citizenship as these citizens shall be treated exclusively as Belgian citizens in respect of whom the Belgian law is the governing law. The authorities also emphasised that taking into account the traditions developed in the Belgian society, the differently formed surnames may raise questions regarding the origins of the children. Pursuant to the Belgian, Danish and Dutch governments, adopting rules in relation to the right to bear a name falls under the competence of Member States. According to the CJEU, the question concerned could fall under the scope of EU law as the children possess union citizenship which has a direct connection with EU law. Moreover, regardless of the fact that the rules in relation to the right to bear a name fall under national competence, the rules must be applied in accordance with EU law. One of the most important fundamental rights of union citizens is free movement and freedom of residence. Article 18 of the EC Treaty implies that the right to free movement is a fundamental right which is not bound to economic goals and EU citizens are entitled to exercise this right regardless of their place of residence, thus, moving from one Member

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State to another is not considered a prerequisite for enjoying the benefits of the right to free movement. The applicants also referred to Article 12 of the EC Treaty regarding the prohibition on discrimination on grounds of union citizenship, therefore, the CJEU had to assess whether prioritising Belgian citizenship against the citizenship of another Member State could be considered discriminatory. According to the interpretation of the CJEU, the prohibition on discrimination means that comparable situations shall not be treated differently and different situations shall not be treated identically. Nevertheless, the current case was characterised by this feature. The Belgian law contains indistinctive rules regarding Belgian citizens and foreign citizens residing in Belgium. Although dual citizens are in different position, they may face disproportionate obstacles if they acquire a surname in a Member State with different traditions and rules than the Members State providing their other citizenship. Moreover, favouring the law of one of the citizenships at the expense of the other is considered discriminatory. On the basis of the above reasons the CJEU found the decision of the Belgian authorities incompatible with Articles 12 and 17 of the EC Treaty. Miklós Király notes that an intercultural tension emerges in the judgement17 deriving from the diverse naming traditions of the two legal systems. This is supported by the argumentation of the Belgian authorities according to which the invariability of the names forms part of the social order and guarantees the identification of persons, consequently, derogation from the respective Belgian law is only possible in particularly justified cases with the permission of the king. The Garcia Avello case opened a new chapter in the relationship between EU law and private international law as the CJEU entered into a field previously upheld as the domaine réservée of Member States.18

21.3.2

The Grunkin and Paul Case 19

Dorothee Paul and Stefan Grunkin, a married German couple residing in Denmark had a child whose name was registered as Leonhard Matthias Grunkin-Paul. The child is a German citizen and has been living in Denmark since his birth. Pursuant to the document issued by the competent Danish authorities, which certifies the name of the child, the surname Grunkin-Paul was given to the child and the same surname was entered into his Danish birth certificate. In the meantime, the couple divorced and the father returned to Germany, while the child stayed in Denmark with his mother. The competent authorities

17 M. Király, Egység és sokféleség – Az európai Unió jogának hatása a kultúrára, Új ember Kiadó, Budapest, 2007, p. 87. 18 See Lehmann, supra note 4, pp. 139. 19 C-353/06 Leonard Matthias Grunkin-Paul v. Standesamt Niebüll 2008, ECR I-07639.

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entitled to issue the travel documents of the child are the German authorities on the basis of the citizenship of the child, nevertheless they refused to issue the documents containing the double surname of the child on the ground that German law does not ensure the application of surnames for German citizens. According to German private international law the surname of the person is determined on the basis of the law of the citizenship of the person and German substantive law does not provide the possibility to give a double surname to the child deriving from the surnames of his mother and father. The authorities did not give effect to the request for judicial review submitted by the parents. The parents of child, who did not share a common surname, refused to determine the name of their child pursuant to German law. The question of the German court referred for preliminary ruling was that whether, in light of the prohibition on discrimination set out in Article 12 of the EC Treaty and having regard to the right to free movement of all unions citizens as laid down by Article 18 of the EC Treaty, could the German provision be applicable to the conflict of laws providing that the law relating to names is exclusively governed by nationality and the law of the place of residence is ignored. In essence, the national court asked whether Articles 12 and 18 of the EC Treaty preclude the competent authorities of a Member State from refusing to recognise a child’s surname, as determined and registered in a second Member State in which the child – who, like his parents, has only the nationality of the first Member State – was born and has been resident since birth. Similarly to the Garcia Avello case, the CJEU first had to assess whether the situation of the child falls under the material scope of the EC Treaty. The CJEU confirmed and reinforced its findings adopted in the Garcia Avello case according to which the link with EU law may be established in respect of those children who are citizens of a Member State but resident in the territory of another Member State. Therefore, the child can rely, in principle, in respect of the Member State of which he is a citizen, on the right conferred by Article 12 of the EC Treaty not to be discriminated against on grounds of nationality and on the right, established by Article 18 of the 18 EC Treaty, to move and reside freely within the territory of the Member States. Having to use a surname, in the Member State of which the person concerned is a national, that is different from that conferred and registered in the Member State of birth and residence is liable to hamper the exercise of the right to move and reside freely within the territory of the Member States. The CJEU reminded that it has already been declared in the Garcia Avello case that treating dual citizenship differently and unjustifiably preferring one citizenship over the other works to the detriment of the other, moreover as a result of the above, purely taking into account the rules of one national legal system relating to the right to bear a name could cause serious inconveniences to the person concerned both in his professional and private life. In this respect it is irrelevant whether the divergent surname derives from the dual citizenship of the person concerned or from the different rules regarding the determi-

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nation of names which are applicable in the states of residence and nationality of the person concerned. There are numerous situations in everyday life that require certification of identity mainly through the usage of passports. If the German authorities refuse the acceptance of a surname determined and registered in Denmark, then the authorities issue a passport to the child which contains another name than was previously registered. Consequently, each time he needs to certify his identity in Denmark he is faced with difficulties due to the fact that his surname indicated in his travelling document is different than his surname registered with the Danish authorities. Having regard to the specific situation of the child such inconveniencies occur frequently, since although he lives in Denmark with his mother he regularly spends longer periods of time in Germany when visiting his father. Every time the surname used in a specific situation does not correspond to that on the document submitted as proof of identity, inter alia with a view to obtaining benefits or an entitlement or to prove that examinations have been passed or skills acquired, or the surnames in two documents submitted jointly are not identical, such a difference in surnames is likely to give rise to doubts as to the person’s identity and the authenticity of the documents submitted, or the veracity of their content. The CJEU did not accept the argumentation of the German government according to which the exclusive linkage between surname and citizenship constitutes an objective criterion ensuring certainty and continuity. Such a criterion intends to achieve the equal treatment of persons possessing different citizenships and ensures the uniform determination of the names of persons sharing the same citizenship. Pursuant to the standpoint of the CJEU, these considerations aiming to facilitate public administration do not provide adequate grounds for justifying an impediment to the right to move and reside freely within the territory of the Member States. As a result of the comparison of the two cases we may highlight several differences. The question was raised whether there was an actual international element in the Garcia Avello case at all, for the children had been living in Belgium since their birth and had not left the country – the Community dimension of the case could hardly be presumed.20 While, in the Grunkin-Paul case a veritable private international law conflict evolved between the laws of the Member States of habitual residence and citizenship. In the latter case, this very international conflict expresses the link with EU law. Underlining the private international law aspects of the case, it is also important to emphasize that the CJEU did not draw a distinction between the connecting principles and considers nationality and residence equally. Through its judgements the CJEU confirms the trend pursuant to which the previously dominant function of the connecting factor of nationality has lost its importance in determining the status of the natural person. 20 See Lehmann, supra note 4, pp. 144.

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21.3.3

The Ilonka Sayn-Wittgenstein Case 21

In the Garcia Avello and Grunkin Paul cases different legal solutions of different legal cultures clashed regarding the diverse methods for determining the name of natural persons. The main characteristic of the Ilonka Sayn-Wittgenstein case was a culmination of the conflict between social structures involving modern perspectives and traditional standpoints. An Austrian citizen residing in Germany, Ilonka Kerekes, was adopted by a German citizen in 1991. As a result of the adoption the adoptee was given the surname and nobility title of the adoptive parent which was added to her birth name. The German authorities issued a driver’s licence to her under the name of Ilonka Fürstin von Sayn-Wittgenstein and she also established a real estate company.22 The Austrian authorities registered her new name into the Austrian birth register, also extending the validity of her passport in 2001 issued previously under her new name; moreover the Austrian consulate in Germany issued citizenship certifications. In 2003 the Austrian Constitutional Court (Verfassungsgerichtshof) decided in a similar case that act of 1919 on the abolition of nobility forbids Austrian citizens to acquire a name including nobility prefixes. In 2007, following the judgement, in his decision the registrar in Vienna (Landeshauptmann von Wien) amended the surname to SaynWittgenstein on the basis that the earlier registration was incorrect. The person concerned applied for legal remedy against the decision which was refused. Then, she turned to the Austrian Administrative Supreme Court (Verwaltungsgerichtshof) and requested the annulment of the decision. She argued that failing to recognize the consequences of name related aspects of adoption infringes the right to free movement as set out in Article 21 of the Treaty on the Functioning of the European Union (TFEU), since she needs to bear two different names in the two Member States concerned which may give rise to misunderstandings or disadvantages. She also pleaded that the right to respect for family rights pursuant to Article 8 ECHR was also infringed as the competent authorities intended to amend her name after having used it for 15 years. In addition, according to the applicant the freedom to provide services under Article 56 TFEU was also infringed, because she had previously registered an enterprise under that name. The Austrian court sought to answer the question whether the Austrian rules, on the basis of which the recognition of nobility prefixes previously acquired through adoption in another Member State could be refused according to Austrian constitutional law, contravened Article 21 TFEU. In the course of the proceedings, the Austrian government elaborated that act 1919 on the abolition of nobility is a rule situated at the constitutional level of the hierarchy of laws,

21 C-208/09 Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien, ECR 2010, I-13693. 22 Princess Sayn-Wittgenstein.

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introducing the principle of equality in parallel with the formation of the Austrian Republic. The government also mentioned that ignoring the principle would seriously breach the values making up the foundations of the Austrian legal system and finally, it would result in the infringement of Austrian public policy.23 The applicant disputed that Austrian public policy had actually been infringed in the specific case, as there is no real close connection between her and the Austrian state, taking into account that she has been living in Germany for many years, she resided there and pursues economic activity in Germany, therefore, if the adequate connection is lacking then public policy cannot be infringed.24 The CJEU stressed that the person’s name determines the personality of the person and forms an essential component of private life which is granted by Article 7 of the Charter and indirectly by Article 8 of ECHR. The CJEU pointed out in its earlier case-law, especially the Garcia Avello and Grunkin-Paul cases that the different rules of the Member States in respect of surnames are capable of hindering union citizens in exercising their rights to free movement and residence. The basic difference between these cases and the Ilonka Sayn-Wittgenstein case is that in case of the latter, both Austrian and German private international law prescribe the application of the principle of citizenship for the purposes of determining surnames. Although the connecting principles are the same, the substantive provisions differ in the sense that Austrian law considers the prefix ‘Fürstin von’ as a nobility prefix, while German law considers it an immanent component of the surname. According to the Austrian and German governments, the case should not focus on the acceptance of the decision of another Member State because the case concerns the mistake of the Austrian authority since Austrian law did not ensure the application of nobility prefixes, not even at the time of registration, therefore, the Austrian authority merely corrected the originally erroneous registration in compliance with the effective law. The correction and the elimination of the nobility prefix could not seriously violate the rights of the person concerned as her surname has not been changed. Nobility prefixes serve the purpose of identifying the social status of a person, while surnames ensure the identification of the person who bears the given name. Taking into account that following the correction, 23 32nd point of the judgment. 24 The public policy clause is a special legal institution of private international law, an exceptional tool, by way of which the lawmaker would like to protect the basic values of the given legal system. The content of the public policy is relative, it changes in time and place, thus, the law maker is generally regulating it by general clauses, which are filled with content by the law enforcement in the certain cases, when the possibilty of the public policy exception emerges. The requirements of the public policy objection: shinreichende Innlandsbeziehung, which is present in connection with both some elements of the state of affairs and int he case of the protectable law system. Usually the nationality or the residence are these; it is evident that both the offensichtliche Unvereinbarkeit and the foreign law are harming a basic law, the law of discrimination, i.e. the ban of the negative judgment against the foreign law. T. Rauscher, Internationales Privatrecht, C.F. Müller Verlag, Heidelberg, 2009, pp. 130-132.

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the central identification element of her surname remained unchanged, there could be no misunderstanding regarding her personal identification. Consequently, it falls under the competence of the Member State to decide whether it intends to admit the usage of nobility prefixes or not. In its response the CJEU underlined that change of name forms part of the social order and the risk that a person needs to dissolve the doubts in relation to her identity clearly restrict her right to free movement. Nevertheless, on the grounds of objective reasons free movement may be restricted in case it is proportionate with the aims of domestic law. The act on the abolition of nobility belongs to the components of national identity which needs to be assessed in parallel the fundamental freedoms. In light of Austrian constitutional law it is clear that the act on the abolition of nobility forms part of Austrian public policy, and as such, it may be taken into account in the range of possible restrictions to the right to free movement. The EU respects the national identity of the Member States, and the existence of a republic as a general form of government falls under this category. In the framework of national identity, the act on the abolition of nobility expresses the equal rights of Austrian citizens and the EU legal order guarantees the respect for such a right. A measure restricting an EU fundamental freedom can only be justified with reference to the protection of public policy in case the public order could not be ensured by any other measure and the measure itself complies with the criteria of proportionality. In the present case it could not be considered a disproportionate restriction that the Member State forbade the acquisition and usage of nobility titles or prefixes in order to guarantee equality between its citizens.

21.3.4

The Malgožata Runevič-Vardyn és Łukasz Pawel Wardyn Cases 25

Similarly to the Konstantinidis case,26 legal issues surrounding the transcription of surnames and given names stand in the focus of the CJEU’s recent judgement. Malgožata Runevič-Vardyn was born in Lithuania in 1977 as a Polish national and Lithuanian citizen. According to her standpoint, she was registered at the time of her birth as Małgorzata Runiewicz pursuant to her Polish origins. Her birth certificate was issued 25 C-391/09 Malgožata Runevič-Vardyn and Łukasz Pawel Wardyn ECR 2011, I-03787. 26 C-168/91 Konstantinidis k. Stadt Altensteig Standesamt ECR 1993, I-1191. This was the first contentious case in the jurisprudence of the European Court. According to the facts of the case, the name of the Greek citizen was transcribed with latin characters by the German authorities, and as a result, his name had changed. According to the applicant, this affected his economic activity, because he lost his clients. The European Court stated, that despite the fact that there is no Community rule, which would preclude the rewriting of names with latin characters, the disputed German practice does not comply with Community law, since the freedom of establishment contains the right to start economic activity which is significantly restricted if one’s name is re-written and clients no longer recognize the person in question.

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in Cyrillic script. The Lithuanian authorities issued her passport in 2002 and birth certificate in 2003 and they transcribed her name pursuant to Lithuanian grammatical rules, in other words her name was amended to Malgožata Runevič instead of Małgorzata Runiewicz. In 2007 she married a Polish citizen Łukasz Pawel Wardyn in Vilnius. In the marriage certificate the Lithuanian authorities transcribed the name of the husband pursuant to Lithuanian grammatical rules disregarding the diacritic signs in his name, therefore, his name was spelled Lukasz Pawel Wardyn in the Lithuanian official documents. Meanwhile, the wife’s name was also entered into the marriage certificate in accordance with the Lithuanian rules of spelling, but differently than that of her husband. The letter ‘w’ and the diacritic signs were not included in her name and she war registered as Malgožata Runevič-Vardyn. The couple currently lives in Brussels with their child. In 2007 the wife requested the Lithuanian authorities to amend her name in the birth certificate to Małgorzata Runiewicz, and in the marriage certificate to Małgorzata Runiewicz-Wardyn. She based her claim on Article 21 TFEU, referring to the fact that her right to free movement and residence was seriously restricted since her birth and marriage certificates do not reflect her Polish name and do not indicate her relationship with her husband or her son. After her request was refused, the couple submitted a claim to the Vilnius court which turned to the CJEU with the question whether the domestic rule, which prescribes that surnames and given names of persons of foreign origin or citizenship must to be transcribed pursuant to the official grammatical rules of the Member State, is compatible with the directive on the principle of equal treatment between persons irrespective of racial or ethnic origin, the principle of prohibition on grounds of citizenship and the provisions regulating free movement and residence of persons in the territory of the EU. The CJEU declared that the regulation of the surnames and given names does not fall under the scope of Directive 2000/43 on the principle of equal treatment between persons irrespective of racial or ethnic origin.27 Regarding the scope the CJEU confirmed the reasoning set out in the Garcia Avello and Grunkin-Paul cases, moreover, it also emphasised that name is deemed to be a component of identity and personal life which is protected under the Charter of Fundamental Rights and the ECHR. Regarding the subsequent change of the applicant’s birth name, the CJEU stated that this cannot constitute treatment that is less favourable than that which he enjoyed before availing himself of the opportunities offered by the Treaty in relation to free movement of persons. The applicant’s name which he was given by birth was transcribed identically in each official document, therefore the infringement of the right to free movement could not be established.

27 The EK Council directive from 29th of June, 2000, 2000/43/EK about the application of equal treatment without taking into account racial, ethnical aspect.

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To the question that the joint surname of the wife spelled differently than the spelling pursuant to the husband’s place of origin is capable of constituting serious inconveniences to the wife, the CJEU answered that this may constitute a restriction if it involves serious inconveniences at administrative, professional and private levels. For reasons of jurisdiction, it is up to the domestic court to determine whether these inconveniences amount to such a restriction and the court shall ensure the balance between the respect for private and family life and the protection of the official national language. In respect of the spelling rules of the husband’s name the CJEU highlighted that diacritic signs are often abandoned for technical reasons and those who do not know the specific foreign language do not even know what such signs exactly mean and for these persons it is doubtful that the lack of such signs would constitute real and significant inconveniences or would raise doubts regarding the identity of the person or in relation to the validity of the documents, therefore, it does not restrict the EU freedoms.

21.4

Conclusions

Irrespective of the differences, the cases introduced exhibit several similarities as the CJEU primarily sought to answer the question whether the right to bear a name regulated under domestic laws falls under the scope of EU law and how union law may be applied on the basis of the common connecting factor, i.e. EU citizenship. Originally, the concept of cultural identity formed an integral part of public international law dogmatics and could be connected to the protection of minorities. The issue of the cultural identity of natural persons has most recently infiltrated private international law and is becoming ever so relevant. Based on the cases presented above, we may state that this notion certainly affects EU law. Indirectly it also impacts on fundamental freedoms by allowing for their assessment from a new point of view. Nevertheless, we may arrive at a similar conclusion with respect to private international law. According to Eric Jayme,28 the first author to use the terminus in the framework of private international law, the protection of cultural identity creates new relationships in the system of classical connecting factors. In our current multicultural society, the time has come to re-evaluate the principle of citizenship which as a connecting factor has lost its importance since the era of Mancini. The close relationship between the person and the respective nation must be expressed in the applicable domestic law (Heimatrecht) which does not necessarily mean unconditional concurrence with the law of citizenship or residence. The determination could be performed by the person concerned who would be in the position to choose the law capable of protecting the person’s cultural identity. This principle mainly should be taken into account in family and inheritance law. 28 E. Jayme, Internationales Privatrecht und Völkerrecht – Studien – Vorträge – Berichte, C.F. Müller Verlag, Heidelberg, 2003, 41.

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Following Jayme’s approach, providing the possibility to the person concerned to choose the law that expresses his cultural values best certainly seems to be the appropriate solution. The different traditions in respect of personal and family life resulted in a unique development of law in the Member States of the EU. The differences between cultural traditions and the lack of legal harmonization in this field generated problems in determining the surnames and given names of EU citizens originating from different Member States. Regardless of the success achieved in the field of family law, the area of personal law, especially the right to bear a name, is still very complex since these rules are currently not affected by the harmonization activities of the EU. Nevertheless, even if these questions indirectly fall under the scope of EU law, they must be in compliance with EU principles. In all the cases presented above the basic issues related to compliance with national law, prohibition of discrimination, equal treatment, free movement, mutual recognition and mutual trust acquired significance. For lack of uniform union law in this field, Member States shall apply their own rules, while the CJEU will be responsible for assessing the compatibility of such rules with EU law. This path of legal development is slow and involves several uncertainties. The real solution would be inclusion of this area of private international law and substantive law under the harmonization efforts of the Union. A unified register of names and the introduction of EU personal documents could result in a more transparent situation.

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Legal Issues of Harmonizing European Legal Migration

Ágnes Töttős*

22.1

Introduction There are a number of striking similarities in the challenges confronting European states: demand for skills in a knowledge-based economy, ageing populations, strains on welfare provisions, and public anxieties about the impacts of immigration.1

It is therefore no surprise that the European Union is trying to deliver common answers to such crucial challenges. An essential element of these answers is the harmonized admission of third-country nationals to the territory of the EU and thus, the creation of a European Legal Migration Policy benefiting both the Member States and the Union. States might be assumed to formulate their migration policies on the basis of attempting to maximize their economic and security interests. They attempt to attract ‘desirable migrants’ who meet the economy’s labour market needs, while deterring ‘undesirable migrants’ who offer little economic benefit and who are perceived to be a threat to that society’s security (conceived in the broadest sense). A heuristic starting point might then be to regard states’ interests in international politics as being based on maximizing their economic and security interests. Where these interests are best met through international cooperation, one might expect a state to have a preference for cooperation; where they are best met through competition, one might expect as preference for competition.2 The core of the debate on when and how to act on a European level in the field of legal migration of third-country nationals is undoubtedly of mainly economic and political * 1 2

Legal expert, Ministry of Interior – Department of European Cooperation, Hungary. E-mail: [email protected]. C. Boswell and A. Geddes, Migration and Mobility in the European Union, Palgrave Macmillan, Great Britain 2011, p. 81. A. Betts, Global Migration Governance, Oxford University Press, Oxford 2012, p. 20.

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Ágnes TöttŐs nature. The Council is therefore primarily criticized for the stubbornness of Member States3 assuming they are not willing to cooperate because of economic or political reasons. Yet, the negotiations within the relevant Working Group of the Council definitely show the importance of legal issues, for it is important to recall that the tools of harmonization in this field are legal acts, more specifically directives, which should not only contain clear provisions on European level, but must be interpreted by the 28 Member States when transposing them into their national laws and applying them to individual cases of applications. This much forgotten legal aspect of harmonizing legal migration is what I intend to shed light on by discussing some legal questions which at times gave rise to heated discussions among the legal experts of the Member States in the relevant Working Group, but also enabled some friendly brainstorming with international colleagues. The first legal question discussed in this study concerns the basic system of the directives on legal migration laying down a harmonised set of criteria for admission and the question on what competence the Member States rely on when deciding on such conditions on their own. Secondly, this paper also intends to describe presently existing intra-EU mobility rights under EU rules on immigration. Thirdly, the study discerns the limitations that still form obstacles in achieving the highest level of free movement of third-country nationals, especially migrant workers within the European Union. These three identified legal issues and the outcome of the respective debates definitely affect the way thirdcountry nationals are admitted to first and second Member States and consequently determine the actual margin of manoeuvre when discussing the future of European legal migration policy.

22.2

A Summary of the Evolution of EU-Wide Harmonized Rules in the Field of Legal Migration of Third-Country Nationals

The European Commission primarily aimed at approaching legislation on legal migration of third country nationals from an economic point of view. Accordingly, the Commission proposed a Council Directive on the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities on 11 July 2001.4 No matter how noble the intention of the Commission was to create an EUwide harmonised system for a very wide range of third-country migrants, i.e. to follow a 3

4

See e.g. Y. Pascouau, ‘EU Immigration Policy: Act Now before It Is too Late’, EPC Commentary, 20 June 2013, p. 3: ‘First, a common policy in the field of legal migration should aim to overcome the current selective approach and adopt common conditions for the admission of migrant workers to the EU. While member states are highly reluctant to do so, several arguments make this move realistic and positive.’ Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities (COM/2001/0386 final – CNS 2001/0154).

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horizontal approach in order to cover both the groups of employees and self-employed persons, the negotiation of the Directive revealed many problems. ‘The proposal, which closely followed the 1999 Tampere Programme’s milestones, was finally withdrawn because representatives of certain EU Member States expressed deep concern about the possibility of having ‘more Europe’ in these nationally sensitive fields.’5 Turning to other categories of migrants besides workers and entrepreneurs, the proposals of the Commission, launched according to the instructions set out by the Tampere European Council, on sets of harmonized rules on third-country nationals arriving for purposes such as family reunification, studies and research had been more successful and resulted in a number of directives adopted between 2003 and 2005. Directive 2003/86/EC6 on family reunification adopted as the first legal migration directive harmonizes criteria for family reunification between third-country nationals and therefore embraces family reunification as a right of migrants. Directive 2003/109/EC7 creates a European regime for acquiring EU long-term residence status after five years of legal residence in a Member State. Directive 2004/114/EC8 focusing mainly on migrants arriving for study purposes and Directive 2005/71/EC9 setting up a unique procedure for the admission of researchers reflect the EU’s preference for knowledge-based migration. The Hague Programme of November 2004, continuing the implementation of the initiatives of the 1999 Tampere Programme, stressed that legal migration plays an important role in strengthening the knowledge-based European economy, economic development and also contributes to the implementation of the Lisbon Strategy. In order to facilitate the adoption of a new draft Directive on economic migration, the European Commission initiated an extensive consultation with its ‘Green Paper on an EU approach to managing economic migration’10 with Member States, other European institutions, international organizations and NGOs, and other interested parties as to what would be the best type of legislation at Community level in relation to the reception of economic migrants from third countries. The primary objective of the consultation launched by the Green Paper was to find the most appropriate form of regulation in the Community on the reception of migrants for 5

S. Carrera et al., ‘Labour Immigration Policy in the EU: A Renewed Agenda for Europe 2020’, CEPS Policy Brief No. 240, 5 April 2011, p. 3. 6 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251, 3 October 2003, pp. 12-18. 7 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, OJ L 16, 23 January 2004, pp. 44-53. 8 Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service, OJ L 375, 23 December 2004, pp. 12-18. 9 Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research, OJ L 289, 3 November 2005, pp. 15-22. 10 COM(2004)0811 final: Green paper on an EU approach to managing economic migration.

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Ágnes TöttŐs economic purposes from third countries, and to discover what would be the added value of the establishment of such a Community framework. The Hague Programme also referred to the Green Paper and the consultation, which would form the basis of a policy plan on legal migration including admission procedures capable of responding promptly to the changing labour market demand. The result of this consultation was the continuation of the sectorial, or more precisely selective approach of laying down migration rules for certain chosen groups of migrants instead of covering a wider scope of third-country nationals by a harmonised set of criteria. ‘The main justification was that, by doing this, the common European policy would be in line with the political priorities and legal regimes applying in most EU Member States.’11 The Political Plan on Legal Migration12 was the basis upon which the Commission envisaged a framework directive – together with four further directives covering four specific groups of economic migrants. Carrera’s view on the new Policy Plan clearly highlights the differences between the new perspective and the initial proposal of 2001: ‘The main result of the approach advocated by the Policy Plan on Legal Migration’ has been the emergence of a hierarchical, differentiated and obscure European legal regime on labour immigration which accords different rights, standards and conditions for entry and stay to different groups and countries of origin of TCN.13 The plan of five directives finally culminated in four proposals from the Commission among which the first to reach maturity for adoption was Directive 2009/50/EC14 creating the so-called EU Blue Card. The framework directive (Directive 2011/98/EU15) not touching upon admission criteria, but definitely bringing about major changes in procedural rules as well as rights was only adopted two years later. Two more draft directives – the proposal for a Directive on intra-corporate transfers16 and the proposal for a Directive

11 Carrera supra note 5, p. 4. 12 Communication from the Commission – Policy Plan on Legal Migration (SEC(2005)1680) (COM(2005)0669 final). 13 Carrera supra note 5, p. 3. 14 Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, OJ L 155, 18 June 2009, pp. 17-29. 15 Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State, OJ L 343, 23 December 2011, pp. 1-9. 16 Proposal for a directive of the European Parliament and of the Council on conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer (COM(2010)0378 final – COD(2010)0209).

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on seasonal workers17 – were proposed by the Commission in 2010. Their adoption has long been awaited as a result of the negotiations needed between the co-legislators Council and European Parliament under the ordinary legislative procedure that was extended to the field of legal migration by the Lisbon Treaty. Finally, the Directive on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers18 was adopted on 26 February 2014, while the final compromise text of the Directive on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer was adopted on 15 May 2014.19

22.3

Legal Issues of Harmonizing Legal Migration of Third-Country Nationals

22.3.1

List of Criteria and the Use of Parallel Schemes

The EU Directives concerning legal migration following the approach of setting out harmonized provisions for certain groups of migrants arriving with specific purposes use the method of prescribing a harmonised list of criteria for the admission of third-country nationals to the territory of a Members State. Furthermore, such a closed list of entry and residence conditions are complemented by harmonized set of grounds for refusal, withdrawal and non-renewal in order to provide a single, unified approach on behalf of Member States concerning the targeted groups of migrants. The need for such a method of legislation derives from the primary law of the EU, as it defines specific objectives in the field of home affairs, as Article 79 (1) of the Treaty on the Functioning of the European Union (TFEU) sets out that: The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of thirdcountry nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings.

17 Proposal for a directive of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals for the purposes of seasonal employment (COM(2010)0379 final – COD(2010)0210). 18 Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers, OJ L 94, 28 March 2014, pp. 375-390. 19 Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer, OJ L 157, 27.5.2014, p. 1–22.

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Ágnes TöttŐs The creation of common immigration policy is the ultimate aim of harmonization in the field of home affairs and such a goal can only be successfully achieved in case the harmonization of the national laws of Member States is carried out on the basis of clear lists of criteria agreed at EU level, thus, creating transparent and simplified legislative procedures. As the objectives of the Directives in the field of legal migration are to set up procedures for the admission of certain categories of third-country nationals, based on common definitions and harmonised criteria, and to define their conditions of residence as well as their rights. Unless the Directives contain an exhaustive list of criteria for admission and grounds for refusal, withdrawal or non-refusal, the legislative acts will entail extremely diverse implementation in the Member States and will not achieve the objectives set, basically depriving thereby the Directives of any effectiveness. Consequently, any derogation from the provisions of the Directives must expressly be allowed by the relevant directive itself, either by the use of optional clauses or by including a specific article allowing for preferential provisions concerning specific paragraphs. Nevertheless, there are still voices20 demanding the inclusion of a non-exhaustive list of criteria for admission in the presently negotiated Directives, meaning that the criteria included would only constitute a core list of conditions, while Member States would reserve the right to add further criteria under their respective national legislations. It is also occasionally suggested that even if the third-country national fulfils the criteria set forth, the Directive should not create an obligation on the part of the Member State to take a positive decision. This problem has recently been raised21 once again in a case22 before the Court of Justice of the European Union, as Germany based its decision refusing the admission of a Tunisian citizen for purposes of study on grounds other than those set out in Directive 2004/114/EC.23 The essence of the case lies therefore in the problem that the German legislation provided 20 See Amendment proposal No. 140 in document of EP Committee on Civil Liberties, Justice and Home Affair on Amendments 29-280 to Draft report on the Proposal for a directive of the European Parliament and of the Council on conditions of entry and residence of third-country nationals in the framework of an intracorporate transfer. 21 The question referred to the Court of Justice of the EU: ‘Does Council Directive 2004/114/EC 1 of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service establish a non-discretionary right to a visa for the purposes of studies and the subsequent residence permit under Article 12 of the so called “Student Directive”, if the “conditions of admission”, namely those listed in Articles 6 and 7 of the directive, are met and there are no grounds for refusing the visa under Article 6(1)(d) of the directive?’ 22 Judgment of the Court (Third Chamber) of 10 September 2014 – Mohamed Ali Ben Alaya v. Federal Republic of Germany (Case C-491/13). 23 Question referred: Does Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service establish a non-discretionary right to a visa for the purposes of studies and the subsequent residence permit under Art. 12 of the so called ‘Student Directive’, if the ‘conditions of admission’, namely those listed in Arts. 6 and 7 of the directive, are met and there are no grounds for refusing the visa under Art. 6(1)(d) of the directive?

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discretion to the national administrative authority, as it could reject an application on the basis of reasons not listed in the Directive. The question unfolded above has further consequences for the newly negotiated directive proposals. Keeping in mind that the method of using a close list of criteria prohibits Member States from automatically continuing to use their respective national rules, Member States have no other choice to maintain their established provisions, but to propose the extension of the negotiated draft directives’ list of criteria or the set of grounds for refusal/withdrawal/non-renewal, which practically means the introduction of one (or more) national practices in European legislation, the success of which depends greatly on the number of Member States having similar national rules as well as the lobbying ability of the Member State making the proposal. Finally, what we end up with is a number of optional clauses in the directives, as it is usually a compromise solution not to force such provisions on every Member State, but to allow for their application by the Member States that choose to follow them. In spite of all these efforts to reach a compromise solution that could be applied by all the Member States, there are certain interests and purposes that could not be achieved by applying the harmonised set of provisions, at least according certain Member States. Some authors have also acknowledged that a one-size-fits-all approach is unlikely to be appropriate. Instead, most EU states have their own complicated set of legislation and programmes in place to regulate the entry and employment of non-nationals, and can see little added value in granting a greater role to the EU.24 An outstanding example for this was when several chambers of national parliaments gave a reasoned opinion concerning the directive proposal on the entry and stay of seasonal workers in order to put an obstacle to the envisaged EU harmonization in this field. The national parliaments were of the view that no legislation was needed other than the relevant national legislation in force, therefore, they invoked the principle of subsidiarity against the plans of the Commission. Consequently, certain Member States claim the right to maintain or even newly introduce national schemes existing in parallel with the harmonised EU regime of admission for a certain category of migrants. This happened in case of Austria, which decided to introduce a set of new national rules governing the so-called Red-White-Red card concurrently with the transposition of the EU Blue Card Directive, as Austria aimed to facilitate the immigration of qualified third-country workers and their families with a view to permanent settlement in Austria in a more flexible way than set forth under the EU Blue Card 24 Boswell and Geddes, supra note 1, p. 94.

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Ágnes TöttŐs Directive. Yet, this was possible, since Preamble (7) of Directive 2009/50/EC introducing the EU Blue Card clearly sets out that this Directive should be without prejudice to the competence of the Member States to maintain or to introduce new national residence permits for any purpose of employment. The third-country nationals concerned should have the possibility to apply for an EU Blue Card or for a national residence permit. It is therefore a common experience that especially in the case of the EU Blue Card, the effectiveness of the Directive is compromised by competing parallel national schemes of immigration rules designed equally for highly skilled migrants. Nevertheless, while the EU Blue Card Directive was adopted exclusively by the Council, the latest Directive proposals had to be passed by the Council and the European Parliament as a result of the extension of the co-decision procedure to the field of legal migration by the Lisbon Treaty. Consequently, if it is against harmonization and would provide a competing scheme for the application of the Directive’s provisions, neither the Commission, nor the European Parliament will approve the possibility of parallel national schemes. This principle must be followed even if the intention of Member States to keep or even newly introduce national parallel schemes for the very same groups of migrants covered by the new Directives is simply to provide a possibility for admission in cases where the Directive would be more restrictive. In line with this push for exclusive EU rules Article 2(3) of the Directive on intra-corporate transferees sets out that ‘this Directive shall be without prejudice to the right of Member States to issue residence permits, other than the intra-corporate transferee permit covered by this Directive, for any purpose of employment for third-country nationals who fall outside the scope of this Directive.’ Contrary to the permissive formulation of this provision, it actually sets out a clear prohibition of applying national schemes for those migrants to whom the provisions of the Directive are to be applied.

22.3.2

EU Instruments Governing the Mobility of Third-Country Nationals

When combined with the increasing importance given by the EU to the ‘freedom of movement’ or ‘cross-border situations’ of TCNs (intra-EU mobility) in the EU Directives on long-term residents’ status, the blue card, researchers and students, the answer to the question of who are the ‘citizens’ to be empowered by the Stockholm Programme and Action Plan takes us beyond the individual categorised as ‘national’ and towards unexpected venues and political subjectivities. […] Such an argument would be naïve without duly acknowledging

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the existence of limitations and (legal) conditions that still apply in the EU legal system to TCNs when having access to and enjoying these European citizenshiplike and citizenship-related freedoms, benefits and rights.25 There are numerous possible definitions or notions of what mobility means, especially when compared to the phenomenon of migration. As an everyday term, mobility can simply mean the ability to move freely, but the latter contains no indication of the movement’s actual extent in terms of time and distance. EU terminology tends to define mobility in a somewhat narrow context, that is, as intra-EU mobility – the ability to move freely within the European Union, as originally provided exclusively for citizens of the EU for employment purposes. The right has its origins in the Founding Treaties of the European Communities, but at that time of course, the notion of intra-EU mobility was conceived within very narrow boundaries – that is, exclusively for worker citizens of the Member States and their family members. Based on the aim of creating a common market, Community rules originally guaranteed free movement only to job seekers and workers. However, it was then recognized that guaranteeing these mobility rights is essential also for persons residing in a Member State for other purposes such as for trainees and students. The rules, therefore, were modified to cover a wider group of people, and, as a result, free movement and residence rights were expanded to cover further EU migrants. This process continued until the point was reached where, in fact regardless of purpose, and subject only to certain conditions, such as sufficient resources and health insurance, all EU citizens and their family members (regardless of nationality) currently enjoy the right to free movement and residence. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States26 summarised and re-regulated earlier EU legislation, and created a single directive on the rules on entry and residence for various purposes of EU citizens and their family members in another Member State. Thus, through successive Treaty amendments, the adoption of secondary legislation and the case law of the European Court of Justice, free-movement rights

25 S. Carrera and A. Wiesbrock, ‘Whose European Citizenship in the Stockholm Programme? The Enactment of Citizenship by Third Country Nationals in the EU’, 12 European Journal of Migration and Law (2010), pp. 337-359. 26 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (text with EEA relevance), OJ L 158, 30 April 2004, pp. 77-123.

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Ágnes TöttŐs were gradually decoupled from ‘market citizenship’ and extended to non-economically active EU citizens.27 There are major differences between the mobility rights of EU citizens and their family members, and the intra-EU mobility rights of third-country nationals as regards the personal scope as well as the conditions for exercising such rights. Short-Stay Mobility of Third-Country Nationals We have to distinguish between rules regulating the stay of third-country nationals on the territory of the EU for up to three months and stays exceeding three months. Uniform Schengen visas28 for stays up to 3 months (‘short stays’) – or more precisely 90 days within a 180-day-long period – are issued on the basis of the rules set out in the Visa Code29 and are, in general, valid for travel to and within the Schengen Area.30 Since the objective of these provisions, namely the establishment of the procedures and conditions for issuing visas for transit through, or intended stays in the territory of the Member States not exceeding three months in any six-month period, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Union level, the Visa Code was adopted in the form of a regulation. As a regulation provides full harmonisation of the applicable law, Schengen States issue visas according to completely harmonised rules with the ambition that, regardless of which Member State takes the decision, it is based on the same set of criteria and the same procedure. Such unified rules can create mutual trust even to the extent that certain Member States establish Common Application Centres for receiving visa applications on behalf of more Member States.31 Fully harmonized conditions enable Member States to mutually recognise the other’s decisions, a key precondition for free movement within the Schengen Area made possible by a visa issued by any of the Schengen States. This achievement of free movement can be

27 A. Wiesbrock, ‘Free Movement of Third-Country Nationals in the European Union: The Illusion of Inclusion’, 35 European Law Review (2010), p. 456. 28 Visa Code Art. 2(2) a): ‘visa’ means an authorisation issued by a Member State with a view to transit through or an intended stay in the territory of the Member States of a duration of no more than three months in any six-month period from the date of first entry in the territory of the Member States. 29 Regulation (EC) No. 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) OJ L 243, 15 September 2009, pp. 1-58. 30 The Schengen area and cooperation are founded on the Schengen Agreement of 1985. The Schengen area represents a territory where the free movement of persons is guaranteed. The signatory states to the agreement have abolished all internal borders in lieu of a single external border. 31 It is noteworthy that for example in Chisinau (Moldova) the Hungarian embassy established in April 2007 a Common Visa Application Centre (CAC) where Hungary issues visas on behalf of Austria, Bulgaria, Croatia, Denmark, Estonia, Finland, Greece, Latvia, Luxembourg, The Netherlands, Slovakia, Slovenia, Sweden, and Switzerland.

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enjoyed not only by Schengen visa holders, but also by long-stay visa holders32 and residence permit holders, as well, who are also allowed to travel to other Member States for 90 days in any 180-day-long period. Based on the above, it is clear that in the case of decisions concerning entry and stay of third-country nationals for short stays within the Schengen Area complete mutual recognition exists. This is due to the fact that full harmonisation is secured by the regulations setting out provisions on visa decision-making and border crossing. Yet, even in this case Member States ensured that, in certain cases, they are consulted,33 even if the decisionmaking lies within the competence of another Member State. Nonetheless, from time to time certain Schengen States use the possibility of temporarily restoring internal border checks when certain migration trends seem likely to threaten public security. Long-Stay Mobility of Third-Country Nationals Contrary to provisions governing short stays, provisions concerning migration exceeding three months are laid down by directives at Union level, since Member States need certain flexibility to be able to adapt their national provisions to EU rules. This is to take into account their already existing system of residence permits and long-term residence permits which evolved reflecting the Member States’ respective historical background, cultural and economic ties as well as institutional systems. Several directives concerning legal migration lay down, among other rules, the conditions under which these categories of third-country nationals and their family members may reside in a Member State other than the one where they first acquired immigrant status, yet these directives only cover certain groups of third-country national migrants. Consequently, the different directives concerning the legal migration of third-country nationals contain diverging rules on intra-EU mobility, and even if they contain such provisions, not all of these directives set out mobility rights. The First Directives Laying Down Provisions on Mobility According to Council Directive 2003/109/EC on third-country national long-term residents a long-term resident shall acquire the right to reside in the territory of a Member State other than the one which granted him/her the long-term residence status, for a period exceeding three months, provided that the conditions set out in Chapter III are met. The Long-term Residence Directive therefore creates a sui generis status for third-country

32 Regulation (EU) No. 265/2010 of the European Parliament and of the Council of 25 March 2010 amending the Convention Implementing the Schengen Agreement and Regulation (EC) No. 562/2006 as regards movement of persons with a long-stay visa OJ L 85, 31 March 2010, pp. 1-4. 33 Visa Code Art. 22(1) A Member State may require the central authorities of other Member States to consult its central authorities during the examination of applications lodged by nationals of specific third countries or specific categories of such nationals.

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Ágnes TöttŐs nationals choosing long-term migration with rights attached to such strong status, approximating their status to that of nationals of the host Member State. Yet certain aspects of the rules hinder the effective application of mobility rights attached to the EC long-term status. Although there is a preferential route for long-term residents to receive residence status in another Member State, this is subject to certain conditions. The second Member State can actually check almost all the admission criteria. Furthermore, in cases of an economic activity in an employed or self-employed capacity, Member States may even, during the first twelve months, examine the situation of their labour market and apply their national procedures regarding the requirements for, respectively, filling a vacancy, or for exercising such activities. Skordas criticised these provisions very firmly: The LTR Directive cannot, however, be considered a milestone in the European integration process, because, in fact, the Member States have retained substantial authority to regulate the access of long-term residents to their respective labour markets. The Directive is inherently discriminatory because it excludes longterm residents from the Community freedom of the movement of persons in the internal market. Only ‘marginal’ mobility between two Member States is foreseen and even that can be further restricted and regulated by the second Member State utilising various methods, including the application of a quota system. The denial of this economic freedom, which is one of the fundamental pillars upon which the Community is based, deprives immigrants of the opportunity to possess an ‘EU Green Card’. This card would enable immigrants to move freely in the EU in search of work and to participate, on an equal footing with EU citizens, in the various self- organisational structures, networks and entrepreneurial activities that characterise the essence of European integration. The lack of full economic integration of immigrants in the Community is likely to increase their reliance on the welfare safety net of the Member States, which is exactly what the LTR Directive intends to avoid.34 This early critique later on proved to be true, especially if we compare the situation of mobile EU citizens to mobile third-country nationals.35 34 A. Skordas, ‘Leg. dev.: Immigration and the market: the Long-term Residents Directive’, Columbia Journal of European Law (2006), p. 201, www.cjel.net/print/13_1-skordas. 35 European Migration Network study on intra-EU mobility of third-country nationals in 2013 pointed at several obstacles that exist in practice when a long-term resident third-country national practices his/her intra-EU mobility right, as they have to apply for a new residence permit, during the application of which the second Member States apply labour market test, conditions for proving level or resources or housing, and certain Member States even apply integration measures as a second Member State. See EMN synthesis report: Intra-EU Mobility of Third-Country Nationals, 2013, p. 23.

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Furthermore, due to the fact that it only provides mobility for those possessing a longterm resident status after five years of residence in a Member State, this may prove to be disadvantageous in the light of certain national provisions, since, for example, in Finland such a duration of stay already entitles foreigners to apply for citizenship. Furthermore, almost all countries have their parallel national long-term residence permits, and national rules usually offer more preferential conditions of application, especially for certain special groups of migrants. Therefore, many of the long-term migrants choose to apply for national long-term residence permits,36 which, by contrast, do not secure the right to intra-EU mobility. Since student mobility benefits global economic development by promoting the circulation of knowledge and ideas, the mobility of students who are third-country nationals studying in several Member States must be facilitated, as must the admission of thirdcountry nationals participating in Community programmes to promote mobility within and towards the Community.37 Member States should, therefore, facilitate the admission procedure for those third-country nationals who participate in EU programmes, enhancing mobility towards or within the Union.38 In the case of students, the conditions for pursuing a part of their studies or complementing the studies carried out in the first Member State with related courses in another Member State, is governed by Article 8 of Directive 2004/114/EC. According to this, a third-country national who has already been admitted as a student and applies to continue in another Member State a part of the studies already commenced, or to complement them with a related course of study in another Member State is to be admitted by the latter Member State. This should take place within a period that does not hamper the pursuit of the relevant studies, whilst leaving the competent authorities sufficient time to process the application, if the applicant meets both the general and specific conditions set out in the Directive. The Commission in its report39 on the implementation of the Directive revealed a crucial need for amendments to the Directive, especially as regards, among other factors, the strengthening of mobility clauses and the stimulation of synergies with EU programmes that facilitate third country nationals’ mobility into the EU. Mobility provisions concerning researchers are governed by Article 13 of Directive 2005/71/EC. Provided that the researcher stays only up to three months in the second

36 Even if national and EU long-term statuses may be held parallel by a third-country nationals, when deciding about which one to apply as a first (and many times only) long-term residence status, applicants usually value more preferential conditions of national schemes than the intra-EU mobility right attached to the EU long-term resident status. 37 Directive 2004/114/EC Preamble (16). 38 Directive 2004/114/EC Art. 6(2). 39 Report from the Commission to the European Parliament and the Council on the application of Directive 2004/114/EC on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service (COM(2011)0587 final).

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Ágnes TöttŐs Member State, the research may be carried out on the basis of the hosting agreement concluded in the first Member State, yet if the researcher stays longer than 3 months, Member States may require a new hosting agreement. Therefore, the ‘preferential’ provisions for researchers’ mobility rights do not go any further than those of the Schengen mobility rights provided for any category of residence permit holders. The only special condition which it sets out is that no additional hosting agreement is needed in the second Member State. Regardless of how small a step it is towards real intra-EU mobility rights, the report40 of the Commission revealed that mobility provisions of researchers has been incorporated into national legislation by only 17 Member States. In the other Member States national legislation does not explicitly stipulate that researchers who have been issued a permit in another Member State can work in their territory without an additional work permit, which may result in legal uncertainty, hindering even this minor right to intra-EU mobility. The Commission reports, therefore, reveal a crucial need for amendments to the Directives on the migration of students and researchers. Consequently, the European Commission launched its proposal to recast the Directive on the conditions of entry and residence of third-country nationals for the purposes of research, studies, pupil exchange, remunerated and unremunerated training, voluntary service and au pairing.41 This proposal is based on the outcome of a public consultation42 launched online by the Commission, employed to identify gaps as well as to indicate the direction according to which the Commission finally proposed modifications. Articles 26 and 27 of the draft recast directive set out the conditions under which not only researchers and students, but also remunerated trainees can acquire residence rights in a territory of another Member State in a facilitated procedure. In the case of researchers, the period for which they would be allowed to move to a second Member State on the basis of the hosting agreement concluded in the first Member State is proposed to be extended from 3 to 6 months. For students, provisions were introduced in the new proposal that also allow them to move to a second Member State for a period of up to 6 months on the basis of the authorisation granted by the first Member State. Furthermore, specific rules apply to third-country nationals who come under the scope of EU mobility programmes, for example the current Erasmus Mundus or Marie Curie programmes, in order to simplify the exercise of mobility rights. According to Article 28 of the proposal, researchers’ family members can move between Member States accompanying the researcher, in line with the provisions of the Blue Card Directive. 40 Report from the Commission to the Council and the European Parliament on the application of Directive 2005/71/EC on a specific procedure for admitting third-country nationals for the purposes of scientific research COM(2011)0901 final. 41 Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals for the purposes of research, studies, pupil exchange, remunerated and unremunerated training, voluntary service and au pairing [Recast] (COM(2013)0151 final – COD(2013)0081). 42 http://ec.europa.eu/dgs/home-affairs/what-is-new/public-consultation/2012/consulting_0024_en.htm.

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Mobility Provisions of Migrant Workers One of the objectives of Directive 2009/50/EC on the EU Blue Card (created specifically for highly skilled migrants) is to ensure their mobility between the Member States. According to Chapter V of the Directive, after eighteen months of legal residence in the first Member State as an EU Blue Card holder, the person concerned and his family members may move to a Member State other than the first Member State for the purpose of highly qualified employment. Yet, even in the case of the preferred highly skilled migrants, mobility provisions are far removed from the ambit of mutual recognition. As soon as possible, but no later than one month after entering the territory of the second Member State, the EU Blue Card holder and/or his employer must present an application for an EU Blue Card to the competent authority of the second Member State. All documents proving the fulfilment of the conditions set out in Article 5 in relation to the second Member State must also be presented. The second Member State may decide, in accordance with its respective national law, not to allow the applicant to work until a positive decision on the application has been taken by its competent authority. This may be evaluated rather simplistically as: Significantly, after a stay of eighteen months in one EU country, under certain conditions a Blue Card holder may travel to another country to seek employment without going through the usual national procedures for admission.43 However, is it really true that it is a significant step forward? Collett perceives the situation more realistically by stating: The Blue Card scheme, proposed in late 2007 amid much fanfare, is intended to help the EU win the ‘global battle for talent’. But what does it offer the potential high-flier from outside the EU? The short answer is: not as much as it could.44 Can we talk about mutual recognition or any preferential treatment in respect of the admission criteria based on the very fact that the third-country national already possess an EU Blue Card in one of the Member States? Not really. Gyeney says points out that instead of following the original concept and creating one single document that would be valid in all the Member States, providing the right to stay and work, the Directive basically

43 Boswell and Geddes, supra note 1, p. 95. 44 E. Collett, ‘Blue Card and the “Global Battle for Talent”’, EPC Commentary, 28 May 2009, p. 1.

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Ágnes TöttŐs sets out the provisions for issuing a second Blue Card in the discretion of a second Member State.45 Therefore, the simple truth is that the second Member State can – literally – check every single criterion for admission once again. Furthermore, as long as recognition of qualifications, salary levels and labour demand continue to vary so greatly between Member States, the right of mobility offered under the Blue Card scheme will remain insubstantial in real terms.46 On an even more pessimistic note, one might even say that the EU Blue Card not only not stipulates intra-EU mobility of highly skilled migrants, but even forbids it in the first 18 months of stay. On the other hand, holding a residence permit issued according to a Member State’s national admission scheme does not forbid its holder to apply for another residence permit in a second Member State at any time. It is, of course, true that in this case, the years spent separately in the different Member States cannot be added together when applying for EU long-term residence status. What do the mobility provisions of the EU Blue Card Directive actually entail? What they really provide, apart from preferential rules for gaining EU long-term residence, is the possibility to submit an application from the territory of the EU, either from the first or from the second Member State. Not only the second admission procedure, but also certain circumstances in the first Member State actually function as obstacles to gaining the first EU Blue Card and, accordingly, to exercising mobility rights in a second Member State. In countries with a weak economic situation, the salary threshold which all Member States are obliged to apply in the case of Blue Card holders can be considered to be so high that highly qualified thirdcountry nationals can rarely fulfill this admission condition. In other Member States, it can be the parallel national status which hinders the use of the EU Blue Card scheme, just as in the case of an EU long-term residence permit. If national schemes for highly qualified migrants offer more preferential rules, third-country nationals might finally choose not to apply for an EU Blue Card and will not be afforded mobility rights either. The system is, therefore, complementary: it does not replace Member States’ own schemes for attracting high-skilled workers, or prevent them from offering more advantageous terms of entry on a national basis. This was a key issue in the negotiations, and reflects

45 L. Gyeney, ‘Jó lépés, jó irányba? A Tanács 2009/50/EK irányelve a harmadik országbeli állampolgárok maga szintű képzettséget igénylő munkavállalás céljából való belépésének és tartózkodásának feltételeiről’, VII(1) IustumAequumSalutare (2011), p. 79. 46 Collett, supra note 44, p. 2.

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the fact that EU Member States are increasingly competing against each other for the most talented workers.47 Even if an EU Blue Card is submitted in the first Member State, the condition for exercising intra-EU mobility rights is that an 18-month period should elapse before doing so. Unfortunately, many of the Member States failed to transpose the Directive in time and this resulted in a high number of non-notification infringement procedures initiated by the Commission. A further result was also that, in these ‘lazy’ Member States, migrants were deprived of the right to apply for an EU Blue Card immediately after the transposition deadline (19 June 2011) of the Directive. This meant that calculating the 18 month period and also exercising the mobility rights, commenced later. Consequently the question arises: can a migrant be derived of his/her right to exercise mobility rights because of the late transposition of the Directive in certain Member States? If we say that the migrant had fulfilled the admission criteria and would thus have been granted an EU Blue Card in due time, the second Member State must still face the question who decides whether that migrant actually fulfilled all the criteria – including the labour market assessment – or did not pose a threat to public order? Sánchez emphasizes that ‘this situation is likely to change with the Reform Treaty, which has followed the path opened by the Charter of fundamental rights. Although it could be regarded as an insignificant amendment in the wording, the fact that the Article 79 of the Treaty on the Functioning of the European Union refers expressly to the ‘conditions governing freedom of movement and of residence in other Member States’, might have an impact in the margin of appreciation to develop this legal basis. Indeed, the explicit reference to free movement establishes a direct link with the dynamics of the internal market.’48 Two new Directives have recently been adopted, with implications for two categories of third-country nationals, namely the intra-corporate transferees and seasonal workers. The latter is not intended to set out provisions on mobility, since it covers only short-term migration of third-country nationals. The proposal for a Directive on intra-corporate transferees foresaw geographical mobility for intra-corporate transferees49 (ICTs) in accordance with Mode 4 of the World Trade Organisation’s General Agreement on Trade in Services (GATS). The idea behind the new proposal was that managers and experts of multi-national companies, who possess unique knowledge and therefore are exempted from the labour market test for their 47 Collett, supra note 44, p. 1. 48 S. Iglesias Sánchez, ‘Free movement of Third Country Nationals in the European Union? Main Features, Deficiencies and Challenges of the New Mobility Rights in the Area of Freedom, Security and Justice’, 15(6) European Law Journal (2009), p. 797. 49 Proposal for a Directive of the European Parliament and of the Council on conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer (COM(2010)0378 final – COD(2010)0209).

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Ágnes TöttŐs admission to the national labour markets, should be provided with a specific set of admission criteria and rights including the right of intra-EU mobility. Under the Directive, intra-corporate transferees would be allowed to work in different entities of the same transnational corporation located in different Member States and this category of thirdcountry national would have the right to reside and work in one or more second Member States on the basis of a residence permit obtained in the first Member State, as long as the duration of the transfer does not exceed twelve months. The proposal of the Commission revealed only a few procedural rules on how decisionmaking concerning the ICT permit that is meant to provide a real mobility right within twelve months is supposed to take place. According to the proposal, the applicant would submit to the competent authority of the second Member State(s), before his or her transfer to that Member State, the documents relating to the transfer to that Member State and provide evidence of such submission to the first Member State. Apart from the fact that this envisaged procedure seemed rather cumbersome, the proposal did not deal with the question of what the role of the second Member State would be in this procedure other than receiving the documents submitted. Furthermore, it did not provide for the division of competences between the first and the (at times several) second Member States concerned in case of an ICT entrusted with work to be carried out in several Member States even within twelve months. Therefore, the negotiations in the Council’s relevant Working Party led to Member States opposing such vague rules. They took into account practical aspects and used the already existing mobility schemes to formulate a tailor-made scheme for intra-corporate transferees. This unique scheme consists of, firstly, the short-term scheme (which is close to mutual recognition as set out by the Schengen rules) and the Directive for stays in another Member State not exceeding 90 days in any 180-day period in each second Member State, and, secondly, the long-term mobility scheme (basically, the EU Blue Card scheme in which the second Member State can actually recheck all the admission criteria) if the stay exceeds 90 days in the second Member State concerned. As a concluding remark it can be stated that the Member States would be reluctant to use the tool of mutual recognition of decisions in residence permit cases and would only accept the mobility rights laid down by the already existing mobility provisions scattered in the different EU legislative acts on migration. This tailor-made complexity of rules is also unique in a way that it creates an autonomous intra-EU mobility scheme since an Annex was also attached to the Directive in the course of its adoption. In a joint statement the European Parliament, the Council and the Commission acknowledged the fact that this new Directive on intra-corporate transferees establishes an autonomous mobility scheme providing for specific rules, adopted on the basis of points (a) and (b) of Article 79(2) TFEU, regarding the conditions of entry, stay and free movement of a third-country national for the purpose of work as an intra-

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corporate transferee in Member States other than the one that issued the intra-corporate transferee permit, which are to be considered as a lex specialis with respect to the Schengen acquis. The autonomous nature of it therefore lies in the fact that in order to provide for an effective and preferential mobility scheme for intra-corporate transferees, visa-free entry and stay shall be provided in any second Member State even for those ICTs that hold an ICT permit issued by a Member State not applying the Schengen acquis in full, and the short stay of 90 days within any 180-day period shall be provided for in all the second Member States to which the ICT is further transferred. Nevertheless, taking into account the complexity of such newly introduced rules and consequently the envisaged challenges of their practical application, the Parliament and the Council also take note of the Commission’s intention to examine whether any action needs to be taken in order to enhance legal certainty as regards the interaction between the two legal regimes, namely the ICT Directive and the Schengen acquis, and in particular to examine the need for updating the Schengen Handbook.

22.3.3

Obstacles to Labour Migration

Labour migration can be one of the potentially important means to solve the problem of the EU’s ageing population and the increased demand for certain types of skills, even though the global economic downturn has impacted on the demand for labour across the EU.50 Yet, besides the specific mobility rights provided to certain categories of thirdcountry nationals under the EU’s migration Directives described above, the EU acquis contains a number of additional provisions which may affect the migrant’s decision to reside in another Member State, especially if their purpose is to enter a Member State’s labour market. The most recently transposed directive on the EU Blue Card also sets out that ‘it is also necessary to take into account the priorities, labour market needs and reception capacities of the Member States.’51 Member States also enjoy discretion as regards regulating access to the labour market. All Member States make use of specific approaches to identify and manage labour demand, by using a combination of tools. These include drawing up occupation lists, analysing employer needs on a case-by-case basis, that is labour market tests and the setting of quotas or limits.52

50 Section 6 of Stockholm Programme, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri= OJ:C:2010:115:0001:0038:EN:PDF. 51 Directive 2009/50/EC Preamble (7). 52 EMN Synthesis report: Satisfying labour demand through migration, 2011, p. 53, www.statewatch.org/news/ 2012/feb/ep-study-labour-demand-and-migration.pdf.

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Ágnes TöttŐs Volumes of Admission Managing access to national labour markets is a Member State competence, entailing for instance, that Member States have the right to determine the number of immigrants entering their territory for the purpose of employment. This right is even set out in primary law since the Lisbon Treaty, namely in Article 79(5) of the TFEU. This affirms that this Article shall not affect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed. As such, it only refers to migrants who arrive from outside the EU and not those already exercising their mobility rights. Consequently, as primary EU law remains silent on volumes of admissions or quotas applied to third-country nationals arriving from another Member State, this area of legislation still belongs to the field of shared competence, meaning that as long as EU law does not harmonise this field, Member States remain free to act according to their preferences. Even in the field covered by primary law related to volumes of admission there are further questions that have been raised. It has been much debated in what ways Member States are free to determine quotas. While the EU Blue Card Directive (2009/50/EC) sets out detailed provisions on the application of quotas and allows Member States to determine them by differentiating between migrants in many ways and even applying zero quotas, at the time of its adoption there was no provision in the primary legislation setting out the right of the Member States regarding volumes of admission. However, since the adoption of the TFEU, Article 79(5) acknowledges this right preserving it as a national competence. EU law cannot regulate matters that belong to national competence, it is up to the Member States to decide how they implement at national level the notion of ‘volumes of admission’, even if it is an autonomous term of the Union law that should therefore be interpreted in a harmonized way. Nevertheless, it should be borne in mind that certain universal principles laid down in international agreements can have an effect on the application of this right. As a result it is up to the Member States to decide on the actual implementation of the volumes at national level, however, Member States should bear the consequences of failing to meet the international standards, especially international and EU rules prohibiting discrimination, as well as the requirement of not jeopardizing the purpose of the EU law, as applying zero quotas may have this unintended outcome. It was also disputed whether the exhaustion of quotas would result in considering an application inadmissible, or whether it would be the basis for rejection. It was also suggested during the debates in the Council’s Working Party to have both kinds of provisions in the text of the debated directive as considering an application inadmissible would be applied in case the overall quotas are exhausted and the application in question is left unchecked

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by the relevant authorities, while e.g. as for quotas valid for certain sectors authorities should first take a closer look at the application and only while adjudicating the application can they arrive at the conclusion that the specific application falls under the field where the quotas are already exhausted and therefore the application can no longer be considered inadmissible but would be rejected as the actual adjudication has already started. As for the application of quotas not only the differences between the practices of Member States concerning their use of volumes and quotas remain an issue for further elaboration.53 It is still up to the representatives of the legislative institutions of the EU to agree upon how quotas or volumes of admission could be used when renewing or extending a residence permit or when granting admission to a second Member State, as such issues are not covered by primary law provisions on volumes of admission, therefore it could emerge as a point of discussion and compromise in the case of every single newly negotiated directive. Union Preference and the Use of Labour Market Test Based on Council Resolution of 20 June 1994 on limitation on admission of third-country nationals to the territory of the Member States for employment,54 Member States are allowed to consider requests for admission to their territories for the purpose of employment only where vacancies in a Member State cannot be filled by national and Community manpower or by non-Community manpower lawfully resident on a permanent basis in that Member State and already forming part of the Member State’s regular labour market. Yet, the principles set out in this Council Resolution are not legally binding for the Member States and do not afford grounds for action by individual workers or employers. Nevertheless, principles laid down as a result of the Council having recognized that the then high levels of unemployment in the Member States require appropriate measures, are presently applied by many of the Member States,55 carrying out labour market tests upon the basis of this principle. This general Union employment preference is not to be confused with the principle of preference for Union citizens set out by the Treaty of Accession, which is strictly related

53 The European Migration Network Inform about the different interpretations and use of quotas in the different Member States: http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration_network/ reports/docs/emn-studies/emn-informs/emn_inform_application_of_quotas_en_version_final.pdf. 54 OJ C 276, 19 September 1996, p. 3. 55 The European Migration Network is presently summarizing the practices of Member States on the application of labour market test.

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Ágnes TöttŐs to the transitional periods during which the ‘old’ Member States at the period of accession may maintain some restrictions regarding the access to their labour market by workers of the new Member State(s). Recent case-law56 also dealt with both principles and stated that the second subparagraph of that paragraph57 enshrines the principle of preference for citizens of the European Union, pursuant to which the Member States are required, with the exception of measures taken during the transition period, to give preference, for access to their labour markets, to nationals of the Member States over workers who are nationals of third countries.58 The so-called ‘principle of preference for citizens of the European Union’ therefore generally applies, if the relevant Member State decides to apply it, except for citizens of the newly joined Member States during the transition period immediately after the new accessions. The basic procedure for the issuance of a work permit is also outlined in this Council Resolution: ‘third-country nationals may, if necessary, be admitted on a temporary basis and for a specific duration to the territory of a Member State for the purpose of employment where: such an offer is made to a named worker or named employee of a service provider and is of a special nature in view of the requirement of specialist qualifications (professional qualifications, experience, etc.);59 an employer offers named workers vacancies only where the competent authorities consider, if appropriate, that the grounds adduced by the employer, including the nature of the qualifications required, are justified in view of a temporary manpower shortage on the national or Community labour market which significantly affects the operation of the undertaking or the employer himself.’ Both the creation of occupation lists, as well as the more direct case-by-case assessment of employer needs may be perceived as a form of labour market situation analysis. As a result, we may say that there is no single labour market, for even those who have gained residence rights in one Member State will have to face labour market tests when trying to move within the territory of the EU. Wiesbrock, therefore, argues that,

56 Case C-15/11, judgment of the Court (Fourth Chamber) of 21 June 2012 – Leopold Sommer v. Landesgeschäftsstelle des Arbeitsmarktservice Wien, OJ C 250, 18 August 2012, p. 4. 57 Para. 14 of that Point 1 of Annex VI to the Admission Protocol of the Treaty between the Member States of the European Union and the Republic of Bulgaria and Romania, concerning the accession of the Republic of Bulgaria and Romania to the European Union. 58 Sommer case, Para. 33. 59 Although Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State sets out single application procedure without allowing for a separate work permit to be issued, the employment aspects of the application are still usually considered according to such rules, yet the decisionmaking is done within the single application procedure.

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by subjecting third-country nationals to numerous nationally determined requirements, the very raison d’être of the mobility provisions is undermined. Rather than enjoying free-movement rights on the basis of a status acquired under Union law, third-country nationals continue to be subject to national discretion when intending to move to another Member State.60

22.4

Conclusions

The crisis seems to have led to a more cautious approach on behalf of Member States. Therefore the priorities and needs produce the various tools which serve the special interests of Member States, e.g. the protection of labour opportunities for their own nationals. ‘In this context, it is not surprising that a key paradox persists within the EU: skills shortages and bottlenecks coexist with areas of persistent high unemployment. Differing levels of economic growth and employment create simultaneous shortages and excesses of labour across Europe, which is due in part to heavily regulated labour markets and low labour market mobility. For this reason releasing the potential of labour mobility is one of the key issues in the Lisbon process and the European Employment Strategy. The Integrated Guidelines for Growth and Employment (2005-2008)61 calls upon Member States to improve the matching of labour market needs through the modernisation and strengthening of labour market institutions, […] removing obstacles to mobility for workers across Europe within the framework of the EU treaties.62 Legal experts of governments working with legal migration issues therefore easily find themselves in a situation where they are not only requested to act according to the economic and political interests of their Member State but also to find a solution, which can equally serve the common good of the European Union. All the legal aspects of these crucial issues seem to bring up innumerable legal questions as the harmonization extends to further groups of migrants. Getting close to the point when the Stockholm Program shall be superseded by the next political program, the question is whether legal experts should continue dealing with the legal questions generated mostly by the selective method of harmonizing legal migration at a European level, or should the post-Stockholm processes take a different direction and

60 Wiesbrock, supra note 27, p. 455. 61 Council Decision 2005/600/EC of 12 July 2005 on guidelines for the employment policies of the Member States, OJ L 205, 6 August 2005, pp. 21-27. 62 www.iza.org/en/webcontent/publications/reports/report_pdfs/iza_report_19.pdf.

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Ágnes TöttŐs consider the presently followed path to be outdated, since it seems to receive more critique than appreciation.63 ‘The current legislation lacks the flexibility required to address the realities of the modern labour market.’64 It is true that other provisions within the EU acquis may also influence migrants’ decisions, such as the portability of social security rights65 and the recognition of degrees and diplomas.66 As for directives on legal migration it is clearly the adoption of less bureaucratic and less burdensome admission rules and providing rights close to those of Union citizens including real mobility rights that are set out as goals to be achieved. Therefore the status quo is not an option. With growth, and more Europeans in more productive jobs, we can achieve the outcomes which meet Europeans’ expectations and values. By acting in the areas that matter most, we can advance European integration. Growth and jobs is a truly European agenda.67 In its Communication68 the Commission envisaged not only an evaluation of current legislation on legal migration that would help identifying prevailing gaps, improving consistency and assessing the impact of the existing framework, but also proposed further steps to be taken in order to codify and streamline the substantive conditions for admission, as well as of the rights of third-country nationals. In the Commission’s view this would be a step towards a ‘single area of migration’, with the aim of facilitating intra-EU mobility of third country nationals, through mutual recognition of national permits. Yet, in the present situation where Member States face the task of transposing two new Directives, while still trying to manage the procedural reforms brought about by the 2011/98/EU Single Permit Directive, I doubt that Member States would be too willing to promote this vision put forward by the Commission. Instead they might just put their efforts into implementing 63 The word ‘old-fashioned’ for characterising the present situation was even used by director General Stefano Manservisi (EU dG of Home Affairs) in his opening presentation at Metropolis 2013 conference. 64 Collett, supra note 44, p. 2. 65 The social security rights of mobile third-country nationals are regulated by Council Regulation 1231/2010 which extended EU social security coordination regulations to third-country nationals. 66 The migration Directives 2011/98/EU (Single Permit), 2009/50/EC (Blue Card), 2003/109/EC (Long Term Residents) and 2004/114/EC (Researchers) all provide for equal treatment in regard to the recognition of diplomas. This right to equal treatment makes Directive 2005/36/EU (plus later amendments on the recognition of professional qualifications) applicable to third-country nationals in two situations: when moving to a second Member State and seeking recognition for a diploma acquired outside the EU but recognised in the first Member State; and, more generally, if they have EU qualifications. 67 Commission Communication on European Values in a Globalised World, at 3, COM(2005)525 final/2 (March 1, 2005). 68 Communication from the Commission to the European Parliament, the council, the European Economic and Social Committee and the Committee of the Regions, An open and secure Europe: making it happen (COM(2014)0154 final).

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existing EU rules on admission of migrants and on their rights in an effective and, as it is urged by the Commission and the Court of Justice, coherent way by all Member States.

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23

European Dilemmas of Family Reunification

Szigeti Borbála*

23.1

Introduction

Since the amendments brought about by the Amsterdam Treaty, the EU can legislate on immigration. The very first rules adopted on the basis of this extended EU competence (‘common immigration policy’) concerned family reunification.1 This Directive regulates the ways and means for non-EU citizens already established in the territory of the European Union (’sponsors’) to (re)unite with their family members who are equally non-EU citizens. The Directive has been heavily criticised by academics and civil society who consider it too vague and toothless with its many ‘may clauses’, claiming that it leaves too much discretion in the hands of the EU Member States in designing their respective national family reunification policies. While these arguments may have some merit, it must also be recognized that the Directive goes way beyond any pre-existing counterpart; in particular the Strasbourg human rights instrument, ‘the right to family life’ enshrined in Article 8 of the European Convention of Human rights. There, the underlying principle according to the Strasbourg European Court of Human Rights is that ‘a State has the right to control the entry of nonnationals into its territory’, therefore ‘Article 8 cannot be considered to impose on a State a general obligation to respect the choice (of residence) by married couples and to authorise family reunion in its territory.’

23.2

Family Reunification under Union Law

Under Strasbourg logic, the balance between the human right to family life on the one hand, and the national competence to manage migration flows on the other, is drawn on a case by case basis and decided on the basis of numerous factors (e.g., rupture of family life, the social ties in the countries of origin and destination, considerations of public order * 1

European Commission Directorate-General Home Affairs, Unit 02 – International Affairs. E-mail: [email protected]. Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification. OJ L 251, 3 October 2003, pp. 12-18.

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as well as factors of immigration control, such as earlier breaches of immigration law). The EU context is substantially different. EU law draws a direct correlation between the right to family life on the one hand, and family reunification as an immigration (admission) procedure to a Member State on the other, by stating that ‘family reunification is a necessary way of making family life possible’. Therefore, the Directive actually recognises the existence of a right to family reunification. The relevant case-law of the European Court of Justice reinforces this right,2 stating that the Directive imposes a precise positive obligation on Member States, requiring them in cases determined by the Directive to authorise family reunification of certain members of the sponsor’s family. Why is it then that many still consider the Directive to be vague and controversial? The answer is simple: the right of family reunification is certainly not without limits, but to be exercised with certain conditions under the Directive. These conditions are: accommodation, sickness insurance, stable and regular resources, integration measures, waiting period, minimum age and the fee of the application procedure. These are optional conditions Member States are free to set, and the limits to these conditions are not clearly drawn by the Directive. As a result, the extent of these conditions lies at the heart of European family reunification policy. One condition was not listed: quotas, as they are not allowed because of the basic concept of recognising a right to family reunification as opposed to other parts of the world (New Zealand, Canada etc.) where quotas are allowed. Article 79(5) of the EU Treaty guarantees the Member State’s right to determine the volumes of admission of non-EU citizens seeking work, but Member States cannot determine the volumes of admission of these citizens’ family members (spouse and children) and must admit them if some ‘basic conditions’ (accommodation, sickness insurance, stable and regular resources, integration measures, waiting period and grounds of public order, security and health) are met. Soon after the adoption of the Directive, discussions started at Member States level to find ways to ‘manage more effectively’ (in the absence of quotas, but in view of the effects of the economic crisis, and a more negative public perception) the inflow of migrants under family reunification. Some Member States introduced specific measures to put in place more control and filtering (Germany and the Netherlands). France, under its Presidency in 2008 attempted to bring this issue back to the European level. A legally nonbinding document, the European Pact on Immigration and Asylum was endorsed by the Council which calls ‘for a more effective regulation of family migration taking into consideration reception capacities of Member States’.

2

Case 540/03, European Parliament v. Council of the European Union [2006] ECR I-05769.

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Member States cannot be ‘blamed’. The provisions of the Directive as far as the conditions are concerned are vague, therefore, certain Member States sought to stretch the limits with the aim of maintaining some national control over family migration. What happened at EU level? The Stockholm Programme, the last multiannual programme on justice, freedom and security for the period 2010-2014, still called upon the Commission to ‘review, where necessary, the Family Reunification Directive, taking into account the importance of integration measures.’ In the meantime, the legal landscape had changed. With the entry into force of the Lisbon Treaty, legal migration, including family migration, became an area covered by codecision (with a more powerful European Parliament) and the decision-making procedure in the Council also changed from unanimity to qualified majority. These two factors were also essential in respect of the mandate to review the Directive. A deadlock could be predicted between a pro-human rights European Parliament and the Council striving for more margin of manoeuvre. And, in light of the qualified majority voting in the Council, a split among the Member States with very different family migration approaches was also to be expected. Under the circumstances, the Commission initiated an EU level debate in the form of a Green paper and a subsequent public hearing in 2012. The outcome confirmed that neither the Member States (except for the Netherlands), nor the NGOs/social partners/academia wanted to change the existing legal rules. Instead, some asked for a more determined implementation policy. As a follow-up, non-binding guidelines were recently introduced in 3 April 2014 by the European Commission in further detail with the aim of helping to interpret the provisions of the Directive. Therefore it has been, and still is, up to the European Court of Justice to provide additional legal clarity to some of the basic questions of European family reunification rules. To date, there are only a small number of such cases, mainly preliminary rulings. As analysed above, not being allowed to set quotas, other ways of keeping control on the admission of family members was sought of in some Member States. The European Court of Justice however seems to clearly set the limit to these attempts, delimiting Member States’ possibilities in this regard:

23.2.1

Fees

Starting with a procedural aspect, fees are normally required for processing an application. Fees are not regulated specifically in the Directive, therefore, positive law does not guide

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Szigeti Borbála the Member States. However in an analogical infringement case3 initiated by the Commission against the Netherlands in relation to the EU Long-term resident Directive,4 the European Court of Justice found that in accordance with the general principles of EU law such fees should not be excessive and disproportionate to an extent as to discourage application for EU long-term resident status. This ruling can easily be used as an analogy for family reunification, given that in this context there is a conferred right to family reunification, where excessive fees could create an additional non-admissible condition and therefore an obstacle to the exercise of said right. To give an impression of the magnitude of these fees, it may be mentioned that for example the fees for family reunification were 800 EUR in the Netherlands.

23.2.2

Financial Conditions

A substantive condition, specifically referred to in the Directive is the possibility to require stable and regular financial resources for exercising the right to family reunification. There are some reference points in the Directive, when checking whether these rules (if applied in the Member States) are satisfied, such as minimum national wage and pensions or the number of family members, as well as the absence of a recourse to the social assistance system (Article 7(1)c). A very important preliminary judgment of the European Court of Justice5 further clarified the above rules and confirmed the principle, that the authorisation of family reunification is the general rule. Therefore, the Member States’ possibility to require proof of certain financial means must be applied restrictively way and this margin of manoeuvre must not be used in a manner which undermines the objective of the Directive.

23.2.3

Minimum Age

Another possibility is for Member States to require a minimum age (not more than 21 years), before the family member can join the sponsor: Such a minimum age can be set and applied only in order to ensure better integration and to prevent forced marriages (Article 4(5)). The directive does not, however, specify the point at which the sponsor and his or her spouse must have reached that minimum age limit. There is also a relevant preliminary ruling pending6 which may clarify this issue based on an Austrian case. In

3 4 5 6

Case C-508/10 European Commission v. Kingdom of the Netherlands [2012] not yet published. Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents. OJ L 16, 23 January 2004, pp. 44-53. Case C-578/08 Rhimou Chakroun v. Minister van Buitenlandse Zaken [2010] ECR I-01839. Case C-338/13 Marjan Noorzia v. Bundesministerin für Inneres [2014] not yet published.

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Austria, the spouse must necessarily have reached the minimum age of 21 at the time the application for family reunification is submitted. In his very recent opinion of 30 April 2014, the Advocate-General found7 that it is contrary to the general principles and the objective of this provision to require that the minimum age already be reached at the time of the application, in case the age limit will be reached by the time the authorities’ decision is adopted. The European Commission, in its guidelines (COM(2014)210), goes even beyond this interpretation and argues for the need for an individual assessment and the possibiliy of making exceptions to the rule, if it is evident from the facts of the case that there is no forced marriage or abuse in the case (e.g.: children in common).

23.3

Language Tests

The most politicised and mediatised optional substantive competence of the Directive is the possibility of the Member States to require third-country nationals to comply with integration measures. These can take place pre-departure, or upon admission. The controversial ones are those applied before admission of the family member. What are these measures? Typically a language test (such as the one in Germany) or a language test coupled with knowledge on the destination country (such as the one applied in the Netherlands). NGOs and scholars have questioned the compatibility of these provisions on predeparture language/country knowledge testing, claiming that these measures do not comply with the general principles of EU law and the main objective of the Directive. What does the European Commission say? In its Implementation report on the Directive (COM(2008)610) the Commission already noted that the admissibility of these tests depends on whether they genuinely serve the purpose of facilitating the integration process of family members or used as a filter and whether they respect the principle of proportionality. Their admissibility can be questioned on the basis of the accessibility of such courses or tests, how they are designed and/or organised (test materials, fees, venue, etc.). In its guidelines (COM(2014)210) the Commission goes further, pointing out the choice of word in the Directive, which uses the term ‘measure’ in Article 7(2) and not the ‘condition’, which is only allowed in a specific case.8 This difference of wording implies a difference in interpretation: while integration

7

8

The Advocate-General’s Opinion is not binding on the Court of Justice. It is the role of the AdvocatesGeneral to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. Art. 4 – as a stand still clause only – allows Member States to verify for children over twelve years arriving independently of the rest of their families whether they meet a condition for integration.

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measures would require the third-country national to make a certain effort to demonstrate the willingness to integrate, such as attending a course, integration conditions would require the third-country national to perform at a certain level, or to achieve a certain result, such as passing an examination or a test. In addition the Commission guidelines argue for a hardship clause to take into account specific individual circumstances (e.g.: lower literacy, inaccessibility of teaching facilities) and make exceptions to the general rule on this basis. What does the Court say? The European Court of Justice did not rule on this issue yet. Although two preliminary rulings have been initiated already, the solutions found by the given Member States for the specific cases resulted in the withdrawal of the cases. In the (Dutch) Imran case9 a residence permit was issued at the very last moment right before the court could rule. A similar situation occurred in the (German) Ayalti case10 which was also deleted by the court in 2013. The Imran case was well selected as it duly presented the need for an individual assessment. Bibi Mohammad Imran – an Afghani mother – applied to join her husband in the Netherlands. They have eight children who joined their father in the Netherlands whereas Mrs. Imran was denied entry by the Dutch authorities on the sole grounds of not passing the Dutch civic integration exam, which she took abroad. Other conditions (such as accommodation, stable and regular resources, public health, security etc.) of family reunification have been fulfilled. She provided evidence of her situation; a medical document stating chronic depression and the fact that there is no teaching material in her language. She also insisted on the fact that her children cannot be properly integrated in the Netherlands without her; on the contrary, they needed to be placed under supervision of the state child welfare system due to their threatened social, emotional, cognitive and physical development in the absence of their mother. In the Netherlands, the national law did foresee some structural exceptions from the obligation to take the exam (‘a hardship clause’), but it was rather restrictive, providing for a closed list of exemptions for refugees, minor children below the age of 16, persons who have reached the age 65, those who are permanently unable to pass an integration exam on the ground of physical or mental disability and applicants from certain countries (Suriname, Australia, Canada, US, New Zealand, Japan and South Korea). However, as mentioned above – at one point, before the European Court’s judgment could have been issued – the Netherlands (for unknown reasons, perhaps fearing a nonfavourable decision) decided to grant a residence permit to Mrs Imran, thus, the request

9 Case C-155/11 Mohammed Imran v. Minister van Buitenlandse Zaken [2011] ECR I-5095. 10 Case C-513/12 Aslihan Nazli Ayalti v. Federal Republic of Germany.

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for preliminary ruling was withdrawn, and the question on the admissibility and limits of a languages exam remained open. The possibility of achieving more clarity with the help of the Court has emerged yet again. There is a case currently pending before the European Court of Justice, based on a question from a German court. In this Dogan case11 a family member of a Turkish national has to prove – before entry – that he fulfils the language requirement. Given the fact that he is a Turkish national, the case has two aspects: (a) is the language requirement in compliance with the standstill clauses of the Association Agreement with Turkey, and (b) is the language requirement in compliance with the Family Reunification Directive. While the Court of Justice Union European has not yet brought its judgment, the Advocate-General’s opinion was issued on 30 April 2014. Advocate-General Mengozzi found that the Directive precludes a Member State from making the right of entry to Germany for the spouse conditional on the demonstration of the basic knowledge of the German language in case the national rules do not allow for exemptions on the basis of individual assessment. It is to yet to be seen, how the case will be adjudicated, however, on the basis of the jurisprudence related to other provisions of the Directive, the following can be said. Article 7(2) of the Directive on family reunification enables Member States to apply an integration test as a requirement to exercise the right to family reunification and be admitted to a Member State on that basis. However, this possibility of the Member States to introduce such a requirement should be constructed in a way which serves the purpose of facilitating the integration process of family members and fulfils the other obligations set forth under the Directive and the general principles of EU law. Therefore, provisions regarding the obligation to pass an exam should be applied flexibly and the national authorities should assess the applications on a case-by-case basis. This must be done in accordance with Article 5 of the Directive, taking into account the best interests of minor children, and in accordance with Article 17 of the Directive taking due account of the specificities of each case, in particular the nature of the family relationship. In accordance with the principle of proportionality, the integration measures taken must not be more than what is necessary to achieve their aim, i.e. to facilitate the integration process of family members. In addition, such integration exams must be constructed in a way that serves the purpose of facilitating the integration process of family members. Decisions on the application for family reunification in relation to passing such a test should take into account whether there are available facilities (translated materials, courses) to prepare for them. Specific individual circumstances (such as proven illiteracy, medical conditions) should also be 11 Case C-138/13 Naime Dogan v. Federal Republic of Germany [2014] not yet published.

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taken into account. Otherwise these tests can have the effect of preventing family reunification and used as a means of immigration control. Finally, the exemption of certain nationalities from the obligation to pass such a test should be duly justified12 demonstrating the relevance of the exemption to the objective (successful integration) in order not to be discriminative on the basis of nationality or indirectly on the basis of race.

23.4

Conclusions

In conclusion, it can be confirmed that the European Court of Justice seems to consequently argue that the possible conditions, requirements to family reunification as stipulated by the Directive cannot be applied in a way which goes against the general principles of EU law, (proportionality, effet utile of the Directive) and they should not have an effect which prevents family reunification, used as a means of immigration control serving a certain ‘filtering purpose’. Therefore, in the absence of an alternative control or filtering mechanism, Member States, who wish to cut down on family migration will have the choice to further restrict their economic migration policies, resulting also in less admissions on the basis of family reunification. This choice however can result in structural labour shortages in certain sectors. The other option is to work on the public perception of migration in parallel with stepping up efforts for better integration of migrants living in the Member States.

12 E.g.: the memorandum of information to the Dutch national bill on integration measures explains the exemption of nationals from Western countries as follows: ‘because they come from countries which are comparable with European countries, do not result in unwanted and unlimited immigration flows to the Netherlands and significant problems with integration in Dutch society.’

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The Myths We Built around EU Consumer Law

Tamas Dezso Ziegler*

24.1

Introduction

EU consumer law is an area that has gone down its own, independent path for several decades. It has its own approach, separate institutions and autonomous principles. Several of its basic ‘values’ were not previously present in the legal systems of the Member States (hereinafter referred to as: MSs), or, if they did exist, they did so in divergent form. Nowadays there seems to be wide acceptance of EU consumer law among academics, especially in continental Europe. Furthermore, there is strong support for the principles of such legislation: its central purpose as well as the methods it uses to protect the ‘vulnerable’ consumer. Because of its recognition, concerns are rarely raised regarding the existing material – not even by UK scholars, whose old contract law approach would make it understandable to raise issues. I am certain that a large part of the European academic community is aware that the premises used to build the current system were based on shaky foundations. Questions like ‘Is this set of sources really followed in practice?’, ‘shouldn’t we protect the consumer in a different way?’ or ‘Is the consumer truly vulnerable at all?’ are rarely asked. And if so, we receive two kinds of untruthful answers regarding the nature of EU consumer law. Firstly, scholars and legislators state that ‘we all know the system and several of its solutions often function in an unfortunate way, but there is nothing new, interesting or worthy of research in this area’. According to this argument, the malfunctions of the system are inherent attributes of EU consumer law. Secondly, as another good example of misrepresenting the facts, they will state that the system is ‘still useful for consumers, even if some of its basic solutions are not ideal’. However, both answers are wrong. There are problems we need to tackle in order to modernise and/or change the system into a new one that better serves our purposes. And a better system could certainly be built. Numerous groups have done an excellent job of collecting the existing laws of EU consumer law and EU contract law (especially as they were implemented into the legal

*

Research fellow, Hungarian Academy of Sciences – Institute for Legal Studies of the Centre for Social Sciences. E-mail: [email protected].

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Tamas Dezso Ziegler systems of MSs).1 These collections are handy if we want to check MS implementations of EU consumer law – in itself often chaotic – meaning that national systems become more and more messy as they must follow EU legislation. Beside scholarly work and legislation, these works are also useful for large multi-national companies. Without them (and through no fault of their own) the humble lawyer at a law firm or corporation would likely be unable to collate the relevant provisions. A number of other groups have tried to provide frameworks and principles for the future, such as the Study Group of a European Civil Code.2 These are extremely useful if we need an overview of the material. However, they cannot fulfil the same role as the ALI’s or the Uniform Law Commission’s works in the USA. All of the above mentioned scholarly works as well as existing legislation follow the path and thinking marked out by the EU Commission. The thinking of academics is somehow focussed on existing works and rules, and even when they attempt to draft ideal future solutions, being realistic, they tend to follow present art. Yet there are some crucial issues here that we should tackle. First of all – and this is the core of all other issues – we do not know which directions are important for us and why we move in those directions. It is highly typical in European law that its solutions are answers to specific, timely problems. A good example is the adoption of provisions for timeshares. But why exactly are we adopting rules for timeshares and not for other, far more important areas? Another typical way of legislating is to act based on non-issues that appear ‘problem-like’, without any kind of intention to create a transparent system, not even when there exists the opportunity to create it. Somehow, it seems as though EU consumer law has started to gain self-awareness as Skynet does in the film Terminator. Secondly, it is highly doubtful that the present system can fulfil its goal and protect the consumer. Recently, I ordered a book on a well known website. The book did not arrive from Spain to Hungary in two months. All I could do was to cancel the contract, but was this ‘real’, ‘beneficial’ protection for me? There are some very important questions rarely asked by scholars: are there other options that would be more effective at enforcing consumers’ rights? Is the basic paternalistic thinking behind our system appropriate in a world centred on a market economy? Is legislation, including the provisions on the private international law aspects of consumer contracts applied in practice? Or, to be more precise, can they be applied at all? Is the system of remedies protecting consumers? If I buy a mobile phone and it crashes again and again, how many times do I have to bring it back to the seller? Is this substantial and well functioning protection for me?

1 2

H. Schulte-Nölke et al. (Eds.), EC Consumer Law Compendium: The Consumer Acquis and Its Transposition in the Member States, Sellier, 2008. Study Group on a European Civil Code and Research Group on EC Private Law (Acquis Group) (Eds.), Draft Common Frame of Reference (DCFR) – Full Edition Principles, Definitions and Model Rules of European Private Law, Sellier, 2009.

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We have built up myths around these questions. Instead of providing answers, we created a kind of ‘irrational cloud’ that engulfs the present system. The purpose of this article is not really to supply proper answers. I do not pretend to know the answers and accept that there could be answers different from mine, even multiple adequate answers to the same question. Moreover, each of the questions raised could be answered in books, or in a complete set of books. However, it is highly important to raise these questions and to try to give at least draft solutions. Furthermore, it is also important to get rid of bogus answers and concepts. In Europe at the end of 2011,3 a new law for consumer contracts was adopted and a common European sales law was proposed.4 We could be forgiven for feeling as though we were running through a dark forest without any lights, without knowledge about the landscape or nature, living organisms, our destination or any specific goal. Let us stop and rethink our objectives.

24.2

The Myth of an Area which Represents Justice

One of the greatest basic myths we can build around a field of law that has the ability to cover and hide every important detail from our eyes is that the particular field represents ‘justice’. The argument that a field of law represents justice reminds me of populist politicians who like to present their government as serving ‘the people’s interests’. When used generally, these are empty phrases.5 The same unsteadiness is true regarding EU consumer law. As Prof. Micklitz highlighted,6 in legal systems and especially in EU private law, a new kind of ‘justice’ has emerged from the past: ‘social justice’, the justice which handed rights and protection to weaker parties such as consumers and employees. EU law has got more and more ‘social’. Beside social justice in the EU, another type of justice, so-called ‘access justice’ (not ‘access to justice’) also exists and existed even before the rise of the social idea. ‘That is, that it is for the European Union to grant justice to those who are excluded from

3

4 5

6

Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and European Parliament and Council Directive 1999/44/EC repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, Text with EEA relevance. OJ L 304/64. Cf. H-W. Micklitz and N. Reich, ‘Crónica de una muerte anunciada: The Commission Proposal for a Directive on Consumer Rights’, 46 Com. M. L. Rev. (2009), pp. 471-519; W.H. Van Boom, ‘The Draft Directive on Consumer Rights: Choices Made & Arguments Used’, 5 J. Of Cont. Eur. Res. (2009), pp. 452-462. European Commission, ‘Proposal for a regulation of the European Parliament and of the Council on a common European sales law’, COM(2011)0635 final. For a good example of these diffuse elements, which, if not examined one by one with special care seem completely useless, see ILO Declaration on Social Justice for a Fair Globalization adopted by the International Labour Conference at its Ninety-seventh Session, Geneva, 10 June 2008. (ILO website) www.ilo.org/wcmsp5/ groups/public/---dgreports/---cabinet/documents/genericdocument/wcms_099766.pdf, 17 October 2013. H.W. Micklitz (Ed.), The Many Concepts of Social Justice In European Private Law, Edward Elgar Publishing, 2011

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Tamas Dezso Ziegler the market or to those who face difficulties of the market freedoms’.7 Thus, social justice is more about protection, and access justice is more about participation. The emphasis of social justice in consumer law and EU private law has advantages but also several disadvantages, even if its basic idea is somewhat useful. The problem is that this idea does not bring us further if we want to know more about an area. I am sure most of us believe that the law itself was invented to achieve a kind of ‘justice’ or ‘morality’ in society. This is because the law is not (and cannot be) only about ‘liking’ or ‘not liking’ an act or certain kinds of acts.8 Of course, there are numerous divergent theories regarding the relationship between law and morality that can be found even in basic textbooks on legal theory and in books on conceptual legal theory. Most of them concern themselves with the dispute between natural lawyers and legal positivists, and especially in connection with unjustified laws: see for example the works of Hart,9 Dworkin, Fuller,10 Raz,11 Radbruch or Alexy. There are three distinct ways for the law to be interpreted: – As a set of rules containing moral minimum, or – As a set of rules which have a ‘function’. The law as a ‘functional category’, or more precisely, the function of law is based on some sort of moral principle, or – As a norm. As such, it must have a certain link to morality. This relationship is based on the imperative effect of legal provisions.12 It is true that according to legal positivists, we can in theory imagine a legal rule without any moral background – a neutral legal rule. However, I hope we can agree that as Jellinek emphasized,13 law as such acts as a kind of moral minimum, or, if we do not agree with that strict definition, it is the content which society tends to think of as a moral minimum. This compromise changes with place and time. Not just consumer law but all of our domestic legal systems, including the legal system of the EU, were set up to create a kind of ‘ideal state of relations’ following an ‘ideal law’ based on ‘common social values’. Without this, the law as such would not have a purpose. Of course, the specific content changes throughout history. One of these moral values is ‘justice’ in general, which also includes social justice. Even Roman law was created to grant access justice and to achieve social justice. Later on, behind all of our legal systems, there were present the notions of ideal

7 8

9 10 11 12 13

Micklitz, supra note 6, p. 5. M. Bódig, ‘A jog és erkölcs közötti viszony a konceptuális jogelmélet szempontjából [The Relationship Between Law and Morality from the Point of Conceptual Legal Theory]’, 2 Miskolci Jogi Szemle (2007), p. 11. H.L.A. Hart, Essays on Bentham: Jurisprudence and Political Theory, OUP, 1982. L. Fuller, The Morality of Law, Yale University Press, 1964. J. Raz, Ethics in the Public Domain, Clarendon, Clarendon, 1994. The three methods of interpretation are taken from Bódig, supra note 8, pp. 16-18. G. Jellinek, Die sozialethische Bedeutung von Recht, Unrecht, und Strafe, VDM Verlag Dr. Müller, 2007.

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law and ideal society (the world of sollen in Kant’s philosophy). All legal systems have wanted to achieve higher morality (whatever we may mean by that term) in their ethos. Not even the positivists questioned that formulation of law was mostly based on presumed or real concepts of morality and justice, but they thought it better to separate what is behind the norms and the norms themselves.14 The exact methods and tools a legal system employs to achieve justice are irrelevant in this regard. Consequently, it seems to make less sense to think of consumer law as an area that represents justice. Of course it does. It also represents social justice, and so it should. The real question is how it should go about it, not the determination of whether it must contain elements that make human relationships fair. The system of the EEC/EC/EU was not only made to grant access justice to individuals and companies, i.e. to create fair balance on the market, for example in competition law or consumer law, but beyond this, its fundamental approach is and always has been to make social issues, including cross-border economics in Europe fair. The EEC was established to avoid another war in Europe. Cooperation between MSs was set up to ensure proper functioning of the economy, trade, taxation, culture, agriculture and foreign policy. As such, the aim of the organisation has always been to achieve a shared and enhanced system, which may also be more decent, even if this sounds highly subjective. It is somewhat misleading to suggest that the rules of the internal market in themselves do not serve social justice. In this system, social values cannot and never could be separated from other values. Social justice has always been present and cannot be separated from access justice. Market interests cannot be separated from the sole consumer and their position. Last but not least, apart from the basic approach, if we step closer to the picture of EU consumer law, it can be questioned whether there always is the necessary ‘justice‘, in every situation that exists behind the substantive rules of the system. The biggest problem is that the system’s architecture, institutions and several of its rules do not work properly. To use the phrase ‘justice’ for the effects of such a system is unnecessary. Below I will highlight some of the most basic problems that cast doubt on the ‘well justified’ nature of the system.

24.2.1

System and Justice

The first question regarding substantive law should be, before getting into detailed provisions, whether an extremely fragmented system is able to provide ‘justice’ for those in need. The consumer, especially in business to consumer relations (hereinafter referred to

14 One reason to do so was the subjective content of morality. Moreover, in their view, in certain special instances law does not have moral support, see H.L.A. Hart, Essays, No. 7, pp. 145-161; H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’, in Essays in Jurisprudence and Philosophy, Oxford, Clarendon, 1983, pp. 72-78.

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as: ‘B2C’) cannot even check which rules are to be applied since there are dozens of rules on consumer law issues. This results in disorder in reaching (accessing) any kind of social or access justice. On the topic of this article, the most important laws – to name just a few – are the relatively new directive on consumers’ rights,15 the directive on liability for defective products,16 the directive on unfair terms in consumer contracts,17 the directive on certain aspects of the sale of consumer goods and associated guarantees,18 the directive on electronic commerce,19 the directive on unfair business-to-consumer commercial practices,20 the new directive on timeshares,21 the directive on consumer credit,22 the directive on distance contracts (repealed by the new consumer law directive)23 and the directive on doorstep sales (also repealed by the new directive).24 A good example of the chaos of legislation is the case of international e-sales consumer contracts: five or six EU laws containing substantive provisions may be applied alongside numerous domestic regulations and to check the scope of each is terribly complicated. Perhaps this situation is the result of the minimal harmonisation approach, which causes numerous, divergent rules to be applied without any system or framework to link them together.25 However, I believe that it is the result of a lack of carefully planned legislation (see later), and that it could be corrected: it is a mere technical issue. 15 Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and European Parliament and Council Directive 1999/44/EC repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, OJ 2011 L 304/64. 16 Council Directive 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, OJ 1985 L 210/29. 17 Council Directive 93/13/EECof 5 April 1993 on unfair terms in consumer contracts, OJ 1993 L 95/29. 18 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, OJ 1993 L 95/29. 19 European Parliament and Council Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), OJ 2000 L 178/1. 20 European Parliament and Council Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No. 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’), OJ 2005 L 149/22. 21 European Parliament and Council Directive 2008/122/EC on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts (Text with EEA relevance), OJ 2009 L 33/10. 22 Council Directive 87/102/EEC for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit, OJ 1987 L 42, 12 February 1987/48. 23 European Parliament and Council 97/7/EC on the protection of consumers in respect of distance contracts, OJ 1997 L 144/19. 24 Council Directive 85/577/EEC to protect the consumer in respect of contracts negotiated away from business premises. OJ L 372/31. 25 S. Weatherhill, ‘Maximum versus Minimum Harmonization: Choosing Between Unity and Diversity in the Search for the Soul of the Internal Market’, in N.N. Shuibhne and L.W. Gormley (Eds.), From Single Market to Economic Union: Essays in Memory of John A. Usher, OUP, 2012, pp. 175, 182 et seq.

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If we add that even the conflict of laws aspects of consumer contracts are extremely hard to overview – partly because in certain instances substantive rules also contain conflictof-laws provisions26 – we may rightfully call this a highly unfriendly system. Moreover, beyond all these issues, in certain cases an ‘extra layer’ could be created in the future, which will be somewhere in the space between substantive law and conflict of laws. One of the ‘funniest’ problems in choice-of-law issues nowadays is that there may exist an extra ‘choice of the law’ governed by the proposed Common European Sales Law (hereinafter referred to as ‘CESL’),27 a choice which in itself is not really a choice according to the Rome I regulation:28 […] the CESL constitutes ‘a second contract law regime. The CESL provides for an alternative, or parallel, set of contract law rules that can be chosen within the applicable national law system and that replaces the existing ‘classical’ national sales law. It is the (substantive) national law (and thus not private, international law) that leaves room for the application of the CESL (or part of it) and permits the CESL to replace ‘classical’ national sales law, including the mandatory provisions […] Note that the ‘classical’ national law will continue to play a role as a gap-filler where the CESL does not provide for adequate rules. It is clear, however that the choice of the CESL is not a choice of law, in the sense that it is attributed by private international law.29 In fact, the latter approach would be better called the incorporation of a law that is neither EU law, nor national law, but somewhere in between. However, this ‘layer’ may overwrite all contract provisions of national legislation, al well as many provisions of other EU rules, thereby resulting an even more chaotic situation. Furthermore, the EU has recently announced that the Commission will be looking into whether there is a need to adopt further rules, such as on electronic cross-border sales.30 It can certainly be stated that the relationships between different substantive and private international law rules is chaotic and the adoption of the rules seems ad hoc. Several of 26 Tamas Dezso Czigler and Izolda Takacs: ‘The Quest to Find a Law Applicable to Contracts in the European Union – A Summary of Fragmented Provisions’, 12 Global Jurist, Article 6, pp. 1-46; Joined Cases C-509/09 and C-161/10CJEU eDate Advertising GmbH v. X, Olivier Martinez, Robert Martinez v. MGN Limited, 2011, ECR I-10269. 27 Commission, ‘Proposal for a regulation of the European Parliament and of the Council on a common European sales law’ COM(2011)0635 final. 28 Regulation of the European Parliament and of the Council (EC) 593/2008 on the law applicable to contractual obligations (Rome I), OJ 2008 L 177/6. 29 M. Piers and C. Vanleenhove, ‘Another Step towards Harmonization in EU Contract Law: The Common European Sales Law’, http://ssrn.com/abstract=2151256, 5 October 2013, p. 13 et seq. 30 In this regard the US system is also not an example to follow, see T.D. Czigler, ‘E-Consumer Protection in the US – the Same Jungle as in Europe’, 4 Comparative Law Review (2013), pp. 1-32.

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these rules were created as the result of concrete cases. The legislation of the EEC/EC/EU has always been situative in the field consumer law. Once again, the question can be asked: who in the eighties could have predicted that the rules for timeshare contracts or those on doorstep selling would be the most important laws to be harmonized? Yet they were selected by the Commission for exactly this. In sum, we would be justified in harbouring doubts about whether such a system is able to provide those in need with a high level of support and a ‘perfect form’ of social justice.

24.2.2

Content and Justice

Beyond basic systemic problems, several of the most important, typical substantive law provisions should also be questioned. Here I will only deal with some of the most important basic issues. First of all, we could ask whether the approval of the withdrawal (cancellation of a contract) for consumers is a righteous tool or not? Not all scholars would agree with that. I really enjoyed reading Prof. Smits’s critical opinion about this question, namely: […] it was seen […] that withdrawal rights are in particular well founded where a party cannot exercise its party autonomy as a result of pressure put on that party. The clear example of this is doorstep selling: in that case, the traditional instruments of mistake, undue influence and the general unconscionability or good faith doctrine are not optimal. It is then better to standardise the likely possibility that the consumer felt pressurised by allowing her to withdraw from the contract. This is different in case of distance contracts, where there is no need to give a mandatory rule allowing the consumer to rethink its decision to enter into the contract.31 Furthermore, the period available for cancelling a contract has been getting longer and longer. Recently, in the CESL, fourteen days was specified.32 It is important to highlight 31 J. Smits, ‘The Right to Change Your Mind? Rethinking the Usefulness of Mandatory Rights of Withdrawal in Consumer Contract Law’, 2011, Maastricht European Private Law Institute Working Paper 3. Also published in 29 Penn State International Law Review (2011), pp. 671-684. 32 ‘Article 40 – Right to withdraw 1. During the period provided for in Article 42, the consumer has a right to withdraw from the contract without giving any reason, and at no cost to the consumer except as provided in Article 45, from: (a) a distance contract; (b) an off-premises contract, provided that the price or, where multiple contracts were concluded at the same time, the total price of the contracts exceeds EUR 50 or the equivalent sum in the currency agreed for the contract price at the time of the conclusion of the contract.’ ‘Article 42 – Withdrawal period. 1. The withdrawal period expires after fourteen days from:

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that there is a similar tendency in several other parts of the world as well. E.g. in the US, the Federal Trade Commission has successfully adopted some important rules on cooling off periods and the protection of consumers. First of all, its rule on cooling off periods for doorstep sales states that a consumer has the right to cancel a contract until midnight of the third business day after the contract was signed. Secondly, according to the mail or telephone order rule,33 if someone orders goods by mail, phone, computer or fax, the latter law requires that the seller ship to the buyer within the time promised or, if no time was stated, within thirty days. If the seller cannot ship within these periods, he must send the buyer a notice with a new shipping date and offer the option of cancelling the order and being issued a refund, or accepting the new date. If the buyer opts for the second deadline but the seller cannot meet it, the buyer must be sent a notice requesting their signature to agree to a third date. If the buyer then does not return this notice, the order must be automatically cancelled and the purchase price refunded. The seller must issue the refund promptly, within seven days if the buyer paid by check or money order, or within one billing cycle if the buyer charged the purchase.34 Turning back to EU law, if we think of the consumer as always being the ‘weaker party’ (for this myth see later), the rule that the consumer must pay the costs (up to € 40 ) of returning goods can also be questioned.35 Furthermore, besides cancelling, the system of remedies would also need a deeper analysis. We could ask whether repairs instead refunds are beneficial for consumers. In most cases, the seller has the option to repair the goods supplied. The question that must be raised regarding the above problem is the following: can we claim that a system serves social justice if there are fundamental problems with it? Perhaps we can, but such an approach makes us blind to the most important problems.36

33

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35 36

(a) the day on which the consumer has taken delivery of the goods in the case of a sales contract, including a sales contract under which the seller also agrees to provide related services […].’ For deeper analysis into the technical matters and the wording of the law, see FTC ‘A Business Guide to the FTC’s Mail or Telephone Order Merchandise Rule’ (Federal Trade Commission website) http://business.ftc.gov/documents/bus02-business-guide-mail-and-telephone-order-merchandise-rule, 8 October 2013. The basics of my summary were taken from Joseph N. Conway, ‘Consumer Law Help Manual’ (Orange County) www.orangecountygov.com/filestorage/124/826/1278/Consumer_Law_Help_Manual_-_Contracts.pdf, 1 February 2012. P Rott, ‘Harmonising Different Rights of Withdrawal: Can German Law Serve as an Example for EC Consumer Law?’, 7, German Law Journal (2006), P. 1123. For German solutions see ibid. Incidentally, in EU labour law we may also find strange solutions and practices. In that field are right to have doubts about the effectiveness of certain regulations such as those on equal payment of men and women, since women still earn less than men. The practice is well known and is widely accepted (whist there is regular action taken to attempt to change the situation).

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24.2.3

Institutions and Justice

Besides general systemic and substantive law concerns about justice, there are also institutional, procedural problems that can cause malfunctions. There is no harmonisation in the field of a common institutional background. Thus, apart from the Commission in certain competition law related cases, there is no general EU authority that could protect consumers in cross-border contracts. Furthermore, the systems of national authorities are quite diverse. In several countries there are four to six authorities dealing with consumer claims. Powers are split between authorities dealing with and supervising consumer loans, unfair advertising, damaged goods, product liability, etc. When considering access to justice and social justice, the latter can be very problematic, especially in cross-border contracts. If we accept the fact that rights are useless if they cannot be enforced and accessed, we should emphasize enforcement far more. Incidentally, law enforcement in EU consumer law could be best helped by giving people more autonomous rights and by teaching them how to defend their interests, instead of creating more domestic authorities. Yet in majority of Member States no small claims courts exist, even though such courts would serve as effective tools in protecting consumers’ rights. It is true that in several countries, a special payment process is used for small claims, and it is usually faster than normal court proceedings. In the EU the regulation on the Order on payment procedure37 and the regulation on small claims procedures38 attempt to solve these problems. I would be surprised if these rules in themselves would be enough for protecting consumers, since very few consumers will sue and try to enforce the court’s ruling in another country. Furthermore, opt-out class action (collective redress) is generally not available either. The Commissioners for justice (Reding), Competition (Almunia) and Consumer Affairs (Dalli) agreed in 2010 regarding the following principles of a necessary class action procedure: – They regarded collective redress as an instrument to strengthen the enforcement of EU law, notably within the more decentralised situation of enforcement that prevails. – Collective redress if a broad concept encompassing any mechanism that may accomplish the cessation or prevention of unlawful business practices which affect a multitude of claimants or the compensation of harm caused by such practices. – Collective redress is not a novel concept, and the existing mechanisms vary widely throughout the EU.

37 European Parliament and Council Regulation (EC) 1896/2006 creating a European order for payment procedure, OJ 2006 L 399/1. 38 European Parliament and Council Regulation (EC) 861/2007 establishing a European Small Claims Procedure, OJ 2007 L 199/1.

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– The diversity and lack of a consistent approach may undermine the rights of citizens and businesses and give rise to uneven enforcement.’39 The newly proposed class action recommendation40 is only a recommendation, and only partly tackles the problems.41 When opt-out class action is mentioned, most people in continental academia will start to feel discomfort and even distress, due to unfamiliarity with that approach. Some claim that it causes ‘excessive litigation, excessive legal transitional costs, blackmail settlements and punitively high costs for business’.42 These arguments seem to be unfounded from a moral point of view: our purpose should be to achieve higher standards for consumers, and (as seen later) to force them to respect their obligations. However, concerns that litigation costs would be too high or that there would be blackmailed settlements cannot be sufficient reason to dismiss such a tool: in fact, they are completely irrelevant as long as the system functions better.43 A survey showed that 74% of EU consumers would defend their rights before a court if it were useful for them.44 As another argument against class actions, it is also regularly stated that the EU may not have sufficient authority – another strange argument we should forget, since it is perhaps untrue.45 Last but not least, there is the argument that consumers will remain unidentified 39 Ch. Hodges, Developments in Collective Redress in the European Union and United Kingdom 2010 (Stanford Global Class Action Exchange), http://globalclassactions.stanford.edu/sites/default/files/documents/1010% 20Class%20Actions%20UK%202010%20Report.pdf, October 2013, p. 2. 40 Commission Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law. OJ [2013] L 201/60 41 For a good summary see Csongor István Nagy The European collective redress after the European Commission’s Recommendation: one step forward, two steps back? (Manuscript) 42 Ch. Hodges, ‘European Union Legislation’, 622 Annals of the American Academy of Political and Social Science – The Globalization of Class Actions (2009), p. 81; L. Fiedler, Class Action zur Durchsetzung des europäischen Kartellrechts, Mohr Siebeck, 2010, p. 66; D. Fairgrieve and G. Howells, Collective Redress Procedures – European Debates, 58 Int’l & Comp. L.Q. (2009), pp. 379 et seq. 43 This is a key issue: there is an argument against class action that it could be misused by consumers, see Fiedler, Class Action… (note 42), p. 67. 44 See p. 82 thereof. 45 See Treaty on the Functioning of the European Union OJ C 326/47. It is still disputed which areas of consumer law and related procedural law issues could be covered by EU law. On the other hand, I believe that, after so many years of EU consumer law legislation, when the single European market got more and more connected to consumer law, when a European consumer even in intra-country B2C relations is connected ‘to the whole of Europe as such’, we should not state that the EU has no authority in this field. For mainly substantive provisions, Art 169 Treaty on the Functioning of the European Union (hereinafter referred to as: ‘TFEU’) says the following: 1. In order to promote the interests of consumers and to ensure a high level of consumer protection, the Union shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests. 2. The Union shall contribute to the attainment of the objectives referred to in paragraph 1 through: (a) measures adopted pursuant to Article 114 in the context of the completion of the internal market; (b) measures which support, supplement and monitor the policy pursued by the Member States.

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in many cases and therefore that a majority of them would not receive any payment in compensation for their damage. Nevertheless, if there is a chance for a portion of consumers to receive some compensation, such claims should still be supported. In addition, businesses would obviously care more if they were forced to pay large sums for deceptive practices or mass breaches of contracts. As the European Consumer Organisation wrote to President Barroso in an open letter, […] recent scandals related to defective breast implants (at least 100,000 victims throughout Europe) or dangerous medicines, as well as numerous other crossborder unfair commercial practices and infringements of consumer rights leave EU citizens stranded with little prospect of redress. It is unfortunate that the lack of action from the Commission allows some wrongdoers to retain illegal profits and fails to create incentives for fair competition… We thus reiterate our high hopes that, alongside other steps to strengthen the Internal Market, your Commission will proceed with concrete legislative steps on collective redress.46 As seen above, even in EU competition law interpreted broadly (in the field of unfair business practices) there is a need to introduce this concept, and the Commission has also

3.

The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall adopt the measures referred to in paragraph 2(b). 4. Measures adopted pursuant to paragraph 3 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties. The Commission shall be notified of them. ‘It emerges from this provision that the TFEU envisages the adoption of secondary EU consumer law in different legal contexts: first, such law may be internal market law adopted on the basis of Art. 114 TFEU. Under this provision, the European Parliament and the Council shall adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market. Second, consumer protection legislation may be adopted on the basis of Art. 169(3) TFEU. In addition and in a broader sense, consumer protection legislation may also be found in other legal contexts, e.g. transport law or social non-discrimination law.’ Christa Tobler: The Lisbon Treaty And Its Influence On Consumer Law. Gastvorlesung an der Ryukoku University, Kyoto, Japan, 23.04.2011. 2011. https://ius.unibas.ch/uploads/publics/7522/Consumer_protection_28June2011.doc, 5 October 2013; for a comprehensive analysis about the background see e.g. Jürgen Schwarze (Ed.), EU-Kommentar, 3rd edn, Nomos, 2012, p. 1420, pp. 1763 et seq., esp. p. 1764. If, beyond substantive law, we think about the background of procedural law, we could also use Art. 81(f) TFEU, which says that the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States. Latter provision clearly gives the EU authority to act in the field of class actions. 46 Letter of Monique Goyens, General Director to President Barroso (The European Consumer Organosation, 25 April 2012), www.beuc.org/custom/2012-00274-01-E.pdf, 10 October 2013.

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investigated this.47 However, it seems now that, these plans in the field of consumer law and competition law were unfortunately dropped by the Commission, without the option for change in the near future. In a typical case from 1970s that could occur even today and which proves that something is going wrong within the EU, a French wine producer filled bottles with 1,486 litres of wine instead of 1.5 litres as labelled. After 200 million bottles, their profit on this small discrepancy was 13 million francs.48 The present framework is not able to avoid such cases either, and a simple recommendation is not a useful tool to solve the existing problems. Class actions notwithstanding, punitive redress is also not applied, even though it would be effective in providing tighter control over global-multinational companies.49 Consequently, in many cases there is no real and effective protection for consumers when a large company with cross-border affiliations mistreats its buyers. To claim that such a system provides justice is very unfortunate. Undeniably, there is indeed a kind of justice: in some cases the system yields optimal results. But there are also plenty of examples to the contrary, with devil being in the detail: it is as if the really important rules of EU consumer law were hidden behind a finely decorated draught-screen.

24.3

Myths of the Vulnerable Consumer

European consumer law is fundamentally paternalistic and handles consumers like they are small children and not adults capable of making independent decisions, contracting with responsibility. There exist strict rules on what they are allowed to do, what other parties (businesses, banks, etc.) are allowed to do and how consumers may reclaim their money. In itself, the existence of such a system is completely acceptable. For example, this is how general contract law works in MSs. There are actions that are legal and actions deemed illegal. EU paternalism has two sides in the area of consumer law: firstly, there exists strong intrusion, as mentioned before, which may yield good results. Yet secondly, in numerous instances consumers receive unjustified benefits. Knowing this system, we are bound to feel that its approach is deeply rooted in the thinking of European academia: that the consumer is always the exposed party. However, this is not the case. Businesses may also be harmed. Not in all situations is the consumer the weaker party. If masses of consumers abuse their rights, this can also lead to undesired results. For example, as already 47 Commission, ‘Green paper on consumer collective redress’, COM(2008)794 final. 48 Example taken from L. Fiedler, Class Action zur Durchsetzung des europäischen Kartellrechts, Mohr Siebeck, 2010, p. 36. 49 I don’t go into detail about that idea here, because I also feel that introducing punitive redress could have more weaknesses than that of class actions. In the US, there is an enormous body of literature available about the usefulness of this instrument, but of course there are also scholars who criticize its usage and practice. Thus, the collection of all advantages and disadvantages would take a deeper analysis into this topic.

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mentioned before, a valid question is what reasons should be valid for allowing consumers to withdraw from and cancel a freshly concluded contract. This concept of withdrawal is used in the doorstep selling directive (Article 5), in the previous timeshare directive (Article 5), in the new timeshare directive (Article 6), in the distance selling directive (Article 6), in the directive on the distance marketing of financial services and50 as well as in the new directive on consumers’ rights (Article 9).51 In each directive, the length of time allowed for withdrawal was set differently: according to the latter directive, consumers have 14 days to return an article.52 When consumers are not notified about their right to do this, the time allowed will extend – however, this extension varies among MSs as well as throughout EU legislation.53 This instrument may well be useful when the consumer really is in a position that requires him/her to make a decision quickly, as in the case of doorstep sales. Perhaps, contrary to Prof. Smits’s opinion as presented earlier, it could shape as set in the contract, in cases the buyer not being able to check the good before signing. However, withdrawal should not be used as an all-round ‘tool’ in a broad range of consumer contracts. Why should we instruct consumers to breach an obligation they voluntarily entered into? This way we educate them not to respect the contracts they sign. We ought to train them differently, informing them on how to make sound decisions independently, and based on those decisions, to accept the responsibility. The ‘vulnerable consumer myth’ is not based on the real life position of consumers. It is based on a false interpretation of duties. Of course, there are situations when consumers are subject to harm and need to be protected, but I do not believe that allowing them to cancel an obligation is the best way to create redress – not even for consumers themselves. The primeval period of consumer legislation is over. There is no longer a continuous need to defend the consumer. We are not living in a night-watchman state that leaves vulnerable parties without the means do defend themselves. Furthermore, as another effect (and not always a cause!) of the same problem, we can observe companies slowly but surely starting to think in distorted ways. If contracts and contractual obligations are not respected by one party, they won’t be respected by the other. E.g. in electronic commerce, it has become quite common to advertise goods sellers do not even own on the most popular, international websites. When the company receives 50 European Parliament and Council Directive 2002/65/EC concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC OJ 2002 L 271/16. 51 For a good analysis of these rules and the related case-law see H. Schulte-Nölke et al., supra note 1, pp. 471 et seq. 52 It is obvious for most of academia that the difference in lengths is also harmful for businesses, since it requires extra effort to check the rules. 53 See the chart in H. Schulte-Nölke et al., supra note 1, pp. 475 et seq. Please also note that according to Art. 11 of the Directive on consumers’ rights, if the trader has not provided the consumer with the information on the right of withdrawal, the withdrawal period shall only expire after twelve months from the end of the initial withdrawal period.

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an order, it orders the goods from another supplier (e.g. in the US) and attempts to sell it. However, if there is a shortage of the goods in the market, even if there was an offer by the company and formal acceptance of this offer by the buyer, the consumer will not receive the goods ordered, or only receive it with after a long delay. It has to be mentioned again that formally, a contract exists – even if the entry into force was modified by the company. Thus, businesses are starting to break away from the old ‘you sell what you’ve got’ rule and make abundant offers for goods they have not stocked. This approach in itself would not be a problem, but it can result in serious complications. At worst – those who often order goods on the Internet know this well – there is a high probability that goods ordered will never arrive, or only arrive after major delays. In such cases, the buyer only has two options: to wait or to cancel the contract. However, cancelling the contract is not a real ‘remedy‘, and it will not bring the buyer closer to possessing the goods. And this brings us on to the problem of the questions about the myth of the vulnerable consumer being answered in several different, inadequate ways: one of these answers is that the consumer needs the specific assistance as provided by the present state of EU law.

24.4

The Myth of Consumer Benefits and the Usefulness of the Rules

Unlike we would suppose based on the above-mentioned point, there are situations in which the EU should indeed act. Thus, there is a real need to create rules, yet the EU does not do anything. Consumers really are vulnerable, though not especially in sales contracts, but in other areas. Yet, in some sales contracts, the system could also be more protective, but it seems unwilling to provide substantial real protection instead of a bogus one (see below).

24.4.1

Asking Companies to Provide Information Is in Itself a Useless Measure

As an example of a problem that needs more attention, we could examine the case of Hungarian consumer loans and mortgages, and especially lending by banks in a foreign currency (hereinafter referred to as: ‘FX loans’). As a sort of protection, businesses (as well as banks) are required to give several pieces of information to consumers regarding the conditions of loan contracts, even if clients cannot reasonably understand this information. This obligation stems from the relatively new movement ‘away from market restraint remedies toward information remedies’, and the same trend also exists for selling goods.54 These obligations concerning information contain strict mandatory rules and the parties

54 Ch. Moorman and L.L. Price, ‘Consumer Policy Remedies and Consumer Segment Interactions’, 8 Journal of Public Policy & Marketing (1989), p. 182.

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may not use their own, more flexible ones. When consumers conclude a contract in a bank for example, they can check the general contract terms, which can be found in a thick dossier at the counter. In addition, bank clerks also attach several forms to each contract. […] There seem to be a growing, though naïve and empirically doubtful confidence in the belief that better information and cooling off periods will prevent unfairness to consumers from occurring in practice.55 However, giving information does not provide real protections, as the following example shows. In Hungary, a large number of people entered into loan and mortgage contracts denominated in Euros or Swiss Francs over several years without expecting that the local currency would lose significantly from its value against the foreign ones. We could say that this arrangement (with enticingly lower interest rates than domestic rates) was the product of the EU internal market and international macroeconomics at work. However, given that more than one million (sic!) such contracts were concluded in Hungary, a country with 10 million citizens, this has ended up seriously destabilizing the financial liquidity of the population. Many borrowers lost all they had in a couple of years due to the sudden, significant and permanent weakening of the domestic currency (Forint) in the wake of the crises beginning in 2008. In order to limit such dangers of lending, the government introduced a wholesale bans on certain types of loan contracts – legislation that seemed to violate EU law. A decree adopted in 2011 codified a restriction that a client is only eligible for a foreign currency-denominated loan if his/her gross monthly salary, earned in the currency of the loan applied for, exceeded a sum equivalent to 15 times Hungary’s minimum wage, expressed in Forints. In response to this legislation, after initiating a pilot procedure in 2011, an infringement procedure was commenced against Hungary, only to be dropped in July 2013. The decision to withdraw the case against Hungary (and, incidentally, another against Spain) came after the European Court had ruled in favour of France in a similar case. In late 2013 the Hungarian government pressed banks to limit their FX loan activity and restructure and/or renegotiate existing loans with consumers.56 Later, the government forced banks to change foreign currency loans to

55 Study Group on Social Justice in European Private Law, ‘Social Justice in European Contract Law’. 10 European Law Journal, 6, 2004 p. 661. 56 Hungary banks should bear most of FX losses on loans (CNBC), www.cnbc.com/id/101013522, 1 October 2013. ‘We are prisoners of the exchange rate (because of the high amounts of foreign-currency loans) – we have to free ourselves from that.’ Mr. Orban said. (Wall Street Journal) http://blogs.wsj.com/emergingeurope/2013/03/12/hungary-wants-freedom-from-foreign-currency-loans/101013522, 1 October 2013; P.J. Szpunar, ‘System Risk Lessons from FX Loans in Central and Eastern Europe’ (Central Banking Journal), www.centralbanking.com/central-banking-journal/feature/2175181/risk-lessons-loans-central-easterneurope, 1 October 2013.

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Forint. In the related Kásler case the Hungarian Supreme Court (Kúria) asked57 the CJEU whether certain terms in foreign currency loan contracts may be deemed invalid from the point of EU directive law, especially that of the Directive on unfair terms in consumer contracts.58 In its judgment, the CJEU said that contractual terms relating to foreign currencies are not necessary exempt from an assessment as to whether they are unfair, and the evaluation of such contracts may be done by local courts.59 As an answer, the government introduced a new law. According to the new rules, the government sued banks, and banks had to prove (in a 30 days long court procedures) that foreign currency loans were conform with consumer law rules. However, courts were instructed not to accept the former arguments of banks that these contracts were conform with the letter of the law at the time of signature. As a result, in most of the cases banks lost the trials, which raised several constitutional problems: a retroactive rule was created forcing banks into an extremely quick trial and loosing about 3 billion Euros, while judges had to assist to this procedure.60 Later, the Constitutional Court found the nonsensical procedure conform with constitutional principles.61 An EU introduction into the field would be necessary to maintain balance on the single market and fix such problems for the future Europe-wide. What can we ascertain after knowing the facts of this case? From the point of consumer law, on one hand, we have useless obligations such as having to provide information that is not useful for ensuring that conditions are fair. On the other hand, we have a lack of rules that could yield more protection. In a vanishingly small number of cases such contracts may be irrelevant: consumers must have basic self-awareness and need to think in a more international way. However, the result of such contracts could be the impoverishment of the masses in a country. We must emphasize that the global financial crisis also began in such an environment. Simplified strongly, a core component was that individual borrowers could not pay their loans back, and this caused a crunch for lenders. Therefore, in order to protect the economy (and not just consumers) it is important to act as soon as possible. The complete uselessness of information given to consumers can be clearly seen in these cases. As mentioned above, the situation is also very similar regarding consumer sales and information requirements. Some authors highlight the fact e.g. in connection with the Common European Sales Law that

57 Case C-26/13: Request for a preliminary ruling from the Kúria (Hungary) lodged on 21 January 2013 – Kásler Árpád, Káslerné Rábai Hajnalka v OTP Jelzálogbank Zrt. [2013] OJ C 156/18. 58 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts [1993] OJ L 95/29. 59 Judgment of the Court (Fourth Chamber) of 30 April 2014. Case C-26/13. ECLI:EU:C:2014:282 60 Banks facing EUR 3 billion forex bill. 61 Decision III/1522/2014. (soon to receive a new number).

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its contract disclosures are likely to fail because consumers will not pay attention to them. People do not pay attention to standard forms, neither long nor short, in plain language or in legalese, written or oral, separately signed or unified into one document, handed out in advance or ex post. The failure of consumers to attend to mandated disclosures packaged in pre-drafted language has been documented thoroughly, in area after area of consumer transactions, medical «informed consent», privacy, financial literacy, and much more.62 System of Remedies Is not Always Beneficial for Consumers Returning to sales contracts: it is not worth allowing cancellation but (as explained further on) a real remedy would be more useful. E.g. if companies had to pay back double the purchase price, this measure, together with collective redress procedures could possibly stop them from being acting in bad faith. Simple cancellation is not an effective tool for that, as it has no retaining effect. Furthermore, as already mentioned, we could ask whether repair as such serves the interests of companies or of consumers. In fact, we might well feel that the approach of favouring repair over exchange is only beneficial for businesses, and perhaps for the environment, but not for everyday consumers. The method used in the US where businesses conclude special service contracts for purchasing goods could also be considered for the EU. With these, consumers receive goods far cheaper than with a longer warranty period. Private International Law on Consumer Contracts Cannot Be Followed in Practice Finally, the private international law background of consumer contracts also seems highly problematic. This area is another typical example of how EU (private international) consumer law tries to protect consumers but is unable to do so. Article 6 of Rome I regulation (hereinafter referred to as: ‘Rome I. regulation’ or ‘regulation’)63 contains specific provisions on the law applicable to contracts in contrast to the general rules of its Articles 3 and 4. Based on the former rules, as a kind of ‘protection’, the law of the consumer’s habitual residence may be applied in B2C contracts in the EU. There are two important necessary conditions for such contracts to fall under Article 6:

62 O. Bar-Gill and O. Ben-Shahar, ‘Regulatory Techniques in Consumer Protection: A Critique of European Consumer Contract Law’, 50 Common Market Law Review (2013), p. 117. I also agree with the view that ‘[…] traders, too, are often happy to cover their backs by oversupplying information. Academics are just starting to question whether information rules could not be more effectively targeted. Bearing in mind the magic number 7 (as being the most chunks of information that can be processed), they are suggesting that the starting point should probably be that “less is better”.’ G. Howells, ‘The Potential and Limits of Consumer Empowerment by Information’, 32(3) Journal of Society (2005), p. 363. 63 European Parliament and Council Regulation (EC) 593/2008 on the law applicable to contractual obligations (Rome I) OJ L 177/6.

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– The contract between the professional and the consumer has to fall under the material scope of consumer contracts, and also – The activity of the professional must be directed to the MS where the consumer has his/her habitual residence. Thus, if the business pursues its commercial or professional activities in the country where the consumer has his/her habitual residence, or the business directs such activities – whether exclusively or not – to that country, the contract shall be governed by the law of the country where the consumer has her habitual residence. Even if there is an expressis verbis choice, it is not a mere competition of legal systems. This is why I strongly disagree with a statement that a significant number of B2C contracts would contain choice-of-law provisions leading the parties to the application of a foreign law.64 The statistics that 65-80% of contracts contain choice-of-law clauses are completely irrelevant, and so is the fact that 43% (or 85%, according to other statistics) of companies occasionally use foreign law in their contracts.65 These are not competing legal systems applied, but fixed positions forced at the consumer to create safe and standard rules for the company.66 Based on the Rome I regulation, B2C contracts can be concluded and executed via the Internet as well.67 The law applicable to contracts for downloading software, music and films from the web is generally the law of the country where the consumer has her habitual residence, if that is the location of the download process and if the site includes a request to conclude a contract.68 In case of multi-national companies, the application of this rule can be extremely misleading. In legal practice, in most cases the law of the professional’s residence is applied, even if the professional has activity in the MS of the foreign customer, and such a useless rule only complicates B2C relationships. For example, if a Hungarian temporary resident in Germany visits a German (multinational) phone company’s shop in Berlin and buys a mobile phone, in most cases German law will be applied because of the rationality argument

64 G. Rühl, ‘Regulatory Competition in Contract Law: Empirical Evidence and Normative Implications’, 9 European Review of Contract Law (2013), pp. 68 et seq. In this regard I agree with the majority of German scholars like Basedow, Leible or Mankowski. For their related articles see Rühl, Regulatory Competition, op. cit. p. 67, note 18. thereof. 65 See p. 69 thereof. 66 Incidentally, the statistics are also misleading since in several instances they mix B2B and B2C contracts which should be separated. The attributes of such contracts are completely different. 67 A.V. Dicey et al., The Conflict Of Law, 4rd Cumulative Supplement to the 14th edn, Sweet & Maxwell, 2011, pp. 393-394; S. Leible and M. Lehmann, ‘Die Verordnung über das auf vertragliche Schuldverhältnisse anzuwendende Recht (‘Rom I’)’, 54 RIW (Recht der Internationalen Wirtschaft) (2008), pp. 528, 537. 68 A passive website, through which concluding a contract is not possible, cannot be considered to be activity in that country, see Lorna E. Gillies, Electronic Commerce and International Private Law, 2008, p. 141; Leible and Lehmann, ‘Die Verordnung…’ (note 66), p. 537. F. Ragno, ‘The Law Applicable to Consumer Contracts under the Rome I Regulation’, in F. Ferrari and S. Leible (Eds.), Rome I Regulation, Sellier, 2009, p. 147.

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of two parties concluding a contract in Germany, and also because this approach is also enforced by the company. Such choice-of-law is sometimes expressis verbis uttered in the contract, or (without reference that it would be a choice-of-law) the parties simply use German (substantive law) conditions in their contract. From the viewpoint of private international law, the latter can be considered an incorporation of foreign law. However, in theory, according to Rome I, neither of these two solutions is allowed to harm the consumer’s rights that he would have based on the law of his/her permanent residency: in our example, Hungarian law (see Art. 6 (1) Rome I regulation). Since the substantive provisions of the MSs are different, that is why I believe there may exist billions of contracts in which the customer’s rights are harmed and where the parties use an ‘improper choice of law’ for their contract. Moreover, the situation is similar in regard to third states (non-MSs). If a company from a third state maintains a website and contracts can be concluded through this website, the habitual residence of the consumer will likely have relevance. If someone concludes a consumer contract with a New York based company and buys goods from New York via the Internet, the contract may be a consumer contract according to Article 6. of Rome I, and the general rules of Article 4. of the Regulation [especially Article 4(1)a] cannot apply. Of course, in order to reach this conclusion, the term ‘directed activity’ has to be interpreted (targeted activity test) considering all circumstances of the case.69 However, the text and background of the Rome I Regulation would lead to the determination of this fact since the territorial conditions are present in the country of the consumer’s residence. According to Art. 6(2) of the Regulation, if the parties decide to choose New York law, they may not lower the level of consumer protection as set out in the laws of the country of the consumer’s habitual residence. In this case, managers of the New York company will be hard pressed to consider that both EU and domestic law may have relevance, and the consumer would also not likely be aware of this fact. In summary, the relevant private international law rules also seem completely useless for the protection of consumers, even if they sound very nice at first sight. As an extra problem, just like in for substantive law, EU private international consumer law also has another problematic point, namely the question of fragmentation: most of the EU directives/regulations dealing with substantive issues contain rules on private international law issues, which overrule the provisions of Rome I regulation, and thus make the framework even more complex.70 .

69 For the best explanation of the targeted activity test see G-P. Callies (Ed.), Rome Regulations, Alphen aan den Rijn, Kluwer, 2011, pp. 124-155. 70 T.D. Czigler and I. Takacs, ‘Chaos Renewed: The Rome I Regulation vs Other Sources of EU Law – a Classification of Conflicting Provisions’, Andrea Bonomi (Ed.), Yearbook of Private International Law, Vol. 14, Swiss Institute of Comparative Law & Sellier, Munich, 2012/2013, pp. 539-558. For concrete texts see Tamas Dezso Czigler and Izolda Takacs, ‘The Quest to Find a Law Applicable to Contracts in the European Union – a Summary of Fragmented Provisions’, 12(2) Global Jurist (2012), Article 6, pp. 1-46.

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24.5

The Myths We Built around EU Consumer Law

The Myth of the Necessity of Continuous State Intervention

Paternalism in EU consumer law has reached many areas, all in connection with the boundary between actions deemed legal or illegal. For declaring actions illegal, the system allows less and less leeway for parties. Many scholars criticize the use the term ‘paternalistic’ at conferences, because they feel that the present level of intrusion into party autonomy in Europe is optimal. But this statement can be questioned. The contract law approach of the English and US legal systems has always been more open and liberal, and it would be tough to claim that this is bad for consumers. For example, as discussed above, with shorter periods for remedies in the US, they receive goods cheaper. In Europe (and especially, traditionally in eastern Europe) governments are very much afraid of markets and the idea that the market may create its own rules, without continuous state intervention. Of course, the laissez-faire approach was not useful, and the night watchman state resulted in highly unfair practices throughout the legal system, but this approach was blocked by constitutional principles and rules defending weak parties.71 However, those times have passed, and we should not act as if the consumer would is completely defenceless. Somehow, today Europe seems to be moving in a strange direction in consumer law, trying to enter into new areas and govern them instead of allowing space for the parties. If we allow some more space, the market will be able to govern itself, and only basic legal frameworks need be established. At the present time, the most important institutions for consumers are consumer protection authorities. These are the offices in the centre, and MSs punish those who do not comply with rules. However, there exists another way of thinking: let us allow consumers to defend their rights instead of having government agencies do so. In a consumer issue, in most cases consumers are still, even under the present paternalistic system vulnerable, because they have no tools in hand to undertake effective legal action. Due to certain legal instruments, US companies are forced to be careful with customers. One of these is class action litigation: cases abound in which corporations have had to pay off thousands of their customers. Class action suits make the system more ‘alive’ and active than centralized government organizations trying to control corporations. The same is true regarding small claims courts: lacking in most European countries, such forums are worth applying to for consumers, potentially granting them a decision easily without the formidable expense of traditional litigation. Another institution to push companies back is the system of punitive (exemplary) redress. Continental lawyers are always afraid of this instrument being used. However, its open market approach should be an example of the direction to move in.

71 M.W. Hesselink et al., ‘Constitutional Aspects of European Private Law’, Centre for the Study of European Contract Law Working Paper Series, No. 2009/05, http://dare.uva.nl/document/171573, 5 October 2013, p. 6.

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24.6

24.6.1

Ease of Myths: Cornerstones of an Ideal System

Systemic vs Individual Problems and a Four-Step Model for the Future

As it can be concluded based on the above, there are two kinds of problems in existing EU consumer law. Firstly, there are structural problems. One of the structural problems is the acceptance of a paternalistic system and all of its elements without criticism. Contrary to what is suggested by legislators and NGOs representing consumer rights, such a system in itself is not always useful and not always beneficial for the consumer. Its rules can lead to results ranging from bad to optimal, but the mystique surrounding it only serves to cover up the problems it causes. Moreover, another structural problem is the complicated access to legal sources; in a highly fragmented system it is easy to get lost between legal sources. Furthermore, missing institutions weaken the system. Secondly, there are problems with badly judged one-off, independent solutions. These problems may seem less problematic, but if they become systemic mistakes, they can cause malfunctions as well. We can state that systemic failures are created by the compounding of wrong decisions at the lowest level. In order to achieve a properly functioning policy of consumer law, even though it sounds didactic, I would recommend a four-step model to follow when creating legislation proposed by the Commission. We know the Commission investigates most of these problems – however, the output of legislation is not as well structured as it could be. The steps are the following: – 1st step (systemic level 1): decide whether legislation is necessary or not? I.e. decide between party autonomy and EU intervention – 2nd step (systemic level 2): avoid fragmentation – overview of existing provisions – 3rd step (individual level 2): real rules for real life – explore the purpose: who do I want to support – 4th step (individual level 2): choose the right solution. Henceforth, the single steps will be explained in detail.

24.6.2

Step 1 (Systemic Level 1): Party Autonomy vs EU Intervention

In the first step, the legislator must decide two questions. Firstly, whether the intervention is necessary or not. Secondly, whether she wants to follow the European model of governing the relationships, which prefers state/EU intervention into private relationships, or if there is another, more liberal (useful, flexible, etc.) model which may be beneficial.

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We know the Commission undertakes thorough background analysis before it starts a legislative procedure. However, in most cases this procedure is a result of a model typically used in Europe: it is based on state intervention, even when intervention is not quite as important or useful in order to reach the stated goals. Sometimes we get the impression that some rules exist merely to be able to demonstrate that certain departments at the Commission are doing their job instead of reacting to real social needs. E.g. it is dubious whether in case of timeshare contracts it was more necessary to adopt independent rules than in the case of electronic sales, car sales, computer sales, sales of real estate, etc. The question could also get raised about why we do not have a general rule for consumers like the Magnuson Moss Warranty Act72 in the US? Of course, admittedly, total harmonisation of consumer law seems highly problematic. Moreover, it seems that presently we only use in all laws a single regulatory model based on EU intervention: setting informational rights, withdrawal periods and remedies such as repair, exchange and refunds. The main purpose of this strategy could be that it makes for greater coherence and enables many different sources to be interpreted analogously or nearly so. However, we are right to doubt whether ‘one size fits all’ really is the correct approach to follow. Is it obvious that distance contracts must be regulated similarly to timeshares and doorstep sales? Each and every relationship has its own rules that cannot be used for another relationship. This means that cases should be handled separately. We know there were conflicts during the negotiations between civil law and common law countries regarding consumer law issues during the preparatory works of the new consumer law legislation: that was the reason why its scope ended up being severely curtailed. However, there is obviously no need for all issues to be handled similarly in different legal sources, and we civil lawyers should act with more flexibility and allow for more common law approaches in our statutes.

24.6.3

Step 2 (Systemic Level 2): Avoiding Fragmentation

The question of whether to intervene or not and the basic tool/ethos we employ brings us to the next question: whether we need new regulation at all, or if we can introduce new rules into existing regulation(s). In this regard there are two very important guidelines, which are presently not followed at all: Firstly, all rules should be put into one directive.73 This is just a technical issue, not deep reform. Existing rules should perhaps not be reformed if we cannot accept the new 72 15 U.S.C. 2301. Cf. Ch. Twigg-Flesner, Consumer Product Guarantees, Ashgate, 2003, pp. 133 et seq. 73 This approach was used for example in the field of the free movement of persons, where several rules were collected and put into a new directive, see European Parliament Council Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC,

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solutions, i.e. if there are differences among MSs’ opinions that cannot be resolved though compromise. But we do need a well-structured legal source for consumer issues. It would be especially important to handle the question of scope: currently, some regulations provide not a word about their scopes, while others covering similar areas do contain rules on their applicability.74 For certain kinds of sales there are three to five directives that must be applied. Without having a single regulation and a transparent, properly and easily accessible source for consumer law issues, the system will remain utterly unfriendly for non-experts. At present, this is a system for academics, not for practicing lawyers. Secondly, even if we do not follow this path (and especially if we do), it would be advisable to use another important rule in order to retain transparency: no new rules (regulations, directives, etc.) should be adopted; instead, new rules should be incorporated into existing directives/regulations. Unless we reform our ways, chaos will deepen. We should apply a limit, drawing a line at the point reached today. It seems that the present system is based on a German approach, which regulates individual, specific issues. Maybe this is also the reason why German academia is traditionally so strong compared to other countries in dealing with EU consumer law issues. However, even in their case, after the collapse of the Allgemeines Landrecht für die Preussischen Staaten (ALR), Germans had to learn that transparency in legislation is of elementary importance. There is a line that should not be crossed. In sum, it would be crucial to summarize existing provisions and not to adopt completely new regulations if they can be added to existing ones.

24.6.4

Step 3 (Individual Level 1): Who Do We Want to Support with this Rule?

The third step (the first individual decision in a case concerning legislation) would be to explore the purposes of the new rule, and especially the point of who we want to support. With thorough and sincere analysis, we can strike a balance between business and consumer interests. It is obvious that businesses should not be lumbered with useless obligations. It is obvious that there is tension between the values of a liberal market and the intrusion into that market which is required for it to function properly. It seems obvious that the present system that allows breaching of contracts easily was not as inspiring for the parties 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Text with EEA relevance). OJ L 158/77. However, later, the Commission continued to create new independent rules, see e.g. Regulation (EU) No. 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union. Text with EEA relevance. OJ L 141/1. 74 M. Fallon and S. Francq, ‘Towards Internationally Mandatory Directives for Consumer Contracts?’, in J. Basedow et al. (Eds.), Private International Law in the International Arena – Liber Amicorum Kurt Siehr, T.M.C. Asser Press, 2000, p. 158; Lajos Vékás, ‘Der Weg zur Vergemeinschaftung des Internationalen Privat und Verfahrensrecht – eine Skizze’, in P. Šarčević et al., (Eds.), Liber Memorialis Petar Šarčevic: Universalism, Tradition And The Individual, Sellier, 2006, pp. 174-175.

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as a properly functioning one could be. Nevertheless, we should allow as much space as possible for the parties themselves to decide their own business. Thus, we have to decide whether to act or not. If we decide to act, we must do so in a way that provides consumers real protection, not a completely useless set of rules. Moreover, we should also grant businesses receive the offset as promised. And this leads us to the next level, the second level of individual questions.

24.6.5

Step 4 (Individual Level 2): Choosing the Most Appropriate Rule

Finally, if we set the basic direction, we must select the most appropriate rule. In this regard, temptation arises from the present rules to provide answers that are very similar to existing approaches. However, after we set the target, i.e. ask the question of ‘who we want to support’, we need to create a set of rules around that frame. Two questions must be answered at this level. Firstly, we have to decide what we want to achieve. E.g. if we find consumers’ rights are harmed en masse by e-sales contracts, we have to regulate e-sales in a way which results in a more balanced system, and, as such, in the fulfilment (sic!) of such contracts. The present system does not lead us in this direction, but lead to a regularly applied kind of ‘money back guarantee’ if the consumer was ‘lucky enough’. From the point of view of business, the same is true: consumers sometimes withdraw without finding fault in goods or services. If we find the consumers’ position weak, we have to create an environment that supports the fulfilment itself, and sanctions in case of default in performance, and especially, in case of a fundamental breach of the contracts drawn up by the business. When we find consumers breach contracts (which is practically allowed, i.e. ‘legally permitted’ presently), we have to act against that practice. Consequently, we needed a performance centred approach instead of a money centred one (in this regard the approach suggested by this paper is different from both the common law approach and also the continental one). Secondly, after we set out our main purpose to make businesses fulfil their duties, the question of how to regulate issues also must be asked. At present, there is no effective system of remedies. Refunds (allowing withdrawal) are not a good solution. In most cases, it would be far better to strictly apply an additional remedy that the consumer would be entitled to in case goods do not arrive, or are late. Allowing withdrawal by parties if they conclude a contract is wrong and encourages them to cheat. We could instead propose a type of sanction that amounts to e.g. 10, 20, 30, or 50% of the purchase price if goods do not arrive in good shape or contain hidden faults. This approach raises several problems. It can be argued that harm to consumers is not this high. However, in certain cases this is not true, for example, purchasing a car. Moreover, the high volume of claims submitted

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by consumers could lead to problems and fraud. In this regard, putting the burden of proof on the consumer may be helpful. Furthermore, adding some specific rules to avoid fraudulent behaviour also seems logical.

24.7

Final Conclusions

It would be naïve to think that the above critiques will be followed by the Commission in the near future. However, the main purpose of this article has been to provoke the thinking of the legislator as well as the thinking of the European academic community and to show that there exists another world outside the regular limits of EU law. It would be a great mistake to blindly follow our own, European path without thinking more progressively. The framework of that path was set twenty to forty years ago, and it is time to re-think fundamental approaches. It is obvious that several patterns in more liberal systems are subject to valid criticism, e.g. the use of punitive redress or class actions, which are continuously debated. The present system of remedies is sometimes defended. But in order to reach a better, more functional system, several of our basic, bad habits must be reviewed. Not only will this lead to better legislation, but also make Europe more competitive in the global economy.

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25

How to Regulate? The Role of Self-Regulation and Co-Regulation

Lóránt Csink* and Annamária Mayer**

25.1

The Necessity to Regulate

‘It is not good that the man should be alone’1 – this truth of the Bible is also confirmed by numerous studies in sociology and psychology. Humans are fundamentally social beings. However, empirical evidence shows that it is not necessarily good to be with others, either. Thus, the fundamental paradox of sociology is that humans are social beings, but life in a community is not necessarily smooth; bellum omnia contra omnes – the war of all against all – constitutes the ‘state of nature’, as Hobbes points out. It is a fundamental recognition that the social relations of human beings – i.e. the description of behaviour expected or to be refrained from when interacting with others – must be regulated. There needs to be an order, an authority that influences the actions of individuals with a view to social coexistence. Consequently, social norms date back to the emergence of human societies. A multitude of norms describe the various forms of correct and expected behaviour, capable of influencing and controlling human behaviour.2 In this context, norms constitute the authority that defines the rules of behaviour. If the objective of a norm is recognised to be the regulation of relationships within society, a norm can be deemed ‘successful’ if it is complied with in general. The occasional breach of a norm in itself does not render the norm unsuccessful. However, the norm becomes pointless if non-compliance reaches a critical threshold. Consider the following example: a traffic sign (e.g. a stop sign) represents a norm as it imposes a mandatory rule of behaviour: ‘stop here and let those travelling the main road pass!’ The purpose of this norm is to make traffic predictable, so that those driving on the main road will know for sure that they will be allowed to pass. Ideally, a driver facing a stop sign does not consider whether or not the given sign makes any sense at its given

*

Associate professor, Pázmány Péter Catholic University, Faculty of Law; Head of unit, Office of the Commissioner for Fundamental Rights. E-mail: [email protected]. ** Legal advisor, Ministry of Justice. E-mail:[email protected]. The authors would like to thank the Institute for Media Studies for their contribution to the preparation of the present paper. 1 Genesis 2; 18. 2 Regarding the obligatory nature of the law, see J. Raz, The Authority of Law: Essays on Law and Morality, Clarendon Press, Oxford, 1979.

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location. It is generally accepted that stop signs serve traffic safety and the possible pointlessness of a given sign is not subject to any scrutiny. Thus, stop signs serve their purpose; drivers comply with the signs, vehicles on the main road are granted priority, and traffic becomes predictable. The success of stop signs is not affected by the fact that some drivers may decide to break the rule and do not stop at the sign. Drivers on the main road can still expect to be given priority by those facing the stop sign, so traffic remains generally predictable. However, if the number of drivers failing to observe the sign reaches a critical threshold, any expectation of priority becomes unreasonable, and the norm will become incapable of serving its purpose (i.e. to regulate traffic). A norm may be prescribed by various measures, as rules of behaviour may be determined by religions, customs, morals, manners, etiquette or even fashion. It is a common feature of all norms that they prescribe rules of behaviour3 and they cannot regulate relationships within society unless they are accepted by individuals. Legal norms constitute a special branch of norms. A legal norm is the order of the legislator (state) that determines the rule describing the expected behaviour and implies a ‘promise’ made by the legislator that the mandatory rule of behaviour will be enforced even by the use of force, if necessary.4 In other words, the distinctive feature that separates legal norms from all other social norms is that legal norms can be enforced by the state.5 It follows that legal norms may not exist without a state. Ever since their conception, states make use of the means of legal regulation (adoption of legal norms) and subject certain fields of social relationships to the rule of legal norms. The next stage of development in history is that the norms regulating different fields of life are organized into a system. The direction of this development shows that legal norms are expected to regulate the relationship between the state and the individual, as well as the relationships between individuals, in a comprehensive manner, instead of sticking to the regulation of certain fields only. However, this expectation does not mean the elimination of other norms, since religious and moral norms certainly have their place even in societies subject to the rule of law. It is clear though that (historic) development

3

4 5

Naturally, legal norms can prescribe norms that are not norms of behaviour; it is not necessary that some people act in a certain manner as a result of the norm. Hart believes that there are secondary rules that apply to the adoption of primary rules, while Dworkin believes that the purpose of some rules is not to ensure a given action but to provide criteria for evaluating a given action (in this context see: Scott J. Shapiro, ‘The Hart-Dworkin Debate. A Short Guide for the Perplexed’, Michigan Law, Public Law and Legal Theory Working Paper Series 2007/77). However, this does not change the fact that the primary purpose of legal norms is the definition of social relations. A.Zs. Varga, Gondolatok a kodifikáció mélyrétegeiről (Thoughts on the Depth of Codification) 3 Magyar Közigazgatás (2011), p. 67. Szabadfalvi József, ‘A jogszabály’, The Law, Jog- és államtud. (1995), p. 54.

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points from the use of particular legal norms toward the emergence of homogenous and closed systems, from fragmentation toward universalism. The state expands regulation to more and more fields of social relationships by the means of law. The following observations have been made so far: 1. the regulation of social relationships is indispensable for human coexistence; 2. rules of behaviour are necessary for the regulation of social relationships; 3. legal norms assumed a prominent role with the emergence of the state; 4. law became a more and more homogenous system through gradual legal development. The question arises if this is the only path for further development, or some other form of regulation may be even more efficient? In other words: is it really necessary for the state to regulate behaviour in every field, or can the ‘top-to-bottom’ (state) regulation be replaced by other forms of regulation in certain fields? The latter option seems to be expedient as the ordinary operation of the market in certain sectors requires the implementation of fast regulatory mechanisms. In such cases, regulation by the state cannot keep up with the pace of changing market and social needs. Changes to such needs often take place at far too high a speed for the legislator to react. A possible answer to this challenge is that the state ‘withdraws’ from its role as regulator to give space for other forms of regulation: self-regulation and co-regulation.

25.2

Definition of Self-Regulation and Co-Regulation

The definition of self-regulation and co-regulation appears straightforward at first, but authorities tend to emphasise different components of the definition. Some believe that self-regulation is a method for regulating behaviour where the relevant organisations and interest groups regulate themselves and the regulatory rules are voluntarily adopted, selfspecified, conduct is self-monitored and rules are self-enforced.6 According to Angela J. Campbell, self-regulation works independently from the state through the voluntary undertaking of market actors, following their own rules of procedure, financed by the participants and without any adverse legal consequence. However, it is not necessarily the case that government involvement is entirely lacking.7 McGonagle offers a simple solution to the dilemma of co-regulation by defining co-regulation as a form of regulation which is softer than the traditional regulatory prototype governed by the state, where emphasis

6 7

I. Bartle and P. Vass, ‘Self-Regulation and the Regulatory State. A Survey of Policy and Practice’, The University of Bath Research Report, 17 (2005), p. 19. A.J. Campbell, ‘Self-Regulation and the Media’, Federal Communications Law Journal (06/15/99), p. 715.

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is put on the cooperation between professionals and state authorities in the regulatory field, and this synergy can be exploited in the field of enforcement as well.8 This paper seeks to examine the relationship between self-regulation and co-regulation, on the one hand, and state regulation, on the other hand, as well as the prevalence of the state component. Hereinafter we use the following working definition for self-regulation: voluntary and flexible determination of operation in a given sector (i.e. the behaviour of actors of a given sector), where regulation is based on the identical interests of the actors, instead of enforcement by the state. To devise a definition for the purposes of this article, co-regulation refers to situations where the regulation required by law is delegated to an industrial – or even self-regulatory – body. The codes of behaviour are accepted by professionals and state regulatory bodies as the result of cooperation.

25.3

The Meaning of Self-Regulation and Co-Regulation in Light of Their Relationship with State Regulation

According to the most simple and generally accepted approach, self-regulation comes closer to the complete lack of legal regulation (no regulation) than to statutory regulation on the regulatory spectrum. While self-regulation is not outside the law, its primary source of legitimacy is not the law. The most important feature of legal norms is that they are obligatory and enforceable. State bodies (as substantial sources of the law) create and recognise legal norms to regulate behaviour. By contrast, a mandatory feature of self-regulation is its voluntariness. Under the framework of pure self-regulation, the subjects weigh the advantages and disadvantages, and decide freely if they want to participate in the self-regulatory regime and if they are willing to be subjected to the self-regulatory mechanism. Legal norms are not adopted to convince their subjects, but to make them obey. When the legal system operates in an ordinary fashion, the subjects do not wonder whether it is ‘worth’ observing the law. By contrast, self-regulation means that a community adopts certain rules to promote specific common interests. The rule adopted does not have any practical importance, unless members of the community actually comply with it, but prudential reasons dictate that the rule will not be complied with, unless the subjects of the self-regulatory system believe that the rule does in fact promote their own interests, at least on a middle term. We do not claim that legislation does not promote common interests. However, it certainly means that the promoted ‘common interest’ is more abstract and distant in the context of legal rules, than in the context of self-regulation – it is not a requirement of legal 8

Final Report Study on Co-Regulation Measures in the Media Sector Study for the European Commission, Directorate Information Society and Media by Hans Bredow Institute, 2006.

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rules that the subjects fully agree with them. Only extreme rejection may prevent legal rules from being applied in practice. In most cases, subjects comply with the provisions of laws/acts, possibly after expressing their reservations in formal or informal ways, because they know that the state’s monopoly on violence supports the given legal rule. By contrast, the threshold is much lower for self-regulation; subjects of self-regulatory systems may find it much easier to arrive at the conclusion that the regime does not serve the common (indirectly their individual) interest, removing themselves from under its scope. In practice, pure self-regulation means that the regulatory regime is based on the voluntary decision of the subjects to regulate certain issues, that any and all external interference by the state or other body is prohibited, and that control may be exercised by the regulated organisations only.9 However, this does not mean that the state would be ‘indifferent’ toward self-regulation. In such cases, members of a self-regulatory regime decide, voluntarily and free of any interference by the state, to adhere to another set of rules that complements existing state regulation. On the basis of the right to self-determination, individuals may freely decide to be bound by certain rules – complementary to legal regulation –, provided that their actions do not violate the provisions of the law. In the context of the traffic regulation example, the Fair Driver Initiative in Hungary is a possible form of self-regulation. Drivers may join the initiative voluntarily by agreeing to be bound by the unwritten rules of driving in addition to the Highway Code, with a view to improving the morale of drivers in general. The situation is somewhat different where the state decides to withdraw from a given area to give space for self-regulation. In such cases, regulation by the subjects is specifically mentioned by the state regulatory regime and legal relevance is attributed thereto. This form is also called self-regulation, although in a sense it was created by the state. Yet another scenario is when the state not only imposes the duty to regulate upon the subjects of the law, but also defines the directions and the framework of such regulation. This is called co-regulation. What role does the state play in the context of self-regulation and co-regulation? First, the state recognises the existence of the self-regulatory regime and that legislation is not the most efficient form of regulating certain fields. Second, the state respects the voluntary nature of self-regulation. Self-regulation promotes ‘bottom-to-top’ regulation, meaning that the actors of individual sectors develop their own rules of ethics and behaviour, which they accept as binding and impose sanctions on those breaching the rules.10 An important aspect in the assessment of the relationship between the state and a self-regulatory system is the question whether 9 Bartle and Vass, op. cit., p. 19. 10 J. Bayer, ‘Az internet tartalomszabályozása Magyarországon. Önszabályozás versus állami szabályozás.’ (Regulation of the Content of the Internet in Hungary), in M. Enyedi Nagy et al. (Eds.), Magyarország médiakönyve 2002, Enamiké, 2002, p. 451.

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the state is constitutionally required to regulate the given field or to maintain certain institutions. Naturally, the state plays a more active role if it is obliged to carry out certain tasks. Consider the example of schools: operating the educational system is the duty of the state. However, the state may decide to delegate the task of developing the curriculum to the self-regulation of the stakeholders, but the state remains obliged to monitor the process and efficiency of the self-regulatory regime, since the overall operation of the system is the responsibility of the state. The situation is different where the state is not required by the constitution to operate any institution. This is the case of media regulation; the freedom of the press and the provision of media content are fundamental rights, and the state is primarily obliged to play a passive role. The state is not obliged to provide any media content,11 but it may not prevent access to the media market. We believe that the state, in such cases, is not subject to any primary obligation to take action, therefore, its interference with the self-regulatory system may be of a lesser degree. Co-regulation is the middle ground between direct state regulation and industrial selfregulation12 and allows for a discourse between the state and the self-regulatory body and for an interaction regarding the regulation. In theory, there are two different forms of co-regulation. In the first scenario, the state transposes an existing mechanism into the state regulatory regime, while the second scenario is when the state defines the legal basis and framework for the self-regulatory process.13 These two forms point into opposite directions. The first form means ‘bottom-to-top’ coregulation, where the state joins the self-regulatory scheme implemented by the market and the civil sector, this form also necessitates self-regulatory bodies to be established for an already regulated – or, as of yet, unregulated – field The second form means ‘top-tobottom’ co-regulation, where the state is the source of regulation (for it defines the objectives and the framework), but it gives space for self-regulation to develop its own rules within the given framework.

11 It followed from Art. 61(4) of the previous Constitution directly that public service media must exist. The Basic Law does not include any reference that could be legitimately construed to suggest that the existence of public service media does not follow from the Basic Law. However, it should be noted that the case-law of the Constitutional Court established a connection between the ‘continuous and undisturbed operation of public service broadcasters and news outlets’ and the right to know data of public interest, Decision 22/1999 (VI. 30) of the Constitutional Court. 12 Self-Regulation of Digital Media Converging on the Internet: Industry Codes of Conduct in Sectoral Analysis by Programme in Comparative Media Law & Policy, Oxford University Centre for Socio-Legal Studies, 2004 (hereinafter Oxford study), p. 84. 13 C. Palzer and A. Scheuer, Self-Regulation, Co-Regulation, Public Regulation, IRIS plus, Strasbourg, 2002. p. 44.

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In the first scenario, co-regulation is a bottom-to-top process, where a mandatory decision regarding the needs of the community is made at the higher levels of the system.14 An example of transposing an existing rule of ethics into the realm of legal regulation is the mandatory use of the emergency warning lights when running into a traffic jam on the motorway. Many drivers turn on the emergency warning lights to let those driving behind know that they will slow down extremely, or even stop, due to a traffic jam. The Ministry of National Development recommends the transposition of this cautionary and polite gesture into the Highway Code. Mandatory legal regulation and the experiencebased regulatory efforts of the stakeholders are simultaneously present in a co-regulatory regime. An advantage of this setup is that the actors involved in the regulatory and enforcement processes better identify with the pursued objectives, increasing thereby the efficiency of rule enforcement.15 Constitutional law has always had some reservations regarding this type of co-regulation, since it lacks democratic legitimacy. The essence of democratic legitimacy is that executive decisions can be traced back to the people – the subject of sovereignty – directly or through the chain of elections and appointments. Democratic legitimacy would be missing (and it would be inconsistent with the rule of law) if the state would grant executive (regulatory) powers to an organisation that was established on a voluntary basis and the executive powers of which cannot be traced back to the voters. For constitutional purposes, a regulatory regime that is independent from the will of its subjects cannot be accepted, unless its source is the executive power. Of course, it is desirable for professional experience and the needs of market actors to be taken into account in the course of exercising executive powers, but the regulatory power itself cannot be delegated to such bodies. The other form of co-regulation satisfies the test of constitutionality, where the executive power defines the objectives to be reached in a normative manner, and self-regulation is allowed to develop the necessary details. Under this form of co-regulation, the task of implementing the objectives defined by the legislator may be handed over to recognised interest groups of the given field.16 This concept has a number of variants in different legal systems. Schulz and Held have investigated co-regulation in the German context.17 In their view, self-regulation in the Anglo-American debate is concerned with ‘reconciliation of private 14 G. Polyák, ‘Hatalomleosztás – Nemzetközi önszabályozási kísérletek. (Distribution of Powers – Attempts for National Self-Regulation), in M. Enyedi Nagy et al. (Ed.), Magyarország médiakönyve 2002, Enamiké, 2002, p. 475. 15 G. Polyák, Európai médiapolitika és médiaszabályozás a digitális korban (European Media Policy and Media Regulation in the Digital Era) in PhD, tanulmányok, 1. PTE – ÁJK Doktori Iskola, Pécs, 2004, p. 318. 16 Polyák, op. cit., p. 316. 17 W. Schulz and T. Held, Regulated Self-Regulation as a Form of Modern Government, Hamburg, Verlag Hans Bredow Institut, 2001.

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interests’ whereas their formulation – regulated self-regulation – is indirect state regulation based on constitutional principles. According to this German concept, the state may play a role in a regulated self-regulatory system, if constitutional rights are to be upheld. The powers that may be delegated to a self-regulatory body depend on whether there are any fundamental rights involved. This combination is known as intentional self-regulation, where the market actors are allowed to adopt economic or social measures, and the state functions as a last resort in imposing sanctions. The French term of co-regulation expresses the shared responsibility of market actors and the state. The same approach is followed in the United Kingdom, where the state interferes if the market actors fail to take action within their own self-regulatory competence. The third approach – known as audited co-regulation – is followed in the United States, where auditing may be carried out by an independent body according to a standard, or by an individual company according to pre-determined provisions.18 This approach is most frequently understood as self-regulation with the involvement of the state or a public authority. According to Bartle and Wass this is the most common perception of co-regulation and it can be manifested in a number of ways: – Co-operation between public authority and industry on regulatory matters; – The delegation of statutory powers by a public authority to an industry or professionled body, or a self-regulatory organisation undertaking regulatory tasks with a statutory body behind it; – A public authority sets an industry/profession specific tasks with statutory backing; – A public authority encourages, reviews, approves or endorses self-regulatory schemes developed by the industry, though normally not backed by the full force of a statute. Co-regulation also includes cooperation between companies, regulators and associations in various working groups.

25.4

Models Describing the Position of Self-Regulation and Co-Regulation within the Legal System

There are numerous models that describe the place of self-regulation and co-regulation within the regulatory system and in relation to the legal system. The basic model defines the following stages depending on the extent of regulation:19 1. No regulation: there is no explicit control over the organisation; 2. Self-regulation: the rules are laid down and enforced by the regulated bodies; 18 Oxford study, pp. 9-12. 19 Bartle and Vass, op. cit., p. 20.

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3. Co-regulation: the rules are defined and enforced by the state and the regulated bodies jointly; 4. Statutory regulation: the rules are laid down and enforced by the state. The basic model is accepted by the European Commission. According to the Commission, self-regulation grants the possibility for economic operators, the social partners, NGOs or associations to adopt amongst themselves and for themselves common guidelines at European level (particularly codes of best practices or sectoral agreements).20 While several international organisations and even the Australian legal system accept the basic model, they usually apply a somewhat more detailed model. In Australia, one more component – quasi-regulation – is added to the above regulatory scale between self-regulation and coregulation. Quasi-regulation describes those situations where industry adopts or uses codes of conduct in which government involvement extends to matters such as drafting its provisions or endorsing the code, but the enforcement of the code is left to the industry. Under the Australian model, the most important difference between quasi-regulation and selfregulation is that government involvement in the former implies that legislation may be introduced if industry does not satisfactorily comply with the code. According to the Australian approach, pure self-regulation means that the rules are adopted and implemented by the given sector without any interference from the government.21 Within the system of alternative regulatory means described by the British Better Regulation Task Force (BRTF) in 2003, self-regulation is halfway between the information and education based system and the incentive based structure. The BRTF model defines the following stages in the order of moving from no intervention toward strict regulation: 1. No regulation: there are no formal government measures; 2. Information and education: enables more informed decisions and can change attitudes – ‘hearts and minds’; 3. Self-regulation: codes are developed through sectoral negotiations and enforced by the regulated organisations; 4. Incentive based structure: the encouragement of particular types of behaviour. Financial instruments, for example price caps, taxes are often used; 5. Classic regulation: rules prescribing a particular conduct. BRTF defines self-regulation as a set of voluntary rules created by their subjects.22

20 Report from the Commission ‘Better lawmaking 2003’ pursuant to Art. 9 of the Protocol on the application of the principles of subsidiarity and proportionality, 11th Report, 2003, p. 11. 21 Bartle and Vass, op. cit., p. 23. 22 http://webarchive.nationalarchives.gov.uk/20100407162704/http:/archive.cabinetoffice.gov.uk/brc/upload/ assets/www.brc.gov.uk/principlesleaflet.pdf.

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In a report – similar to that of the BRTF – on alternative regulatory mechanisms, the OECD defined a scheme that includes performance-based regulation, process-based regulation, co-regulation, economic instruments, information and education guidelines and voluntary approaches. The OECD model describes the range of all means of regulatory and non-regulatory policy based on the extent of government interference within a given sector. While it does not provide an explicit definition of self-regulation, it is implicit within ‘voluntary approaches’ to regulation. In addition to the rather practical models mentioned above, there are several academic approaches concerning the place of self-regulation in relation to the legal system. While the diversity of the various systems describing the possible complexity a self-regulatory scheme is endless, one of these multidimensional models states that state regulation and self-regulation overlap in two categories. One such category is self-regulation recognised by the state, where regulation may be granted statutory power ex-post, if necessary. The other overlapping field is mandatory self-regulation, where regulation is developed on the basis of ex ante requirements, and the institutions and procedures subject to self-regulation are specified by law. The multidimensional model describes the following stages (moving from no regulation toward strict regulation):23 1. No regulation: there is no interference by the state; 2. Pure self-regulation: there is no statutory basis, the role of the state is limited to informal supervision; 3. State approved self-regulation (ex post):: the state approves the code and monitors its implementation, but the code is not supported by the law in general; 4. Statutory self-regulation (ex ante): the law defines the fields subject to self-regulation, and the adopted codes can acquire the status of law; 5. Co-regulation: the regulation required by law is delegated to a sectoral body. Codes are created in cooperation between industry and state bodies and approved by the government; 6. Statutory regulation: regulation is defined, controlled, and enforced by the state or a state body. The multidimensional model provides a more detailed description of the possible methods of self-regulation than the basic model. It is a common solution to use state involvement as support for the self-regulatory scheme, so it cannot be omitted from any model. While in an ex post regime, rules are not adopted and enforced by the regulated bodies independently, since state approval is a requirement, it can be established in general that the state confirms a top-to-bottom initiative. In an ex ante regime, the fields to be regulated are not identified by the regulated bodies, but they are granted the opportunity by the state to 23 Bartle and Vass, op. cit., p. 29.

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regulate a given field, and the rules adopted by such bodies have legal force, so it is reasonable to assume that these rules can be enforced and applied more efficiently. Statutory selfregulation comes quite close to co-regulation, the main difference being that the rules are adopted independently, with state approval, or jointly with the agreement of the state. Within the framework of the basic model, state approved and statutory self-regulation would probably be classified as co-regulation. There is no general agreement regarding the place of self-regulation within the regulatory scale, but the prevalence of several similarities between the various models is unquestionable. The line between self-regulation and state regulation is blurry, the terms used are not in a thesis-antithesis relationship and the mechanisms used in practice are often difficult to assign to the general categories available. A summary overview of the models describing the scale of regulatory measures is provided in the table below: Basic model

No regulation

Self-regula- Co-regulation tion

Statutory regulation

AusNo regulatralian tion model

Self-regula- Quasi-regula- Co-regulation tion tion

British No regulamodel tion

Information Self-regula- IncentiveClassic regulation and educa- tion based struction ture

OECD Voluntary model approaches

Information Economic Co-regulaand educa- instruments tion tion guidelines

Performance and process-based regulation

Multi- No reguladimen- tion sional model

Pure selfregulation

Co-regulation

25.5

State-recog- Statutory nised selfself-regularegulation tion

Statutory regulation

Statutory regulation

The Advantages and Disadvantages of Self-Regulation and Co-Regulation

The frequently mentioned advantages of self-regulation over statutory regulation include higher efficiency, flexibility, stronger incentives and cost reduction. The same advantages are also attributed to co-regulation, with the additional advantages that, in the case of coregulation, the state not only provides a legal framework and supervision for the system, but also assumes the ultimate responsibility for it, meaning that the state does not waive its claim for the achievement of state and professional policy objectives.24 24 Palzer and Scheuer, op. cit., p. 7.

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Efficiency – i.e. the higher level of regulatory efficiency – is the most frequently mentioned argument, which is based on the assumption that market actors have special expertise and information – known as collection expertise – regarding their given sector that cannot be acquired by the government. This factor may be of exceptional importance in fields where special technical knowledge is needed to adopt the appropriate rules.25 Legislators are rarely in a position that allows them to obtain all necessary sectoral information, they tend to know the market mechanisms less thoroughly, and the use of ‘comparative forces’ offered by the knowledge and expertise of parties directly involved in the problems may be particularly advantageous in such cases.26 The second advantage of self-regulation and co-regulation is flexibility. A less formal professional organisation can amend and adopt its rules to an ever changing environment more easily than the government. Legislation and the amendment of legal acts takes longer and involves a slower and more complicated process and the overly general rules thus adopted are not always capable of solving specific problems. The third advantage is the incentivizing power over the market. It is frequently argued that rules adopted by actors of a given market are regarded as more reasonable and acceptable by other actors on the market – not least out of professional courtesy – than traditional statutory regulation.27 A possible consequence of self-regulation is that it raises the professional level of quality in the affected organisations, prompts experts of the profession to think about the development of various norms28 and encourages them to solve certain problems ‘in-house’ instead of addressing the regulator more frequently than necessary. Thus, the administrative burden can also be reduced. It follows from the above considerations that the use of self-regulation is less costly for the state than the use of direct regulation, as the costs of developing and enforcing the rules are borne by the regulated sector. This argument – frequently raised in the context of the American approach – is primarily applicable to co-regulation, but may also arise in the context of self-regulation, in case the client trusts the self-regulatory body and refrains from taking further legal action. While the government does have certain supervisory duties, self-regulatory systems require less resources, thus, the regulatory system can operate more efficiently and flexibly, and, due to resulting savings, more resources can be devoted to innovation and the reduction of prices of consumer services. Parallel to the above-mentioned advantages, some disadvantages also arise. In response to the arguments emphasising the importance of collective expertise, Peter Swire raises the question of how and why the sectoral actors would use that expertise for the benefit 25 26 27 28

Campbell, op. cit., p. 715. Bartle and Vass, op. cit., p. 36. Campbell, op. cit., p. 716. A. Puddephatt, The Importance of Self-Regulation of the Media in Upholding Freedom of Expression. UNESCO, Brasilia Office SERIES CI Debates. No. 9, 2011, 12.

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of the public, instead of trying to gain profit.29 Swire also questions that the sectoral actors would comply with the rules adopted by them with higher probability than with other instructions given by outsiders, as he believes that market pressures on the government and willingness of the government to take market considerations into account are apparent in the legislative process. Swire argues that, if the government leaves regulation to the market, self-regulation may turn into ‘self-service’, and selfish market interests may prevail over the interests of citizens, consumers and the actors of other sectors. Others note that self-regulatory bodies may not be able to free themselves from market pressures that could otherwise be averted by the government through the use of adequate guarantees.30 The position that self-regulation relieves the state from administrative burdens can be maintained in the above cases only, but the decisions brought this way are not necessarily consistent with the purpose of statutory regulation. This phenomenon is known as the ‘regulatory bias’, where the given sectoral regulator regulates only those fields that are important and advantageous for their own sake.31 The conflicts of interest regarding enforcement also constitute an argument against self-regulation, for it seems to be unlikely that the regulated sector would spare no expense to impose sanctions on itself. It is also unclear that the self-regulatory bodies would be capable of using adequate measures to ensure compliance with their rules; until no sufficient incentives against ‘misbehaving’ market actors are applied, ‘good’ market actors who comply with the applicable rules may suffer disadvantages in the market competition.32 Self-regulatory regimes may be taken over and dominated by highly influential market actors, which scenario may be even used to restrict market competition.33 If a media outlet can realise more profit by ignoring the provisions of the self-regulatory regime, it will probably follow its own financial interests, unless doing so would not reflect on its behaviour in the eyes of the customers or the reputation of the company. This situation is known as the ‘free rider problem’, when certain members of a profession do not join a self-regulatory initiative, or they do join the initiative, but fail to observe the adopted rules of behaviour. Some argue that self-regulation is the hotbed of counter-competitive behaviour for numerous reasons. The first reason is the possible use of pressure by major market actors as mentioned above; secondly, because competitors may agree under the disguise of selfregulation on the course of action to be followed in the future, while such agreements fall within the scope of anti-trust regulations. Another argument is the creation of barriers against market entry. Since self-regulatory and co-regulatory schemes are usually voluntary,

29 Campbell, op. cit., p. 716. 30 Campbell, op. cit., p. 717. 31 J. Segal, ‘Institutional Self-Regulation: What Should Be the Role of the Regulator?’, Twilight Seminar, Canberra, 2001, p. 5. 32 Campbell, op. cit., p. 718. 33 Bartle and Vass, op. cit., p. 37.

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the rules do not apply to those who do not join the system and this may give rise to concerns on the side of the consumers. By contrast, complete coverage – i.e. a scheme that applies to all actors of the sector – may even restrict market competition by imposing various requirements on new entrants. Another argument against self-regulation is that significant differences are discernable in the performance of the various systems, while their frequently noted efficiency cannot be measured. Cost-efficiency may be countered by the argument that co-regulation in fact duplicates the institutional environment, so it does not reduce but much rather increases respective costs on the long run.34 Thus, transparency and public accountability are also requirements toward such systems.35 Significant problems for self-regulation and co-regulation may arise on the side of consumers due to the lack of perceived credibility and trust in the system.36 The existence of numerous self-regulatory or co-regulatory bodies, the use of different codes or the existence of overlaps between the competences of various bodies may cause problems to consumers and market actors alike, for situations may arise where an applicant cannot decide which body he or she should turn to with a complaint, and even market actors may become confused regarding their own rights and obligations.37

25.6

Summary: The Place of Self-Regulation and Co-Regulation within the Legal System

After reviewing the meaning of self-regulation and co-regulation, we made the following observations: 1. The fundamental purpose of legal regulation is the formation of various relationships within society. To this end, the legislator lays down rules of behaviour in an abstract manner and for the future. However, legislation is not the only available means of shaping social relationships. Enabling self-regulation and co-regulation by the legislator is also a possible route; it allows the subjects of regulation to adopt norms for themselves, with (state) legal force being attached to such norms. 2. Self-regulation means the regulation of the operation of a given sector (or of the behaviour of actors in the given sector) in a flexible manner and on the basis of voluntary submission and the identical interests of the subjects, instead of by prescription of the executive power.

34 35 36 37

Palzer and Scheuer, op. cit., p. 7. Bartle and Vass, op. cit., p. 38. Segal, op. cit., p. 5. www.bis.gov.uk/policies/bre/better-regulation-framework/alternatives-to-regulation/choose-the-alternative/self-regulation/advantages-and-disadvantages-of-self-regulation.

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3. Self-regulation comes closer to the complete lack of legal regulation than to statutory regulation. This does not mean that self-regulation would fall beyond the realm of the law or that the state would be indifferent toward it, but the law is not the primary source of legitimacy for this regulatory solution. Self-regulation complements state regulation in the sense that its subjects agree to be bound by another set of rules (i.e. self-regulatory rules) that operate along with statutory regulation and apply to issues not regulated by the law. On the basis of the right to self-determination, one may freely decide to be bound by certain rules – complementary to legal regulation –, provided that their actions do not violate the provisions of the law. 4. As for the distinction between self-regulation and co-regulation, state involvement is indispensable for the latter. Co-regulation is halfway between direct state regulation and sectoral self-regulation38 that operates in situations where the regulatory power prescribed by law is delegated to sectoral bodies – even to self-regulatory bodies. Thus, the applicable regulatory scheme is created in cooperation between professional and state bodies. Consequently, the state plays a regulatory role in co-regulated fields. 5. There is no clear line between self-regulation and co-regulation, since – apart from pure self-regulation – the presence of the state cannot be construed as a distinctive feature; the difference between the two methods is more quantitative than qualitative. 6. The main objective – and benefit – of self-regulation is to let the regulator know that the possibly too wide margin of action may have an adverse impact on the achievement of statutory objectives. 7. Co-regulation may play an important role in fields where state regulation and presence is required, the duty to regulate is imposed by law, and the regulatory activity can be outsourced to professional bodies only because of the above-mentioned benefits of the self-regulatory mechanisms, so that state supervision is always in place to serve as the ultimate guardian of the public interest. On the basis of the above observations, we attempt to define the situations where selfregulation and co-regulation may be used as viable alternatives to traditional legal regulation. However, it must be noted that the need for state administration and the possible extent of involving market actors in the regulatory process tends to depend on the given social circumstances and cultural settings. Legislation cannot ‘create’ culture or quality – this belongs to the field of ethics –, but it can create the circumstances that allow for the emergence of culture and quality. Self-restraint and withdrawal shown in the context of state involvement does not mean the lack of regulation, but only the repression of its official nature. This does not mean irresponsible decision-making or endangering the rule of law or professionalism, but the self-criticism of the state – i.e. the acceptance of its own limita38 Oxford study, p. 84.

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tions. It is also a clear sign of opening toward the market and society, which may produce a re-evaluated, simplified, and probably efficient regulatory scheme by involving more specialized professional expertise in the regulatory process. After reaching the conclusions described above, the following question needs to be answered: when should self-regulation be used, i.e. when is self-regulation better suited to settle social relations than legal regulation? The state does not face this question in the context of pure self-regulation, where the subjects decide for themselves (formally or informally) and regardless of the state that they agree to be bound by a set of rules. In this sense, pure self-regulation is independent from state regulation; there are no overlaps between the roles of the two regulators. The situation is different when the state deliberately ‘refrains’ from regulating a given field and gives space for self-regulation. Thus, the question should be posed as follows: when should the state refrain from regulation and allow the stakeholder to settle the issue by self-regulation? We believe that numerous aspects must be taken into account to answer this question. 1. The first aspect is subsidiarity. Occam’s razor offers important guidance when choosing between legal regulation and self-regulation39; when choosing from among various possible correct solutions, one should choose the simplest solution. In the context of legal regulation, overregulation is a permanent ‘temptation’ for the state, while selfregulation – as discussed above in detail – is more flexible, efficient and closer to the stakeholders. In other words, if legal regulation and self-regulation is equally suitable for regulating the given field, self-regulation should be preferred. 2. It follows from point 1 that one has to consider if self-regulation and state regulation is equally suitable for achieving the desired objective. Thus, the second criterion is suitability; is self-regulation suitable for regulating a given social relationship? It seems difficult to offer general guidance in this respect. The level of development of the field (sector) to be regulated, the market culture, the number and motivation of stakeholders, and other aspects have to be considered to decide whether or not the stakeholders are ready and capable of developing rules under the framework of selfregulation and to what extent the above-mentioned problem of ‘regulatory bias’ may arise. 3. The state must always bear in mind that the use of self-regulation may not jeopardise the achievement of the objectives of the state or the performance of its obligations regarding the protection of various institutions and fundamental rights. The constitution imposes numerous duties on the state. Performance of these duties may not be omitted by claiming that the legislative framework was ‘relieved’ of the regulation of a given field. Thus, it must be also considered to what extent the stakeholders are capable of 39 ‘Pluralitas non est ponenda sine necessitate’ (‘Plurality should not be posited without necessity’).

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ensuring compliance with the rules adopted by them. Enforcement in the field of selfregulation may give rise to concerns due to the possible existence of bias and the limited means of sanctioning in comparison to those of the state. Thus, the state may not give up legal regulation fully where it is subject to a constitutional duty. The stronger the constitutional relationship between the state and the field to be regulated, the less space can be granted for self-regulation.40 Consequently, the third criterion is the existence of a constitutional duty on the side of the state. It is our position that the choice between the use of legal regulation and self-regulation should be by the due consideration of the three criteria mentioned above.

40 A practical example: the state cannot give the keeping of public order to the hand of self-regulation, even if the population could be organised enough and the stakeholders would be capable of developing the rules of policing (thereby meeting the first two criteria). Maintaining public order is a constitutional duty of the state, and the risks associated with the release of this field from the realm of legal regulation cannot be undertaken in a constitutional manner.

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The Possibilities of the Restraint of Media Content Prior to Publication

András Koltay* One of the cornerstones of the freedom of the press is that the censorship of media content is not permissible. Of course, the adoption of this principle depends, to a large extent, on what we regard as censorship and how can we differentiate it from constitutionally allowed prior restraints. In Part I I shall attempt to distinguish between prior restraints and a posteriori restrictions, i. e. restrictions applied subsequently to publication and then classify the forms of the former type of restriction. In Part II, I shall discuss in greater detail the relevant regulations and constitutional concepts of England, the United States and Hungary and mention the key decisions of the European Court of Human Rights (ECtHR) pertaining to the subject.1 This review is intended to provide evidence that prior restraints exist and are constitutionally permissible to a greater extent than we might expect.

26.1

26.1.1

The Classification of the Forms of Restriction Prior to Publication

The Distinction between Censorship and Liability after Publication

In a certain sense, liability after publication imposes a greater burden on the press: in the event of an infringement it is uncertain whether court proceedings will be initiated and if so, the decision and the amount of damages cannot be foreseen. By contrast, in the case of prior restraint, the only sanction (in the examined legal systems) is the prohibition of publication.

* 1

Associate professor (Pázmány Péter Catholic University, Faculty of Law and Political Sciences, Budapest). Member of the Media Council. E-mail: [email protected]. The selection of the presented legal systems may seem arbitrary. Nevertheless, Hungary was an obvious choice, and the very special approach of the English and US legal systems deserve a detailed analysis. The United Kingdom was involved in the most important ECtHR decisions regarding the examined issues, and the US free speech law seems to be more and more influential in European legal debates and the development of the free speech doctrine.

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András Koltay As the US Supreme Court noted in the Nebraska Press Association case,2 ‘[i]f it can be said that a threat of criminal or civil sanctions after publication “chills” speech, prior restraint “freezes” it at least for the time.’3 It is possible that the court and Bickel were not quite precise, because the general practice of consistently administering severe punishments is equally capable of leading to self-censorship and, consequently, to de facto restraining publication. Our misgivings towards all forms of prior restraint are rooted in history rather than rational considerations: any prior restraint of publication awakens bad memories in the public consciousness, making a mockery of hundreds of years of historical tradition. It is therefore necessary to make a conceptual distinction between (inadmissible) state censorship and (in England and in the US narrowly admissible) prior restraint. Another argument against prior restraint is that, in the absence of such, all ideas may be published at least on one occasion and the law may only prohibit their further distribution. Given the regulations of the present, this argument is hardly effective, since today the forms of prior restraint are only applicable in respect of content that is clearly illegal and has been qualified as such by the court (publication of state secrets, infringement of privacy), and there is general agreement that the publication of such does not serve the interests of the community and so, due to the harm it is capable of inflicting, such publication does not deserve even a single chance.

26.1.2

Typology of Restrictions Prior to Publication

In the following I shall attempt to classify the forms of the restriction of media content prior to publication. Among these, licensing and the duty of registration apply not to any individual content item, but to the market entry of a service provider in general and therefore we tend not to regard them as instances of the phenomenon of prior restraint. To date, the system of licensing as a precondition to the market entry of media service providers (the start of the provision of media services) is a generally practiced approach. The primary reason for this was originally the scarcity of the frequencies indispensable for the distribution of media services. With the advent of the digital switchover all over Europe, however, this scarcity will soon be a thing of the past. In the case of radio media services, the use of analogue frequencies and, thus, the survival of licensing systems, is still a general phenomenon. In fact, the problem of bandwith and the access to new digital platforms or for example search engines seem to be capable to reproduce the scarcity problem.

2 3

Nebraska Press Association v. Stuart, 427 U.S. 539 at 559, 1976. Citing A.M. Bickel, The Morality of Consent, New Haven, Yale University Press, Vol. 61, 1975.

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Media services that use analogue frequencies are granted the license for media service provision on the basis of the tender organised by the state media authority in many legal systems. This could be regarded as a prior restraint of market entry; however, if the appropriate legal guarantees are in place, such restraint is constitutionally acceptable all over Europe. As paragraph 1 of Article 10 of the European Convention of Human Rights (ECHR) states, ‘This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.’ Accordingly, the jurisprudence of the ECtHR also permits the maintenance of such licensing systems. Somewhat similar to licensing is the duty of registration,4 which has two forms. Registration is a simple administrative act, most often consisting of just providing the basic data of the press product or media service (which do not need a licence). If, however, the regulations stipulate registration as a condition for market entry, it may be viewed as similar to licensing, since it is the act that institutes the right to provide the service; i.e. in the absence of registration the service may not be launched. The other form of registration is the administrative duty that is independent from the right, i.e. the latter subsists even if registration is not performed; however, it is the duty of the service provider to register certain data. This latter form cannot be perceived as prior restraint, since the service may be launched independently from registration.5 Registration is an administrative act, but in theory, it could have severe effects leading to censorship if the law is applied in an arbitrary manner. The reasons for maintaining it include the interests of the various services, too, as it provides the easiest possibility for preventing market problems arising from using similar or identical names for similar services. The existence of an up-to-date public register is also necessary for the oversight of the services by the authorities or the courts. Several countries reject this solution, while others have been applying it for a long time; if the appropriate legal guarantees are in place, registration and censorship are clearly distinguishable from each other. In the typology, censorship and prior restraints deserve a more detailed analysis, as they are more closely connected to the restriction of specific contents and are therefore more sensitive from a constitutional point of view. 4 5

In English legal terminology, ‘registration’ can also be considered as a form of licensing, though it is different in many important aspects, as discussed in the following paragraphs. Both of the above mentioned registration systems are present in Hungarian media regulation. In the case of linear media services (television and radio), registration is a precondition to the start of operation (Arts. 41-42 of Act CLXXXV of 2010 on Media Services and Mass Media), while in the case of press products – in contrast to the previous regulation (Para. (2) of Art. 12 of Act II of 1986 on the Press) – publication may be started and pursued independently from registration, although registration has remained mandatory (Arts. 41, 45-46 of Act CLXXXV of 2010 on Media Services and Mass Media). Registration is a purely formal, administrative process that does not include any examination of the substance or merit of the service, i.e. it is not ‘licensing’. The regulations only provide for a formal examination during the registration process; the authority has no discretion to adjudge the service; i.e., if the conditions prescribed by the law are met then the authority is required to register the service.

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26.1.3

The ‘Historical’ Censorship

The legal term ‘censorship’ means the intervention of the state into the content published by the media. During the course of the historical development of the concept of the freedom of the press, it became a generally accepted notion that ‘censorship’ – as prior and arbitrary intervention into the content – is not permissible, while ex post accountability for the publication of infringing contents is acceptable. The licensing requirement for launching newspapers and official censorship had been formally lifted in England in 1694 and, thanks to Blackstone, the notion that the freedom of the press means freedom from prior restraint became generally accepted. ‘The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.’6 In Hungary, the abolition of censorship was the first of the twelve demands of the young revolutionaries in the Hungarian capital at the beginning of the revolution against the Austrian Emperor in March 1848. A good half a century earlier, in the late 18th century, the rules of press censorship had been tightened. The gradually increasing severity of censorship starting with 1793 put a strong brake on the development of newspapers and periodicals reflecting the Hungarian Enlightenment and halted it entirely with the thwarting of the Jacobian movement. The Emperor’s decree of 25 June 1793 declared the auditing and licensing of the operation of printing presses to be a royal privilege. By 1795 all periodicals had ceased, the number of newspapers declined and their content became drab. According to a royal patent of 1806, opening book-stores also required the permission of the sovereign. On the basis of the order of the Chancery of 5 June 1818, the business of booksellers and libraries was put under special surveillance. Two forms of censorship had evolved: revision and censorship proper.7 ‘Revision’, as provided for by the Sovereign Court’s decree of 18 April 1793, consisted of controlling the books and press products imported from abroad. Only books and newspapers approved by the central censorship office were allowed to pass the border. ‘Censorship’, as provided for by the decree of 25 February 1795, consisted of prior approval by the official censor, including also the post-auditing of books submitted as deposit copies. According to the decree of 18 April 1793, all printing presses were required to hand over three copies of their publications to the censor. The publications were reviewed and, if irregularities (political content unacceptable for the regime) were detected, the competent censor was held liable; this ensured that censors proceeded with utmost care during the course of their work.

6 7

W. Blackstone, Commentaries on the Laws of England, 16th edn, Vol. 4, London, 1825 (first published: 17651769) pp. 151-152. M. Bényei: ‘Reformkori országgyűlések a sajtószabadságról’ [The National Assemblies of the Age of Reform on the Freedom of the Press], 164 Debrecen (1994), pp. 15-17.

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Historically, therefore, the concept of censorship had been clearly linked to the state, the potential apparatus of oppression capable of thwarting the freedom of the press. In the modern world of the media, however, from the second half of the 20th century, the scope of the concept was broadened considerably, and censorship, as a legal term, is used in a much wider sense today than previously. On the one hand, the concept of censorship today is not linked uniquely to restraint by the state, since various private interests are also capable of restricting media content, and, on the other hand, censorship is not necessarily a result of external forces, i.e. internal censorship or ‘self-censorship’ also has to be reckoned with. According to Frederick Schauer, the meaning of the concept of ‘censorship’ has become hazy.8 On the one hand, censorship may result not only from the actions of the state, but from other phenomena of the operation of society, too. Censorship may, of course, still be initiated by the state (according to Schauer’s example, this was the case when a Cincinnati art centre initiated criminal proceedings because of the display of Robert Mapplethorpe’s pictures), but it may be initiated by private enterprises, too (e.g. if General Motors fires employees who publicly criticise the reliability of Chevrolet cars or if the editor of a newspaper changes the content of an article written by a subordinate). Also, censorship may be direct (if the state or another party expressly intervenes into already finished content) or indirect (e.g. if the state arbitrarily deprives certain artists from state support granted to the arts and thereby these artists are unable to express their views to the public). We may also regard it as an instance of censorship when, due to the opinions – e.g. hate speech – directed at them, someone chooses not to participate in the public debate; this is the so-called silencing effect. At the same time, the borderline between censorship and acceptable intervention has become blurred. If a picture is removed from the wall of the museum, not by the police or a court of law but by the curator of the exhibition, claiming that it would be a mistake to display that picture, we would tend to treat this issue as belonging under the sole discretion of the curator in question, although its effect is the same as that of the procedure of the authorities. If the dean of a university tells professors what to teach and how to teach it, we might regard this as censorship, while if the professor decides not to speak about a subject that is considered important by others, then this is deemed a part of the freedom of teaching, although, in respect of the students, the effect may be the same in both cases. According to Schauer, the question is whether the decision of the curator should be preferred over the decision of the state, or whether the forces of the free market should be given preference over the forces of politics.9 These questions lead us away from the issue

8 9

F. Schauer, ‘The Ontology of Censorship’, in R.C. Post (Ed.), Censorship and Silencing – the Practices of Cultural Regulation, Getty Research Institute for the History of Art and the Humanities, 1998, pp. 147-168. Ibid., p. 162.

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of censorship: they are about the functions and decisions of institutions created and maintained by the state which nevertheless enjoy autonomy (arts foundations, schools, libraries, etc.).

26.1.4

State Censorship vs. Private and Self-Censorship

From the point of view of our investigation, the manifestations of so-called private or selfcensorship cannot be regarded as forms of prior restraint either. The concept of censorship is historically tied to a state body (authority, court of law). The media themselves, however, can also engage in ‘screening’ activities which, when all is said and done, are rather similar to censorship. This is conceivable in several ways and situations. On the one hand, the media may refuse to publish a particular text (article) or recording, or may refrain from discussing certain topics on the basis of the given medium’s general programming policy, editorial line or interests. This is a voluntary decision on the side of the media, albeit one that bars certain content from the given public forum. On the other hand, due to external (legal, political, social) circumstances, the media may decide that it is wiser to avoid confrontation, the dangers of legal proceedings or informal political attempts to intervene, and to refrain – although involuntarily and against its will – from discussing certain topics and affairs. It is this latter type of restraint, caused by indirect force, that we tend to regard as self-censorship, even though the former is an almost everyday phenomenon in the media. At the same time, regulations that are not sufficiently precise may also lead to selfcensorship. In the Lakewood case,10 the US Supreme Court ruled that the uncertain standards of the issuing of permits (for the placement of newsracks on public grounds), i.e. the discretion granted to the issuer of the permits, prompts the applicant for the permit to exercise self-censorship and, consequently, is constitutionally unacceptable. It is also conceivable that the law itself demands the publication of certain content. Examples for this are the statements published as a result of the exercise of the right of reply or the obligation of public media service providers to publish political advertisements during election periods. There is no general right of access towards the media available to all; however, if a media provider complies with the provisions applicable to its operation, it cannot be sued successfully for refusing to publish certain contents.11 As we have seen, intervention into the freedom of the media may not only come from the outside; it may also originate from within. It is a basic truth that the media, which costs a pretty penny, are sustained not by the readers, listeners and viewers, but by the advertisers. 10 City of Lakewood v. Plain Dealer Publishing Co., 486 US 750 (1988). 11 M.E. Price, ‘An Access Taxonomy’, in A. Sajó and M.E. Price (Eds.), Rights of Access to the Media, 5th edn, Kluwer Law International, Boston, 1996.

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The logical inference lends itself that, on the basis of the business nature of the enterprise, it is not the articles and programmes produced by the media that are the ‘goods’ offered for sale. If this were not so then the media – at least in the present form and to the present extent – could not sustain themselves. The ‘goods’ are actually the viewers, the listeners and the readers who are offered to the advertisers for advertising fees directly proportionate to their quantity. The reason for offering popular products, i.e. newspapers and programmes, is to attract many prospective customers and turn them into consumers of the given medium and, thus, the advertisements carried by it. The advertisers are the primary force behind the entire process, even if their effect is usually indirect and remains unperceived. In the market, where large amounts of money are at risk, tough rules prevail: advertisers like to see their ads appear in the media environment they consider appropriate, if possible, close to programmes that are popular, non-controversial and entertaining and which emanate peace and bliss or, on the contrary, generate excitement and tension without any real risk. Show programmes, series, game shows, magazine programmes and action movies are the perfect vehicle for this; much less so are programmes that dwell on real problems, involve investigative journalism or higher culture or are simply of interest to a smaller segment of the population’s strata without significant purchasing power.12 On the level of the large, mainstream media (nationwide television services); this leads to the homogenisation of the offerings of the competing programme flows. Free competition, which allows the operation of several competing media providers, is primarily conducive to quantity, but not necessarily to quality. Advertisers categorise their potential customers (the target group) on the basis of financial situation (purchasing power), suggestibility and other characteristics that hardly fit the democratic principle of ‘one man, one vote’,13 or the constitutional right to equality. Nevertheless, private censorship applied on the basis of subordination to maximising profits (although it may just as well be a result of the personal interests or political convictions of the owners or employees of the media, which correspond to the interests of the advertisers) cannot be identified with external censorship exercised by the powers that be. In the case of the former there is no state despotism, nor any otherwise acceptable external intervention closely scrutinized in the light of legal guarantees. Under the rule of law,

12 R.W. McChesney and B. Scott (Eds.), Our Unfree Press – 100 Years of Radical Media Criticism, New Press, New York, 2004, pp. 119-176; E.C. Baker, Advertising and a Democratic Press, Princeton University Press, 1994; R.K.L. Collins and D.M. Skover, The Death of Discourse, Carolina Academic Publishers, 2005; D. Croteau and W. Hoynes, The Business of Media – Corporate Media and the Public Interest, Thousand Oaks, and London, New Delhi: Pine Forge Press, 2006; E.S. Herman and N. Chomsky, Manufacturing Consent: The Political Economy of the Mass Media, Pantheon Books, New York, 1988; R.M. McChesney, The Problem of the Media. US Communication Politics in the 21st Century, Monthly Review Press, New York, 2004; Lawrence Soley, Censorship, Inc. – The Corporate Threat to Free Speech in the United States, Monthly Review Press, New York, 2002. 13 O.M. Fiss, The Irony of Free Speech, Harvard University Press, Cambridge, Massachusetts, 1996, p. 54.

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censorship has long been a thing of the past in any case. Its new form, however, private censorship indirectly exerted by business interest groups ordering the advertisements, has a similar effect as its ‘ugly sibling’, the original, express form of censorship based on direct external force: it may present major obstacles to, or may even render impossible, the fulfilment of the public duties of the media. According to Jürgen Habermas: [T]he newspaper, as it developed into a capitalist undertaking, became enmeshed in a web of interests extraneous to business that sought to exercise influence upon it. The history of the big daily papers in the second half of the nineteenth century proves that the press itself became able to be manipulated to the extent that it became commercialised. Ever since the marketing of the editorial section became interdependent with that of the advertising section, the press (until then an institution of private people insofar as they constituted a public) became an institution of certain participants in the public sphere in their capacity as private individuals; that is, it became the gate through which privileged private interests invaded the public sphere.14 On the basis of the consistent practice of the ECtHR, as well as according to the text of Article 10 of the ECHR, it is the task of the media to publish information of public interest and opinions related to such; in fact the media has duties and responsibilities to impart matters of public concern.15 At the same time, it is hardly conceivable that an infringement against the freedom of the press could be established in respect of any medium on the basis of non-compliance with the provisions of Article 10.16 According to a number of US authors, the freedom of the press is not primarily an individual entitlement, but pertains to the media as an institution.17 According to this view, the right is an institutional one that does not primarily protect the journalists and editors working in the media, but the institution itself, therefore, besides the additional rights related to the freedom of the press, the additional responsibilities are also borne by the institution. According to this concept, the freedom of the press is clearly an instrumental right, the purpose of which is to further public interest by creating an exchange of infor14 J. Habermas, The Structural Transformation of the Public Sphere, MIT Press Cambridge, Massachusetts, 1989. p. 185. 15 See e.g. Observer and Guardian v. the United Kingdom (Appl. No. 13585/88, Decision of 26th November 1991), Sunday Times v. the United Kingdom (No. 2) (Appl. No. 13166/87, Decision of 26th November 1991), Thorgeir Thorgeirsson v. Iceland (Appl. No. 13778/88, Decision of 25th June 1992), MGN Ltd. v. the United Kingdom (Appl. No. 39401/04, Decision of 18th January 2011), Uj v. Hungary (Appl. No. 23954/10, Decision of 19th July 2011). 16 Herdis Thorgeirsdottir argues for the recognition of the duties of the journalists and the media in free pseech doctrine, see: ‘Journalism Worthy of the Name: An Affirmative Reading of Article 10 of the ECHR’, 22 Netherlands Quarterly of Human Rights (2004), p. 601. 17 P. Stewart, ‘Or of the Press’, 26, Hastings Law Journal (1974-1975), pp. 631.

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mation and ideas, overseeing the government and operating the public fora.18 Justice William Brennan did not consider the freedom of the press to be as broadly beyond restriction as the freedom of speech. As he stressed, the media have to accept that, in the course of their work, they must take into account several different or even conflicting interests and must meet certain duties placed upon them by the community.19 Chief Justice Burger described the fiduciary duty of the press: that the extraordinary protections afforded by the First Amendment carry with them something in the nature of a fiduciary duty to exercise the protected rights responsibly – a duty widely acknowledged but not always observed by editors and publishers.20 In certain cases, journalists and editors are entitled to freedom from the owner of the press product or media service; this is known as the so-called ‘internal’ freedom of the press. Act XIV of 1914 in Hungary had already provided for the legal relationship between the publisher and the journalists, granting the latter certain rights if the publisher ‘demanded that they write announcements’ [Articles 5760]. But how could the independence of journalists and editors from the influence and pressure of the owner be granted in the media landscape of today? Examining the operation of the printed press, in 1977 the British Royal Commission on the Press raised the issue of the guarantee of editorial independence and formulated certain principles that might serve as the foundation for future legal regulation that have not, after all, been enacted. For example, the Commission defined as a fundamental right of the editors to refuse the publishing of any material originating from the owner, to decide freely about the content of the paper, to decide upon the utilisation of the available budget at their discretion, to reject any advice related to editorial policy, etc.21 In Hungary, Act CIV of 2010 on the Freedom of the Press and the Fundamental Rules of Media Content attempts to ensure the aforementioned ‘internal freedom’ of the press for journalists and editors by preventing certain forms of self-censorship and ensuring freedom for media workers from both the owners and the advertisers and sponsors. Article 7 of the Act stipulates:

18 See e.g.: R.P. Bezanson, ‘Institutional Speech’, Iowa Law Review (1995), p. 823; E. Barendt, ‘Inaugural Lecture – Press and Broadcasting Freedom: Does Anyone Have Any Rights to Free Speech?’, Current Legal Problems (1991), p. 79; F. Schauer, ‘Towards an Institutional First Amendment’, Minnesota Law Review (2005), p. 1256. 19 W.J. Brennan, ‘Address’, 32(173) Rutgers Law Review (1979). 20 Nebraska Association v. Stuart, 427 US 539, 1976. 21 O.R. McGregor (Ed.), Royal Commission on the Press. Final Report July 1977 (Cmnd. 6810), Stationery Office Books, London, 1977.

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Persons employed by or engaged in any other work-related legal relationship with the media content provider shall be entitled to professional independence from the owner of the media content provider or from natural or legal persons or business associations without legal personality sponsoring the media content provider or placing commercial communications in the media content, as well as to protection against any pressure from the owner or the sponsor aimed at influencing the media content (editorial independence and journalistic freedom of expression). No sanctions set forth in the labour laws or originating from any other work-related legal relationship may be applied against any person employed by or engaged in any other work-related legal relationship with the media content provider for their refusal to comply with any instruction that would have violated editorial freedom or the journalistic freedom of expression. The purpose of this rule is to ensure professional independence and is based on the recognition that not only the state, but also certain private interests may jeopardise the independence of the media and the performance of their tasks in the public interest. The owners may naturally still define the direction and the character of their media, but may not issue direct instructions to journalists and editors that would violate their independence. According to the Act, no sanctions set forth in the labour laws or originating from any other work-related legal relationship may be applied against journalists or editors for their refusal to comply with any instruction that would have violated their journalistic freedom of expression (at the same time, the owner may, of course, freely decide whether to employ them or not). According to Herdis Thorgeirsdottir, self-censorship constitutes a violation of the freedom of the press; the duty of the media to report appropriately on issues and debates of public interest is more than just a declaration of principle. At the same time the author, too, is aware of the difficulties of law enforcement in respect of this issue.22

26.1.5

Prior Restraints

It may be worth narrowing down the doctrine of restrictions prior to publication, to make it applicable in legal disputes, as state (legally enforced) censorship seems to be a traumatic memory from the past in the legal systems under assessment. As a first step we may agree that censorship is not identical to prior restraint, which exists in several states today. In the censorship system of Hungary in the 18th – 19th centuries under the Habsburg rule, the prior audit was traditionally conducted by an administrative authority or state official who – perhaps relying on a set of broad principles in need of continuous interpretation – decided at their discretion whether to permit publication. No legal remedy was available 22 H. Thorgeirsdottir, ‘Self-Censorship among Journalists: A (Moral) Wrong or a Violation of ECHR Law?’, 4 European Human Rights Law Review (2004), pp. 383-399.

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against their decision; judicial review was barred. In such a system, publication without permission in itself constitutes a punishable offence, even if the disputed text itself is not in breach. On the basis of historical experience, the censors within the public administration system performed their duties strictly, for if they let everything pass through their filters that would have called the very reason for the existence of their position into question.23 Criticisms directed at the government were particularly sensitive issues: these had little chance against a government employee, but other considerations, too, had a role to play in denying permission. The system of censorship violates the constitutional principle of the separation of powers, too, for, according to that principle, only a court of law may decide in issues related to the exercise of fundamental human rights.24 In systems that apply censorship, usually no clear borderlines are defined in advance; one can never know for certain what is permissible and what is not. This, in turn, results in the self-censorship of publishers wishing to avoid severe financial losses, and such self-censorship may be even stricter that actual external control. In the Hungarian system, censorial injunctions were served after printing, but prior to distribution, and so if such an injunction was applied the entire issue of the paper or a part thereof (the page-pairs concerned) had to be destroyed then reprinted. In theory, prior restraint, partly still in existence today, is able to eliminate these evils of censorship. The prohibition of publication may only be decided by a court of law by summary proceedings after hearing both parties. In the Freedman v. Maryland case25 the US Supreme Court defined the guarantees ensuring the constitutionality of prior restraint. On the basis of these, the burden of proof lies with the applicant; the final decision on the restraint must be passed by a court of law and the procedure must be concluded in a timely manner. If the court is fair and passes its decision on the basis of hearing the parties, this practically precludes the possibility of barring valuable content from publication.26 Usually the applicant is required to provide such strong grounds for its claim that in practice publication is only prevented if it is virtually certain that it would lead to an infringement of rights and, if appropriate guarantees are given, the question may then well be asked whether it is sensible to make any sharp distinction between prior restraint and subsequent liability.27 It is therefore worthwhile to distinguish the various forms of prior restraint from censorship and, rather, to view them in parallel with the forms of subsequent restraint, also 23 T. Frank, ‘Liberális cenzor Metternich Magyarországán. Reseta János’ (J. Reseta: A liberal censor in Metternich’s Hungary) 5 Századok (2003). 24 M.I. Meyerson, ‘The Neglected History of the Prior Restraint Doctrine’, 34(2) Indiana Law Review (2001), p. 295. 25 380 US 51 (1965). 26 M.H. Redish, ‘The Proper Role of the Prior Restraint Doctrine in First Amendment Theory’, 70 Virginia Law Review (1984), pp. 55-58. 27 J.C. Jeffries, Jr.,‘Rethinking Prior Restraint’, 92 Yale Law Journal (1982-1983), pp. 409.

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because the criteria for the examination of the legality of prior restraint need to be identical or at least similar to the criteria applied during the official or court examination of content that has already been published.

26.2

Existing Prior Restraint in Specific Legal Systems

26.2.1

England

English law has provided for the possibility of the prior restraint of the publication of content deemed to be infringing upon personality rights via the institution of interim injunction. The injunction limiting the freedom of speech by temporarily banning publication must be temporary in nature: it may only last until the court decides by due process upon the legality or illegality of the content concerned. If it is found to be in breach, the content may not be published subsequently, either. According to Lexis ® Library injunction is a remedy whereby the court orders a defendant to do, or refrain from doing, a certain thing. It is an equitable remedy, and is available but has an interim remedy pending the final disposal of an action, and as a final remedy. A ‘super injunction’ (or ‘super-injunction’) is an injunction which also prohibits the reporting of its own existence; the first known origin of the term was a 2002 issue of The Guardian. The great British injunction controversy started in 2011, when tabloids started to publish stories about unnamed celebrities who requested super-injunctions from the courts in order to protect their privacy.28 The old common law had already provided for rather narrow limits in respect of the issue of interim injunctions, only allowing such if the fact of the infringement in the event of publication were evident.29 In defamation cases the courts hardly ever favoured injunction (on the basis of the consideration that the disputed statement should be given a chance, and it will be sufficient to order the publishers to provide proof or otherwise exculpate themselves later on. Furthermore, indemnification is an appropriate instrument for restoring damaged reputations – in other cases, however, such as the violation of privacy

28 The 2011 report of the committee convened by the Master of the Rolls discusses the issue of super-injunction in detail (Report of the Committee on Super-Injunctions: Super-Injunctions, Anonymised Injunctions and Open Justice, available at www.judiciary.gov.uk/Resources/JCO/Documents/Reports/super-injunctionreport-20052011.pdf). 29 Bonnard v. Perryman, 1891, 2 Ch 269, CA.

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or the disruption of the proceedings of the court, subsequent accountability is not suitable as a remedy for the injury caused30). The Human Rights Act of 1998 touches upon the regulation of ‘prior restraint’ that is still based on common law. According to the provisions of the Act, before the application of prior restraint, both parties must represent themselves before a court of law. Without this, the applicant is required to prove they have taken every expectable measure to notify the other party or that such notification is impossible for reasons of sufficient gravity. Prior restraint may be awarded if the court has ascertained that ‘the applicant is likely to establish that publication should not be allowed’31 at a regular trial, too. Likelihood, however, does not mean full certainty, not necessarily even probability, but simply that there is a good chance that the applicant would be able to prove that they are right.32 English courts still do not admit prior restraint in defamation cases33; the applicant may only prevail in respect of communications made in relation to privacy and court proceedings. Injunction, however, is far from being the only instrument within the legal system that results in prior restraint. In the case of media services – to which the above-discussed common law rules equally apply – the media acts and the agreements providing for the operation of the BBC have enabled the government to intervene in the operation of the media by censorship measures. The effective law – Section 336 of the Communications Act of 2003 – authorises the minister of culture or any other member of government to order the media to publish their announcements. On the basis of this provision, the government is also entitled to bar the discussion of any subject from the media. The dual duty only applies to Broadcasting Act licence holders (Channel 3 and Channel 5). In the case of the BBC, this right of the government is based on Point 81 of the 2006 Agreement, which provides, however, that the government may only exercise this right in the event of a national emergency or for purposes of the defence of the realm.34 Although the Communications Act of 2003 does not explicitly provide so, application of government censorship is only permissible for a compelling reason in the interest of society. Since the start of broadcasting, the government has only made use of this instrument on six occasions and, with the exception of the last occasion, mainly gave general instructions to the BBC (e.g. to maintain balanced coverage).35 The last occasion when the government instructed the BBC and the media authority supervising commercial broadcasters 30 31 32 33 34

Fraser v. Evans, 1969, 1 QB 349, CA. Human Rights Act (1998) Series 12, Para. 3. Eric Barendt, Freedom of Speech, 2nd edn, Oxford University Press, Oxford-New York, 2005, pp. 127. Cream Holdings v. Banerjee, 2004, 4 All ER 617, Greene v. Associated Newspapers, 2005, 1 All ER 30. Department for culture, media and sport broadcasting, An Agreement Between Her Majesty’s Secretary of State for Culture, Media and Sport and the British Broadcasting Corporation Presented to Parliament by the Secretary of State for Culture, Media and Sport by Command of Her Majesty, July 2006. 35 E. Barendt, Broadcasting Law – a Comparative Study, Clarendon Press, Oxford, 1993, pp. 36.

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on the basis of this provision (or, more precisely, its predecessor) was in 1988; then the order was to refrain from the presentation of the positions of certain Northern Irish political organisations. Amongst the – once again – aggravated circumstances at the time, the Home Office deemed the partial deprivation of terrorists and their supporters from publicity to be necessary and in the interest of national security. A matter of interest is that the injunction only extended over direct presentation and could be bypassed by television stations by distorting the voices of the speakers; nor did it extend over speeches made during the course of election campaigns. The National Union of Journalists filed a court complaint against the decision of the ministry; however, the court rejected the complaint (and could not have done otherwise taking into account the provision of the law).36 The court emphasized that it had limited its examination to the specific facts of the case and, on the basis of that, had established that the intentions of the government (i.e. the suppression of terrorism) had been directed at a perfectly legitimate objective. Under the English legal system and according to the English conception of the law, the task of the judges was limited to this and they had no competency to examine the constitutionality of the injunction. The provisions of the law are recognised as evidently mandatory by even the highest levels of the judiciary. In England there exists a prior categorisation system of cinematic and video films which, in practice, may conduct censorial activities (and the theoretical possibility of the oversight of the content of theatrical plays was only abolished by the 1968 Theatres Act). According to the Cinemas Act of 1985, it is the task of the British Board of Film Classification (BBFC) to age-rate the films in distribution according to which age groups may be permitted to view them. The Act places the right of the final decision into the hands of the local authorities, but these rarely diverge from the decision of BBFC.37 The BBFC decides upon the classification of films on the basis of the Classification Guidelines that had been drawn up on the basis of public consultation, and only very rarely prohibits the distribution of a film entirely. In the interest of classification into a lower age-group, the Board may request the producer to cut certain parts of the film; if the producer opts not to do so, then the film remains in the original category. On the basis of the Obscene Publications Act of 1959, the Board prohibits the distribution of films with illegal, e.g. obscene content. In respect of video cassettes and DVDs, the BBFC applies stricter standards than for cinematic works, since the films on these media can be freely wound forward and backward on the home player, allowing viewers to focus on violent or erotic scenes, and also because these are more easily accessible to minors. As opposed to the films shown in theatres, however, in the case of videos there exists a so-called ‘R18’ category. This category is 36 R. v. Home Secretary, ex parte Brind, 1991, 1 AC 696. 37 About the supervision system, see: G. Robertson and A. Nicol, Media Law, 4th edn, Penguin Books, London, 2002, pp. 727-767; E. Barendt et al., Media Law: Text, Cases and Materials, Pearson, Harlow, 2014, pp. 3336.

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expressly reserved for pornographic works, which may only be sold in special licensed stores catering to such needs.38

26.2.2

The United States

The legal literature and practice of the United States interprets the concept of ‘prior restraint’ broadly and includes, under this heading, not only the possibility of the issue of injunctions in respect of specific content, but the various licensing systems as well.39 The US Supreme Court has tried several cases related to the licensing of media products. In the Lovell v. Griffin case,40 the subject of the examination of constitutionality was the ordinance of the City of Griffin, which required approval for the distribution of press products for free or in exchange for consideration. According to the decision of the court, this restriction was contrary to the First Amendment. The major risk inherent in licensing systems is that they do not provide any clear standards, on the basis of which distribution may be prohibited, and this allows broad scope for orarbitrary decisions. The court passed a similar decision in the City of Lakewood v. Plain Dealer Publishing case,41 and ruled the city ordinance authorising the mayor to grant or deny applications for annual permits for publishers to place their self-service news-racks on public property, without clearly defining the limits of the exercise of this authority, as unconstitutional. The peremptory circumstance in both cases was the fact of inadequately defined, ‘standardless’, licensing. The background to the Freedman v. Maryland case42 was that the appellant screened a film in a theatre without first submitting it to the State Board of Censors; the film itself, however, was not obscene or otherwise in violation of the law. The court ruled unanimously that the law requiring prior checks of films was invalid on the basis of the First Amendment. What the court found to be objectionable was not that the check could prevent the initial showing of content that might prove to be obscene later on, but that the restriction could affect constitutionally protected content, too. The reasoning of the decision specified the guarantees necessary for the constitutionality of prior restraint: First, the burden of proving that the film is unprotected expression must rest on the censor […] Second, while the State may require advance submission of all films, in order to proceed effectively to bar all showings of unprotected films, the requirement cannot be administered in a manner in which would lend an effect of finality to the censor’s determination whether a film constitutes pro38 39 40 41 42

Barendt et al., ibid. G.R. Stone et al., (Eds.), The First Amendment, 3rd edn, Aspen Publishers, New York, 2008, pp. 119-133. 303 US 444 (1938). 486 US 750 (1988). 380 US 51 (1965).

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tected expression. […] only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint. …the exhibitor must be assured, by statue or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution. […] [The] procedure must also assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license. Without these safeguards, it may prove too burdensome to seek review of the censor’s determination.43 The legal system of the United States does not entirely preclude the possibility of injunction as a form of prior restraint either, but confines its exercise within very narrow bounds. In the Near v. Minnesota case44 of 1931, the Supreme Court ruled a Minnesota law that prohibited the publication of malicious or scandalous content in newspapers and allowed the prior restraint of publication as unconstitutional unless the publisher was able to prove the truth of the statements to be published and the good intention and justifiable objective of the publication. According to the decision, the possibility of prior restraint was admissible, but the requirement of prior proof violated the freedom of the press. [According to the statute] public authorities may bring [a] publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter [and] unless [the] publisher is able [to prove] that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is the essence of censorship. That is, in theory prior restraint is admissible in the United States and does not necessarily violate the protection of the freedom of speech granted by the First Amendment. However, it is not sufficient if the procedure is conducted according to the guarantees defined in the aforementioned Freedman case; the application of the law based on the American concept of the freedom of speech allows even less grounds for prior intervention than the English courts do.

43 Ibid. 44 283 US 697 (1931).

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In the Bantam Books Inc. v. Sullivan case45 the American judges qualified as inadmissible prior restraint a mere ‘notice’ issued by the police that had no legal effect whatsoever. (In the notice the authority alerted distributors to the fact that the publications they sold might have violated the law on obscene publications.) In the well-known New York Times Co. v. United States case,46 the Supreme Court had to decide whether to prevent the publication of confidential documents, the disclosure of which the government believed would jeopardise state security. The Court first issued a temporary restraining order; subsequently, however, after getting to know the positions of the parties in detail and four days of thought, it rejected the government’s request in a 6-3 decision, saying that the government had not met its burden of demonstrating that the gravity of the presumed danger justified the necessity of prior restraint. This decision reinforced the notion that, in general, there are extremely strong presumptions against the admissibility (constitutionality) of prior restraint. The judges submitting dissenting opinions stressed that the procedural guarantees protecting the publisher did not necessarily protect the applicant – according to them, the government had not been granted the proper time and means to justify its position in the given case. The temporary prohibition of publication could even provide the courts with sufficient time to weigh the opposing arguments before ordering final prohibition. In the Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations47 case, the Court upheld an order which prohibited the newspaper from carrying sex-segregated advertisements for the future. The Court argued: [This Court] never held that all injunctions are permissible. [A] special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that is unprotected by the First Amendment. The present order does not endanger arguably protected speech. Because the order is based on a continuing course of repetitive conduct, this is not a case in which the Court is asked to speculate as to the effect of publication. […] [Because] no interim relief was granted, the order will not have gone into effect before our final determination that the actions of Pittsburgh Press were unprotected.’ The words of Martin Redish provide a succinct summary of the reasons for the aversion of the US legal system towards prior restraint:

45 372 US 58 (1963). 46 403 US 713 (1971). 47 413 US 376 (1973).

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[Injunctions] are appropriately disfavoured [because] of the coincidental harm to fully protected expression that results [when] a preliminary restraint [is] imposed prior to a decision on the merits of a final restraint. [Such] interim restraints present a threat to first amendment rights not found in subsequent punishment schemes – the threat that expression will be abridged, if only for a short time, prior to a full and fair hearing before an independent judicial forum to determine the scope of the speaker’s constitutional right. […] the doctrine should strike down [injunctions] imposed prior to a full and fair judicial hearing. Although the US Supreme Court never expressly precluded the prior control of the content of films, the expression of the freedom of speech via cinematographic works has enjoyed constitutional protection almost from the very beginning.48 As a result of the guarantees postulated by the decision in the Freedman case, public administration level control as it exists in the United Kingdom has become almost impossible. In the United States today there only exists a voluntary rating system that is operated by the film industry.

26.2.3

Hungary

In the fledgling Republic of Hungary in 1989 there were no immediately applicable guidelines available as to what exactly the free speech provision in the newly modified text meant. It seemed logical that this should be done by the freshly established institutions, in particular, as regards the interpretation of the Constitution, by the Constitutional Court. The new public structures had to be filled with content—within the latitude provided for by the laws and regulation, or sometimes slightly expanding them—at that time. In its decisions, the Constitutional Court wanted to protect several interests comprised in the right to freedom of speech—with special attention to the development of individual autonomy and democratic public opinion, as the tribunal made clear at the first possible opportunity in Decision No. 30/1992 (V. 26) AB, which may be regarded as the ‘fundamental decision’ of freedom of speech. Thus, both the right of the individual and the interest of the community appeared in the interpretation—manifested in the openness of public debate and the free shaping of public opinion—and this double foundation remained valid for future decisions, too. Freedom of speech was placed in an exclusive position in the imaginary hierarchy of fundamental rights: According to the interpretation of the Constitutional Court, it is afforded second place, immediately below the right to life and right to human dignity, which are bound together in an inseparable unit. Although this did not mean that, in the event of conflict of interest, almost every other fundamental right would 48 Burstyn v. Wilson 343 US 495 (1952).

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have to yield to freedom of speech, it does mean that the right placed on the opposite side of the scale has to be interpreted restrictively, and it should be presumed that, if there is tension between the two, freedom of speech enjoys priority. In Hungary the provision of the Press Act (Act II of 1986, repealed in 2011), allowing prior restraint, had been effective until 1997. On the basis of paragraph (3) of Article 15 of the Act, if the exercise of the freedom of the press would have resulted in a criminal act or instigation to commit such an act, then this would have violated public morals or someone’s personal rights. Furthermore, if a newspaper were distributed prior to registration on the basis of mandatory notification, then, upon the motion of the public prosecutor, the court could have prohibited the ‘public communication’ of the press product concerned. Until the decision was passed by the court, the public prosecutor had the right to temporarily suspend publication. A number of authors regarded this rule as clearly censorial in nature49; however, it was merely prior restraint (as, for the most part, it provided clear criteria for the decision that was ultimately left to the court). According to a petition submitted to the Constitutional Court, the rule unconstitutionally restricted the freedom of the press. The Court found the provision to be partially unconstitutional and, since a single sentence contained both constitutional and unconstitutional content and the Court has no power to ‘write into’ the law, it struck down the disputed provision in its entirety. (Constitutional Court Decision 20/1997 (III. 19) AB). Since it was not the freedom of the press upon which the examination of the provision in question was based, implicitly the Court acknowledged that prior restraint is not incompatible with fundamental rights. The majority of the court took the position that the provision of the law according to which the public prosecutor had the right to propose the prohibition of publication in the event of a violation of the personal rights of others (and, in the case of crimes, of private prosecution, even independently of the intentions of the injured parties), was in violation of the right to self-determination. By contrast, prior restraint applied with reference to public morals, in the case of crimes of public prosecution or in the event of failure to comply with the requirement of notification, is not unconstitutional. The decision was accompanied by two dissenting opinions. The first of these (by László Sólyom and Tamás Lábady) went beyond the majority decision and deemed prior restraint in the interest of the protection of public morals to be unconstitutional, because public morals constitute an abstract value that is ‘among the values that are the least applicable to the limitation of the freedom of speech according to constitutional criteria’50; furthermore, the judges raised the issue of the lack of procedural guarantees ensuring the timely conclu-

49 G. Halmai, ‘Az előző vizsgálat eltöröltetvén örökre…?’ [‘Prior examination abolished for good…’?], 1 Fundamentum (1997), p. 58. 50 Constitutional Court Decision 20/1997 (III. 19), dissenting opinion of Tamás Lábady and László Sólyom.

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sion of the procedure as well. In sharp contrast with this, two other judges of the Constitutional Court, Ödön Tersztyánszky and János Zlinszky, believed that the disputed provision had been entirely constitutional. According to their argument, the procedure resulting in prior restraint may not be construed as an obstacle to the right to self-determination before a court, as it is in no way related to the civil and criminal lawsuits that may be instituted due to the violation of personal rights. All that the court is required to decide, upon the motion of the public prosecutor, is whether the content to be published objectively constitutes a criminal offence or violates a personal right. Following this, the injured party is free to decide whether to assert their rights and file charges. This argument is not quite sound, because if the court decides in favour of prior restraint, the legal violation constituted by publication cannot occur, which means that no court proceedings could have been initiated in the first place. (However, one could hardly protest rightfully against the intervention of the court as a result of which their rights are not violated.) That is, the majority decision established the fact of unconstitutionality solely on the basis of the violation of the right to self-determination. In his aforementioned paper, Gábor Halmai was sharply critical of the decision of the Constitutional Court.51 He rejected the – tacit – proposition of the decision that, in the interest of the protection of personal rights, the injured party may, in theory, constitutionally demand the prohibition of publication. As regards procedural guarantees, the law was indeed wanting in some respects; however, the fact that the procedure in question is brought before a court of law providing certain guarantees renders the label ‘censorship’ uncalled for. The temporary suspension right of the public prosecutor may, indeed, be problematic from the aspect of free speech, as it does not meet the conditions examined above that ensure the constitutionality of prior restraint. It is also true that, in itself, the requirement that the procedure be conducted ‘with priority’ did not guarantee its speedy conclusion. The critique also disputed the contention of the majority of the court that the application of prior restraint with reference to public morals or non-compliance with the duty to register was constitutional. Well, with respect to the justification of its existence and objective, it is perhaps indeed not these breaches of the law where the institution should be applied, although it is also true that the Hungarian public prosecutor’s office and the courts have never applied this rule in practice. On the basis of the motion of the President of the Republic, the legal restriction of the right of convicts to make statements to the press was deemed to be unconstitutional. In respect of this issue, the statement of reasons of Constitutional Court Decision 13/2001 (IV. 14) AB contains the following statement of principle:

51 Halmai, supra note 49.

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The institutional, operational and security interests resulting from the responsibilities of the organisation executing the detention require and demand a certain degree of control over contacts between the person in detention and the media, in the course of which a staff member of the penal institution may have access to the content of the information to be published. It follows, however, from the high constitutional esteem of the freedom of expression and freedom of the press that the communication so controlled shall only be withheld if its public disclosure would lead to serious consequences. [Constitutional Court decision 13/2001 (IV. 14) AB, statement of reasons, Point IV. 3. 1]. According to the majority opinion, it is also important ‘to define clearly in the statutes not only the causes of the preliminary restrictability of such rights but also the scope of communication covered by the restriction.’52 From all this it follows that the relationship between the detainees and the media may be regulated, and may even be subjected to prior restraint, so long as the restriction is clearly defined and is necessitated by the protection of a fundamental right or constitutional value beyond the freedom of speech. Constitutional Court Decision 34/2009 (III. 27) AB ruled unconstitutional the provision of the previous press act that prohibited the registration (which, until 2011, was a precondition for distribution) of press products are presumed to constitute criminal offences, violate public morals or commit a violation against personality rights and ordered the deletion from the register, without further consideration, of any periodical publications that commit the above (Press Act, Articles 14-15). According to the Constitutional Court: By prescribing not only the notification of the title and purpose of periodical publications but also the examination of the notified purpose – i.e. the prior examination of content – in essence the legislator provides for the supervision of the accessibility and distribution of information. As such, the decision right of the authority responsible for registration includes the prior law enforcement supervision, and the assessment and evaluation of the content of the ideas intended for communication via the press product from the aspect of their suitability for distribution in the form of a press product. This constitutes censorship. According to the position of the Constitutional Court, the objective to be achieved – preventing a possible abuse of the freedom of communication, i.e. the risk of an abstract future violation of rights – and the severity of the violation of the fundamental right committed in the interest of this objective are not commensurable with each other. The fact that, according to the position 52 Constitutional Court decision 13/2001 (IV. 14), Reasoning, Point IV. 3. 1.

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of the authority deciding upon the registration on the basis of the objective of the press product as stated in the notification, it may be presumed that a violation of personality rights will be committed in the future does not constitute sufficient grounds for denying registration, especially since personality rights derive from the human being as subject and, according to the principal rule, may only be asserted personally.53 Advertisements and commercial communication also enjoy the protection of the freedom of speech, although to some extent different considerations apply to the restriction of these forms. Constitutional Court Decision 23/2010 (III. 4) struck down the provision of the Advertising Act (Act XLVIII of 2008) that enabled the proceeding authority or the court to prohibit the publication of advertisements in violation of the law prior to their initial publication. The court did not regard this provision as censorial in nature, because the applicable provision, Article 27 of the Advertising Act did not require prior examination. Nevertheless, the provision was deemed unconstitutional because it entailed a disproportionate restriction of the freedom of speech. According to the Constitutional Court: [T]he interest vested in the prevention of an individual legal violation or a specific objective of public interest may, in exceptional cases, render necessary the prior restraint of publication. However, this may only be enforced constitutionally in contrast with the freedom of the press if there are definite guarantees that ensure that no disproportionate restriction will be applied to the fundamental right. (…) Article 61 of the Constitution demands, even in respect of commercial communications which are granted a lower level of constitutional protection, that the communications to be affected by the justifiable restriction be clearly defined, that the authority pass its decisions in a predictable manner and that the legal consequences to be applied be commensurable with the justification of the restriction.54 It should be mentioned that, on the basis of the authorisation conferred by Act CXIII of 2011, on National Defence, the media may be subjected to special restrictions in the case of state of emergency or national defence situations; inter alia, the prior control of press products and communications and the licensing of their publication may be ordered (Article 68). On the basis of Act II of 2004, on Motion Pictures, a precondition for the distribution of cinematographic works is that they be classified according to the categories provided

53 Constitutional Court Decision 34/2009 (III. 27), Reasoning, III. 3.2. 54 Constitutional Court Decision 23/2010 (III. 4).

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for by the Act (Article 19, Articles 20-24). On the basis of the recommendation of the Classification Commission, the ‘motion picture authority’ decides on the age rating classification. The authority has no right to propose or demand changes or cuts and may not deny classification either, therefore all works ‘fit’ into the strictest category (’recommended for adults only’). As opposed to the British solution, this regulatory system may not even be viewed as prior restraint.

26.2.4

The Jurisprudence of the European Court of Human Rights

The ECtHR does not, in principle, preclude the application of prior restraint. This is clear from the earlier jurisprudence of the Court55 and has been explicitly stated in the judgements in the Sunday Times v. the United Kingdom (No. 2.)56 and the Observer and Guardian v. the United Kingdom57 cases. In order to ensure that the restriction does not violate the freedom of speech and the freedom of the press as granted by Article 10 of ECHR, however, the court is required to examine such cases with utmost care. The background to the Sunday Times v. the United Kingdom case58 was that between 1958 and 1961 a pharmaceutical called Thalidomide had been marketed in the United Kingdom which had severe adverse side-effects and caused birth defects in pregnant women and their babies. The Sunday Times intended to publish an article about the tragic events, however, the courts forbade this, claiming that the publication would jeopardise the ongoing court procedure. The position of the ECtHR was that, in the given case, the freedom of the press was worthy of greater protection than the impartiality and freedom from external influences of court procedures. The Strasbourg Court took into account the fact that the scandal and its legal aspects had already received press publicity for ten years by then. Furthermore, according to the Court, such an article was not capable of jeopardising the independence of British courts. In the Sunday Times v. the United Kingdom (No. 2.) and the Observer and Guardian v. the United Kingdom cases, the British courts issued interim injunctions preventing the press publication of articles written by a former MI5 intelligence officer. The articles were taken from the author’s book of memoirs entitled Spycatcher, so the cases also gained publicity under this name. The texts affected by the prior restraint had already been published in other countries at the time, but according to the position of the British courts they nevertheless posed a threat to national security. According to the findings of the ECtHR: 55 Sunday Times v. the United Kingdom (Appl. No. 6538/74), Judgement of 26th April 1979, Markt Intern Verlag and Klaus Beerman v. Germany (Appl. No. 3/1988/147/201), Judgement of 25th October 1989. 56 Appl. No. 13166/87, Judgement of 26th November 1991. 57 Appl. No. 13585/88, Judgement of 26th November 1991. 58 Appl. No. 6538/74, Judgement of 26th April 1979.

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[…] the Convention does not in terms prohibit the imposition of prior restraints on publication, as such. […] On the other hand, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest.59 Despite the fact that in theory they were admissible, the interim injunctions applied in the specific case were in violation of Article 10 since the information in question had already been published in the United States and Australia, and therefore the justification for the prior restraint was not national security, but merely the effectiveness and reputation of the security services. The fact that the further publication of Spycatcher material could have been prejudicial to the trial of the Attorney General’s claims for permanent injunctions was certainly, in terms of the aim of maintaining the authority of the judiciary, a ‘relevant’ reason for continuing the restraints in question. The Court finds, however, that in the circumstances it does not constitute a ‘sufficient’ reason for the purposes of Article 10 (art. 10). “[…] …the interest in maintaining the confidentiality of that material had, for the purposes of the Convention, ceased to exist by 30 July 1987”.60 In the RTBF v. Belgium case,61 a television service provider intended to report on the complaints related to the activities of a physician. As an interim measure, the physician applied for prior restraint before the programme was broadcast, and was granted it by the court in the interest of the protection of his reputation. In the case, the ECtHR established the violation of Article 6 due to procedural errors and, in respect of Article 10, declared that the injunction ordering the prior restraint must also meet the requirements of the ECHR, i.e. its application should conform to the law and be predictable. The lack of accurate and detailed provisions may lead to uncertain standards in jurisprudence where the courts apply different tests to printed and audio-visual media and would enable a broad scope of persons fearing the attacks of the media to temporarily block news. Since Belgian law had created such an uncertain situation, the ECtHR declared the violation of Article 10 as well. On the other hand, the states party to the Convention have more elbow-room in issues related to national security, public morals and religious tolerance. In the Purcell v. Ireland

59 Sunday Times v. the United Kingdom, No. 2, Para. 51, and Observer and Guardian v. the United Kingdom, Para. 60. 60 Sunday Times v. the United Kingdom, No. 2, Para. 54, and Observer and Guardian v. the United Kingdom, Para. 68. 61 Appl. No. 50084/06, Judgement of 29th March 2011.

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case,62 the European Commission of Human Rights rejected the complaint submitted claiming the official state censorship of Irish broadcasters. The facts of the case were similar to the intervention by the British government in 1988 discussed above, which had also occurred in the interest of national security and was directed against Northern Irish terrorism. In Wingrove v. the United Kingdom,63 the Strasbourg Court did not judge the British decision that banned the distribution of the film Visions of Ecstasy which depicted the erotic fantasies of St. Theresa of Avila to be contrary to the Convention. According to the British authorities and the Court, the screening of the film would have been an act of blasphemy, which was still a criminal offence in England at the time. Accordingly, the film was not classified into any category; consequently it could not be distributed. With reference to the principle of the margin of appreciation of Member States, the Strasbourg Court did not see this as reason for establishing a violation of the European Convention on Human Rights. The Editions Plon v. France64 and the Stoll v. Switzerland65 cases also make it clear that the continuous or permanent application of an injunction restraining publication ‘must be subordinated to a stringent review as to the existence of ‘compelling’ countervailing interest.’66

26.3

Summary

In conclusion we may note that today, according to the modern concept of the freedom of the press, the old, historic institution of censorship is not permissible in the countries examined in the present paper. If, however, a state does attempt to influence the contents of the media via undesirable means, then such an attempt should be clearly set apart from other types of restrictions that are constitutionally permissible. In this paper I have argued for the differentiation between prior and post publication restrictions, and in the case of the former, the distinction between censorship and prior restraints. I have also argued that the concept of censorship may be further subdivided, and distinction has to be made between the censorship exercised by the state and private or self-censorship that operates within the media itself, and can be hardly legally regulated.

62 63 64 65 66

Appl. No. 15404/89, admissibility decision. Case No. 19/1995/525/611. Judgement of 22nd October 1996. Appl. No. 58148/00, Judgement of 18th August 2004. Appl. No. 69698/01, Judgement of 10th December 2007. D.J. Harris et al., Law of the European Convention on Human Rights, 2nd edn, Oxford University Press, Oxford, 2009, pp. 466.

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Quota Rules in Respect of Audiovisual Media Regulation – On the Borderline of Economic and Cultural Considerations

Levente Nyakas*

27.1

Introduction

The evaluation of quota rules of the Television Without Frontiers (TVWF) Directive1 were not entirely unambiguous even at the time of their birth; moreover, having regard to external relations, the EU was forced to confront with the USA in the framework of the World Trade Organisation (WTO) during the adoption process of the TVWF Directive and in the course of its implementation. Later, doubts have been expressed in relation to the applicability of the quota rules and also the aim to be pursued by these rules, which problems mostly emerged in the relationship between the EU and its Member States. Irrespective of the difficulties of the application of its rules and the emerging international conflicts, the quota rules were still in force after the extensive amendments to the TVWF Directive in 1997 and also in 2007, furthermore, the quota rules were slightly expanded to the on-demand audiovisual media services.2 The current paper intends to explore the original regulatory aims behind the development of quota rules and to briefly introduce the regulation and its respective interpretations and the solutions of the Member States that diverge from the general rules of the TVWF Directive. Finally, the present paper also points out the major criticisms expressed towards the quota rules.

* 1 2

Head of Institute, Institute of Media Studies (Budapest). E-mail: [email protected]. Council Directive 89/552 OJ 1989 L 298/23 (TVWF Directive). European Parliament and Council Directive 2010/13 OJ 2010 L 95/1 (Audiovisual Media Services Directive) Arts. 13, 16 and 17.

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27.2

Brief Assessment of the Dual Nature of the Media Services

The issue of quota rules demonstrates a close connection with one of the fundamental problems of media regulation. The dual nature of the regulated area, namely the fact that media services bear economic and cultural features at the same time, significantly influences the direction of media regulation. The situation becomes even more complex in case we consider culture as an industry. The recent phenomenon of ‘cultural industry’ implies the duality of culture and economy, in addition to the tension existing between economic and cultural approaches towards the media. According to Neuwirth, this tension occurs at the regulatory level in a way that fundamental principles of free trade should be balanced with non-trade values and principles. Free trade presupposes the constant liberalisation of trade and the phenomenon is based on the principle of non-discrimination which should be aligned with values such as culture, environmental protection, national security and human rights. Nevertheless, the latter values are by no means neutral and they assume state behaviour or intervention, which are founded on the balancing of values, i.e. on differentiation. On the international plane, such uncertainty appears, among others, in the duplication of international institutions, since these institutions manage the same problem in different ways. At a global level such activity is carried out for instance in the WTO and different specialised agencies of the United Nations, such as the UNESCO, the United Nations Educational, Scientific and Cultural Organisation.3 Although in the current paper I do not intend to touch upon the ongoing dispute regarding the legality of quota rules,4 it is nevertheless important to mention it in a few words as the dispute provides a good example for the settlement of conflicts stemming from the economic and cultural interpretation of audiovisual services within the framework of the previously mentioned, duplicated system of international institutions. Following the failure of establishing an agreement in the framework of the WTO regarding the liberalisation of services, largely due to the adoption of quota rules enshrined in the TVWF Directive, the USA attempted to enforce liberalisation as it is set out in the GATS by way of bilateral trade agreements. In response to this, as a counterbalance, the EU endeavoured to enforce the execution of the UNESCO’s convention on the protection and promotion of the diversity of cultural expressions5 and to maintain the subsidies and quotas in respect

3

4 5

R.J. Neuwirth, ‘The Culture Industries: From the Common Market to a Common Sense’, in David Ward (Ed.), The European Union and the Culture Industries: Regulation and the Public Interest, Ashgate, Hampshire, 2008, p. 243. L. Nyakas, ‘A média a nemzetközi kereskedelemben’, in A. Koltay and L. Nyakas (Eds.), Magyar és európai médiajog, CompLex, Budapest, 2012, pp. 199-207. Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 2005.

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of national contents by concluding protocols with the states having a bilateral agreement with the USA.6 A coherent policy which represents a unified standpoint in respect of the conundrum between trade and culture has not yet developed on the international level, moreover, the expression cultural industry also requires some clarification.7 In the audiovisual policy of the EU, as a regional economic organization, this fundamental conflict was resolved in a peculiar way.8 In the common regulation, set out in the TVWF Directive of 1989, the EU intended to establish a common market for television services9 by harmonising some aspects of Member States’ media regulations and establishing minimum regulations capable of dismantling the barriers impeding the free movement of services. By referring to the previously applied expression, the TVWF Directive was mainly developed pursuant to the principles of free trade in order to achieve deregulation. In respect of the non-harmonised regulatory sphere, the EU left other aspects of media regulations, such as social and cultural viewpoints including for instance public media services, in the competence of the Member States, stipulating that having regard to the harmonised legal sphere Member States are entitled to adopt more stringent or detailed rules that are in compliance with the aim of the TVWF Directive and EU law in general.10 In terms of media policy, the EU decided in favour of the separation of economic and cultural regulatory issues, in line with the respective provisions of the founding treaties and CJEU case-law. We may arrive at the conclusion (pursuant to the above described logic) that the audiovisual policy of the EU concerns exclusively economic issues; however reality is far removed from this view. The qualification of quota rules, which were previously regulated in the TVWF Directive and notwithstanding extensive amendments, respective provisions were maintained in the AVMS Directive as well, implies several ambiguities. This may also be inferred from the aforementioned international conflict, which raises questions in relation to the nature of Union audiovisual rules as well. In the following, I shall review the regulatory aims and intentions underpinning the development of quota rules.

6

T. Gibbons and P. Humphreys, Audiovisual Regulation under Pressure – Comparative Cases from North America and Europe, Routledge, London, New York, 2012, p. 151. 7 S. Galloway and S. Dunlop, ‘A Critique of Definitions of the Cultural and Creative Industries in Public Policy’, 13(1) International Journal of Cultural Policy (2007), pp. 17-31. 8 P. Keller, European and International Media Law. Liberal Democracy, Trade and the New Media, Oxford University Press, Oxford, 2011, p. 115; Z. Horváth, Kézikönyv az Európai Unióról, HVG-Orac, Budapest, 2007, pp. 481-482; T. Kende and T. Szűcs (Eds.), Bevezetés az Európai Unió politikáiba, CompLex, Budapest, 2009, p. 1078. 9 Television without Frontiers Green Paper on the Establishment of the Common Market for Broadcasting, Especially by Satellite and Cable COM(84)300 final Brussels, 14th June 1984. 10 L. Nyakas, ‘Az audiovizuális média szabályozása az Európai Unióban’, in A. Koltay and L. Nyakas (Eds.), Magyar és európai médiajog, CompLex, Budapest, 2012, pp. 157-174, 166-169; L. Nyakas ‘A közszolgálati műsorszolgáltatás a közösségi jog kontextusában – avagy az audiovizuális szolgáltatások természetéről folytatott európai vita’, X(2-3) Collega (2006), pp. 227-230.

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27.3

27.3.1

Regulatory Background of the Quota Rules of the TVWF Directive

Cultural and Economic Considerations

The Hahn report11 issued in 1982 represents the beginning of the EU’s audiovisual regulation, envisaging an interventionist Community audiovisual approach and policy.12 Besides market integration, the report found extremely important to emphasize European political and cultural unity and report considered that the establishment of a transnational system of television broadcasting plays a central role in fulfilling this ambition. Thus, Hahn proposed Community regulation which strengthens a single European culture and identity.13 The idea enshrined in the Hahn Report failed and the Green Book preparing the TVWF Directive unequivocally refused the vision of launching a common European television, opting rather for sectoral regulation in the common market which basically established the economic conditions for ensuring free television services withouth frontiers, considering the latter to be a service essentially economic in nature.14 Besides the economic aspects, cultural considerations15 also emerged among the regulatory goals in the draft report of the Economic and Social Committee issued in 1985 in the framework of the Green Book containing also the proposal of the European Commission on the TVWF Directive.16 It is clear from the draft report that in the course of its preparation these cultural considerations were raised for fear that a similar process will take place in Europe as previously occurred in the USA, when new forms of broadcasting such as satellite and cable emerged. According to these misgivings, the European audience, accustomed to a completely different television environment where the repertoire focused mainly on cultural and social issues, would be faced with a mass of light entertainment television programmes in order to achieve high ratings, consequently, quality entertainment,

11 Report drawn up on behalf of the Committee on Youth, Culture, Education, Information and Sport on radio and television broadcasting in the European Community, Working Documents 1981-82, Document 11013/81, 23 February 1982. (Hahn Report, 1982). 12 The Hahn Report represented the so-called cultural interventionalist dirigiste trend in the course of the political discussions of the EU. This trend favours the economica and financial intervention of the state and the EU, while contrary to this, the liberal trend prefers the realisation of free market which implies nonintervention. 13 R. Collins, ‘The Screening of Jacques Tati: Broadcasting and Cultural Identity in the European Community’, 11(361) Cardozo Arts & Entertainment Law Journal (1993), pp. 380. 14 Nyakas, 2012, p. 167. 15 Id., p. 4. Cultural aspects. 16 Revised draft report on Television without Frontiers – Green Paper on the establishment of the common market for broadcasting, especially by satellite and cable [COM(84)300 final], CES 374/85, 17 July 1985 (a továbbiakban: Jelentéstervezet).

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informational and educational contents would be forced into the background.17 Collins recalls these fears by citing the speech of Jacques Delors, the former president of the European Commission, given at the founding ceremony of the Audiovisual Eureka in 1989, in which Delors elaborates that we should not treat culture in the same way as we treat other commercial commodities and we should not leave its fate to market powers pursuant to the principle of laissez-faire. Simultaneously he poses the question to our ‘American friends’ whether ‘we have the right to live?’18 Returning to the draft report and deducting the conclusions from this train of thoughts, the regulatory institutions of the EU arrived at the conclusion that Member States legislators must create an environment that adequately protects cultural identity by promoting national creations without applying restrictive means, for instance measures that are discriminative or restrict competition.19 It is apparent from the wording of the draft report that in this case, the EU basically determines the direction to be followed by the Member States in a framework document preparing the Community regulation of cultural issues that actually fall under the competence of the Member States! The targeted aims cover the support of high quality European programmes, the development and support of the entire European broadcasting industry,20 in addition to the preservation of cultural perception in respect of television media services. The 1986 Council proposal for the TVWF Directive21 contains cultural targets among the aims to be achieved by Community legislation, nevertheless, the draft TVWF Directive constantly links these cultural targets with economic goals. Such economic indicators include, among others, the increase in the volume of television production by way of which the related national cultural industries could be developed, while facilitating the expression of the special cultural identity of a given Member State; supporting medium-sized enterprises in entering the cultural industry; facilitating broadcasting in order to promote cultural exchange besides the economic focus of European integration.22 In summary, it could be said that in the 1986 draft TVWF Directive cultural targets were set in parallel with economic goals.

17 This has occured by the second part of the 1990s with the liberalisation of audiovisual media market, in addition to the spread of commercial media and multi channel broadcasting. 18 Collins, 1993, p. 362. 19 Jelentéstervezet 4.4.-4.7. pontok. 20 Id., 4.8. pont. 21 Proposal for a Council Directive on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of broadcasting activities, COM(86)146 final/2, 6 June 1986. 22 Id., 3. pont.

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27.3.2

Shaping the Text of the TVWF Directive

Scholarly literature highlights that the concrete legal text of the TVWF Directive appeared very late in the legislature process, moreover, when the text was released it was deemed as a concession to France. The draft TVWF Directive primarily intended to ensure the free movement of broadcasting services within the internal market and to dismantle barriers and regulatory restrictions distorting competition. The programmes of the Member States and language quotas could be identified as obstacles typical of France, a country possessing a significant and complex cultural toolkit for the support of its national audiovisual industry. In this respect, two possible solutions existed: either the abolition of restrictive standards in the course of harmonisation, or the harmonisation of national quota rules, as in the case of other Directives. Finally, the latter solution was chosen as France intended to further support its own broadcasting and film industry, moreover, France did not want foreign competitors who unrestricted by stringent quota rules as those set out in the French system to enter the market.23 In case we assess the question from a European dimension and not from a Member State perspective, we may say that the inclusion of the quota rules into the TVWF Directive could basically be considered as a result an agreement forged between cultural, interventionist approaches, the so-called dirigiste trends and the liberal trends prioritising the common market.24 As regards the specific regulation, according to the 1986 draft TVWF Directive, at least 30% of the transmission time shall be reserved for television films25 produced within the framework of Community works and this proportion shall be increased to 60% within 3 years. Similar progressive regulations were proposed in respect of television programmes produced by independent producers within the framework of Community works, however according to the draft proposal, in this case the broadcasters shall increase the transmission time from 5% to 10% within a period of three years.26 The 60% rate otherwise mirrored the French broadcasting quota rule system which was finally reflected in the text of draft TVWF Directive.27 The so-called Barzanti Report issued in 198728 mirrored the opinion of the European Parliament’s respective commission and slightly amended the content of the European 23 Cf. O. Castendyk, ‘Quota for European Works’, in O. Castendyk et al. (Eds.), European Media Law, Kluwer Law International, The Hague – London – Boston, 2008. pp. 429-456, n. 13, lj, pp. 435, 440; Gibbons and Humphreys, 2012, pp. 75-79, 140; I. Katsiera, ‘Why European Broadcasting Quota Should Be Abolished?’, 28(2) European Law Review (2003), pp. 190-209, pp. 191, 208. 24 Collins, 1993, pp. 374-375. 25 European works. 26 L. TVWF irányelvjavaslat 2. és 3. cikk. 27 Id., 55, pont. 28 Report drawn up on behalf of the Committee on Legal Affairs and Citizens’ Rights on the proposal from the Commission of the European Communities to the Council (COM(86)146-final – Doc C 2-38/86) for a directive on the coordination of certain provisions laid down by law, regulation or administrative action in

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Commission’s draft proposal prepared in 1986. The Brazanti Report maintained the aim that 60% of the broadcast programmes shall be Community works but annulled the corresponding 30% minimum rate and provided moderate rules in respect of paid and thematic channels.29 The rigorous quota rules almost thwarted the adoption of the TVWF Directive, but following the resolution of a significant political tension, France finally agreed the tempered version of the TVWF.30

27.4

Review of the TVWF and AVMS Directives’ Quota Rules

The 1989 legislation maintaing the duality characteristic of the preparatory materials of the directive, namely the legislator considered that the norms of the TVWF Directive in respect of quota rules express both cultural and economic aims. The preamble of the TVWF Directive clearly states, that co-ordination is nevertheless needed to make it easier for persons and industries producing programmes having a cultural objective to take up and pursue their activities directly. Next, the text of the TVWF Directive identifies the minimum requirements in respect of all public or private European television programmes for audiovisual productions as one of the fundamental means of promoting the above mentioned cultural objective due to the fact that in its cultural part audio-visual industry promotes production, independent production and distribution. While the obligation to broadcast European television programmes aims at promoting markets of sufficient size for these cultural productions to recover the necessary investments,31 the applicable norms in respect of the productions created by independent producers, including broadcasting time or obligations regarding the budget of production, also aim to attract new financial resources as well as establishing the appropriate for founding small and medium-sized enterprises.32 Castendyk points out that the reference to such cultural objectives were set out in recital 25 of the preamble of the 1997 Directive33 amending the 1989 directive which refers to Article 128 of the Maastricht Treaty34 according to which the Community needs to take into account cultural aspects in the course of pursuing its activities falling under other provisions of the Treaty.35 Besides economic and cultural objectives, in the amendment

29 30 31 32 33 34 35

Member States concerning the pursuit of broadcasting activities. Session Documents 1987-1988, A2-246/87 (a továbbiakban Barzanti jelentés). Id., 22, 23. Castendyk, 2008, p. 436. TVWF Directive Art. 4(1). Id., Art. 5(1). European Parliament and Council Directive 97/36 OJ 1997 L 202/60. Castendyk, 2008, pp. 433. Art. 151(4) TEC, Art. 167(4) TFEU.

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to the TVWF Directive adopted in 1997 the promotion of competitiveness emerged as a new objective of the EU.36 The Directive was extensively modified as compared to the proposal prepared by the Commission and the draft opinion of the Parliament. The rules related to the promotion of distribution and production of television programmes were tempered and according to the new rules, broadcasters had to reserve the majority of their transmission time for European works,37 therefore the abovementioned proportion of transmission time was reduced to 50%. Moreover, the principle of progressiveness and the minimum proportion criteria was retained with slight modifications. Namely, in order to attain the broadcasting of European works exceeding 50% of the transmission time, the performance of the Member State concerned had to be taken into account with the progressive increase in transmission time following the rules set out in the TVWF Directive.38 According to the new provisions, Member States had to ensure that broadcasters reserve at least 10% of their transmission time for European productions created by independent producers, furthermore, in this respect the 10% portion of the programming budget also remained. Nevertheless, rules were retained regarding the minimum portion requirements.39 The purpose of Article 6 of the TVWF Directive is assist in the interpretation of quota rules by defining the notion of ‘European works’. Effectively, on the basis of four independent criteria an audiovisual work may fall under the scope of Articles 4 and 5 of the TVWF Directive. The connecting link between the criteria is European establishment, therefore, a production could be qualified as a European work based on the origin of the workforce, the producer, persons who supervise and control the production or the source of funding.40 The quota rules regarding television broadcasting did not change with the AVMS Directive.41 However, an important, albeit slight adjustment was made to the rules in respect of European works to promote on-demand audiovisual media services.42 The expansion is very minor as the phrasing of the text is similar to the rules governing the broadcasting of television programmes; at the same time, the rules did not determine specific target proportions to be achieved.

36 Id. The author miscorrectly refers as Sections 5 and 28 of the preamble of directive 36/97/EK highlights the development of competitiveness regarding programme industry. 37 TVWF Directive Art. 4. 38 Id., Art. 4(2). 39 Id., Art. 5. 40 O. Castendyk, ‘Definition of European Works’, in O. Castendyk et al. (Eds.), European Media Law, Kluwer Law International, The Hague – London – Boston, 2008, pp. 471-487, 474. 41 TVWF Directive Arts. 1(1) point n), 16-18. 42 Id., Art. 13.

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27.5

Quota Rules in Respect of Audiovisual Media Regulation – On the Borderline of Economic and Cultural Considerations

Member State Solutions – National Quotas

As it became apparent from the target system of quota provisions, the reason for adopting common EU rules was to provide a regional answer to global processes. Namely, on the one hand to protect and support the European audiovisual industry from the pressure exerted by the USA’s film industry, and consequently, on the other hand, to increase and strengthen European television programme production potential, including European and co-production works, by facilitating the appearance of new small and medium-sized enterprises and unifying the available resources. The question is whether Member States could identify with this broader goal and to what extent they made use of these rules for local and national purposes, basically for the support of their own audiovisual industry, by setting up national quotas in their audiovisual media regulation. In the following I will assess the quota rules from the perspective of EU Member States with substantial economic power, next, I shall turn my attention to Member States with a smaller audiovisual industry.43

27.5.1

National Quotas in Larger EU Member States

It is worth opening with France because, as already indicated above, the evolution of the quota rules was largely due to the fact that France intended to preserve its own television and film support scheme through developing extensive EU rules. As some authors point out, the cultural policy pursued in France consists basically of a ‘complex protectionist quota and support system’44 and only a part of this covers the promotion of producing and broadcasting national television programmes. As it appears from the 1986 draft TVWF Directive, French television quota rules are more stringent than the relevant EU provisions since linear audiovisual media service providers are required to reserve at least 60% of their transmission time for European works and at least 40% for originally French language works (d’oeuvres d’expression originale française). This proportion must be observed in all cases in prime transmission time.45 Originally French language works also include creations produced in regional languages, such as Breton. It is worth noting that the 40% quota in respect of French language works is deemed to be part of the European quota. Thematic

43 The study merely assesses quota rules at the level of Member States with respect to traditional (linear) television and radio broadcasts, therefore it does not cover the requested audiovisual media services. 44 Gibbons and Humphreys, 2012, p. 75. 45 The French media law (Loi n° 86-1067 du 30 septembre 1986 relative à la liberté de communication (Loi Léotard) Version consolidée au 17 novembre 2013). Art. 70, and also the executive decree (Décret n° 90-66 du 17 janvier 1990 pris pour l’application de la loi n° 86-1067 du 30 septembre 1986 et fixant les principes généraux concernant la diffusion des oeuvres cinématographiques et audiovisuelles par les éditeurs de services de télévision.) Art. 7.

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satellite and cable channels are exempted from these stringent rules in case they agree to support the French independent production sector; nevertheless, the 50% European quota proportion is applicable to them as well. Moreover, public and commercial broadcasters are required to invest in the production of French audiovisual creations and films up to a certain percentage of their revenues achieved in the previous year.46 In the United Kingdom, public service oriented content obligations to reflect local, regional or national communities’ demands corresponded to quota requirements.These requirements were relatively stringent, since the former regulatory authority, the Independent Broadcasting Authority (IBA), obliged the ITV rendering public services on commercial grounds at the time, to dedicate 86% of its broadcasted programmes to British productions, which was later reduced to 65% by the Broadcasting Act adopted in 1990. For public broadcasting entities the new Communication Act adopted in 2003 prescribes programme quotas in respect of independently produced works that are originally created in the United Kingdom or created regionally, thus, Ofcom plays a major role in the development of quota rules.47 It follows from the legislation that terrestrial broadcasters need to comply with stricter quota rules in the United Kingdom than set out in the AVMS Directive, furthermore, EU requirements are applicable for cable and satellite broadcasters, albeit these rules are rarely observed.48 In Germany there are no specific quotas regarding national production and the respective EU regulations applicable to all German broadcasters are referred to in Article 649 of the interstate treaty on broadcasting.50 We must note that Article 6 paragraph 1 generally represents the cultural model and approach to the audiovisual industry by declaring: ‘television broadcasters shall contribute to the protection of German and European television and film productions as they form part of our cultural assets and audiovisual heritage.’ Article 6 paragraph 2 expresses the EU requirement of broadcasting predominantly European works in the transmission time; however, the provision makes clear that European quotas may also be fulfilled by German productions. The lack of specific national production quotas did not affect negatively the production of German television programmes, as a matter of fact, in 2007 Germany produced television programmes in the value of £ 4.5 billion which is considered to be the highest amount in Europe. This outstanding result could be accomplished due to a number of factors, for instance, the relatively high level of public funding, i.e. the operation fee provided for public broadcasting, the large internal

46 47 48 49

Gibbons and Humphreys, 2012, pp. 75-76. Communications Act 2003, Arts. 277-278, 285-289. Gibbons and Humphreys, 2012, pp. 102-103. W. Schulz et al. (in cooperation with T. Wind), ‘Regulation of Broadcasting and Internet Services in Germany – a Brief Overview’, Arbeitspapiere des Hans-Bredow-Instituts, Nr. 13, 2nd edn, March 2008, pp. 13-14. 50 Fünfzehnter Staatsvertrag zur Änderung rundfunkrechtlicher Staatsverträge (Fünfzehnter Rundfunkänderungsstaatsvertrag vom 15./17.12.2010).

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market and export capacity to the culturally and linguistically similar countries such as Austria and Switzerland all supported this development.51 In Italy the harmonisation of the AVMS Directive was implemented by Legislative Decree number 177 of 31 July 2005.52 Articles 6 and 44 of the Legislative Decree regulates quota rules, while Decree number 66/09/CONS of 13 February 200953 issued by the unified regulatory authority, the Autorità per le Garanzie nelle Comunicazioni (AGCOM), details the rules on implementation. According to the authors Apa and Cavalcanti, Article 3 of the decree sets out that in case of pay-per view services, at least 10% of the transmission time must be maintained for European works not older than 5 years, and at least 20% of these works must be originally in Italian language irrespective of the place of their production. In terms of independent production, an AGCOM decision declares that free-to-air broadcasters are required to set aside 30% of their annual revenue for creations that comply with the conditions of ‘Italian culture’, which portion is 35% in case of paid television services.54

27.5.2

National Quotas in Smaller EU Member States

As for the quota rules of smaller EU Member States, Belgium, due to its unique constitutional system, attempts to mirror territorial, linguistic and cultural differences and diversities in its quota rules. Article 154 of the Flemish media act55 and Article 44 paragraph 1 of the Walloon media act56 both integrated the provisions of the AVMS Directive in respect of European works, providing that 50% of the respective quotas need to be reserved for Dutch and French speaking programmes or for the creations of authors originating from Flemish and Walloon communities. The mentioned Articles, namely Article 154 and Article 44 paragraph 2 contain the provisions of the AVMS Directive in respect of independent producing which also imply a constraint, namely, that the majority of the quotas

51 Gibbons and Humphreys, 2012, p. 126. 52 Decreto Legislativo 31 luglio 2005, n. 177, Testo unico dei servizi di media audiovisivi e radiofonici (Az audiovizuális és rádió médiaszolgáltatáokról szóló törvényerejű rendelet, olasz médiakódex), . 53 Delibera N. 66/09/CONS Regolamento in materia di obblighi di programmazione ed investimento a favore di opere europee e di opere di produttori indipendenti adottato ai sensi degli articoli 6 e 44 del decreto legislativo 31 luglio 2005, n. 177. 54 E. Apa and S. Cavalcanti, ‘Italian Broadcasters Face New Rules on Quotas of European-Created Content’, 20(7) Entertainment Law Review (2009), pp. 266-268. 55 27 March 2009 – Decreet betreffende radio-omroep en televisie. 56 26 March 2009 – Arrêté du Gouvernement de la Communauté françaiseportant coordination du décret sur les services de médias audiovisuels.

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which fall under the reserved 10% must be filled with the creations of producers originating from Flemish or Walloon communities.57 In addition, some communities prescribe substantive obligations for public broadcasters. According to the agreement between the government of the Flemish community and the Vlaamse Radio- en Televisieomroep (VRT), the VRT shall aspire with regard to linear television services to maintain at least 50% of its transmission time between 6 p.m. and 11 p.m. for Flemish (co)produced creations and regarding radio broadcasting at least 20% of the transmission time should be maintained for Flemish music productions. The Walloon government concluded a similar agreement with the Radio Télévision Belge Francophone (RTBF), the respective public broadcasting authority, and similarly to the statutory solution, Article 15 stipulates that the RTBF should broadcast European works in the proportion of 55% which will include the works of authors originating from the French community, furthermore, 35% of the transmission time should be reserved for works authored or produced by French speaking experts. The agreement also indicates that creations of the French community should be included in the quotas (10%) of independent producers. In addition, Article 43 paragraph 1 of the French community’s media act includes programme structure quotas to support producing musical creations. Pursuant to the provision, all television programme editors are required to reserve 4.5% of the annual transmission time for songs which were written, produced, composed or performed by a person living in the French Region or in the Brussels Capital Region. A similar requirement is also stipulated with respect to radio programme editors.58 The Dutch media act59 also contains provisions deviating from the quota rules of the directive. According to Article 2.112 of the Dutch media act, at least 50% of all public national or regional television media services shall comprise productions that are originally produced in Dutch or in Frieze languages and according to Article 3.24 this proportion shall be 40% in case of commercial media suppliers. As Article 15 paragraph 1 of the Polish media act60 sets out, television production broadcasters shall reserve 33% of their transmission time for creations originally produced in the Polish language. Article 15 paragraph 2 requires the same proportion of radio broadcasters (except for nationality and ethnic minority radios) in respect of Polish songs and 60% of songs sung in Polish shall be broadcast between 5 a.m. and 24 p.m. According to the Portuguese Act on television services,61 in compliance with Article 44 paragraph 2 of the Act on the protection of Portuguese language, nationwide television 57 P. Valcke and E. Lievens, Media Law in Belgium, Wolters Kluwer International, The Netherlands, 2011, p. 97. 58 Id., p. 98. 59 Wet van 29 december 2008 tot vaststelling van een nieuwe Mediawet (Mediawet 2008). 60 Ustawa z dnia 29 grudnia 1992 r. o radiofonii i telewizji. 61 Lei n.° 27/2007, de 30 de Julho (Lei da Televisão), www.anacom.pt/render.jsp?contentId=979660&languageId=1.

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broadcasters shall broadcast in the proportion of 50% productions during their transmission time, that have been produced originally in Portuguese. Apparently, this provision exclusively includes productions that are short-listed by the AVMS Directive – this is the socalled negative list. Pursuant to the subsequent paragraph, these television channels are obliged to maintain at least 20% of their transmission time for ‘creative’ productions originally produced in the Portuguese language. Article 2 paragraph 1 item c of the Act seeks to determine the definition of ‘creativity’, denoting creations comprised of structured creative elements, fictional or animation productions, documentary films, television dramas, cultural or art productions and also political productions. Article 5 of the Spanish audiovisual act62 regulates the right to cultural and linguistic diversity (El derecho a la diversidad cultural y lingüística). With respect to European productions, Article 5 paragraph 2 refers to the 51% rule of the AVMS Directive, moreover, the act also requires that at least 50% of the European quota be maintained for creations produced in the Spanish language. Article 85 of the Slovenian media act63 prescribes that in the daily transmission time each television production broadcaster shall broadcast their own programmes at least in the proportion of 20% and in prime time, that is the period between 6 p.m. and 10 p.m., this proportion shall be increased to 60%. Article 86 of the media act sets out that at least 20% of the daily music programmes of radio and television production broadcasters must be filled with music creations that include Slovenian music or music productions that are created or performed by Slovenian artists. In respect of the Slovenian public service broadcaster (Radiotelevizija Slovenija) this figure shall be increased to 40% in relation to each and every broadcast. Article 87 of the Slovenian media act regulates national quotas as well and paragraph 1 prescribes, as a general obligation, that television broadcasters shall aspire to mainly broadcast Slovenian audiovisual works in the course of their annual transmission time. However, paragraph 2 determines a 2% minimum ratio which shall be increased annually until it reaches the 5% level. The Hungarian media regulatory framework64 also contains national quotas. The Hungarian regulation adopted the solutions set out in the AVMS Directive, namely that ‘the media service broadcaster shall broadcast European works over half of its annual transmission time of linear audiovisual media services and Hungarian works over onethird of its transmission time Hungarian works’65 On the basis of the 10% rule of the AVMS Directive, the Hungarian media act associates an 8% Hungarian quota rule in respect of

62 Ley 7/2010, de 31 de marzo, General de la Comunicación Audiovisual, http://noticias.juridicas.com/base_ datos/Admin/l7-2010.html. 63 Zakon o medijih – ZMed (Uradni list RS, št. 35/01 z dne 11. 5. 2001), http://pisrs.si/Pis.web/pregledPredpisa?id=ZAKO1608. 64 Act CLXXXV of 2010 on media services and mass-communication. 65 Mttv. Art. 20(1) point a).

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independent production, in other words, productions that are produced by independent Hungarian programme producers.66 These proportions are higher in respect of public media service providers, as at least 60% of the annual transmission time of linear audiovisual media services shall comprise European works, while this ratio is at least 50% in case of Hungarian works. Furthermore, in respect of independent producers the 25% minimum quota rule shall apply uniformly.67 In case of linear radio media services, at least 35% of the annual transmission time that is dedicated to broadcast musical creation, shall comprise Hungarian musical works.68 Briefly summarising the above mentioned examples we can come to the conclusion that, besides fulfilling their implementation obligations, the majority of the Member States have made use of the possibility provided for by the provisions of the TVWF and AVMS Directives regarding the promotion of the production and distribution of European works in order to support national audiovisual industry, irrespective of smaller or larger Member State media markets. Germany is an exception since, due to the above described reasons it was not necessary to establish separate national quotas. In case of Belgium, national quotas are regulated quite extensively, with provisions reflecting the Belgian constitutional system, namely the regulatory framework mirrors the national and linguistic regions. The national rules emerge as linguistic quotas in most of the cases: they are applied in respect of productions originally produced in the language of the state concerned and subtitled productions are not included. Furthermore, there are solutions that follow the logic of the concept of ‘European’ works prescribed by the directives, while binding national quotas to the (native) tongue of programme creators, such as performers or producers. Finally, Member States apply the principle of geographical origin, according to which national quotas are bound to the fact that programme creators are settled in a particular Member State. It may also be observed that the proportion of national quotas is unequivocally higher in the case of public service broadcasters than in the case of commercial broadcasters. This phenomenon could be explained partly by the fundamental mission of public service broadcasting, in other words, with the purpose of universal national media service providers, and partly by the historical fact that erstwhile, public broadcasting was a state monopoly which also meant that the state was the main customer in the national audiovisual media industry. The examples mentioned clearly illustrate that besides television broadcasting, certain Member States also apply national quotas in respect of radio broadcasting. The regulations of some Member States prescribe rules related to the broadcasting of national productions

66 Id., Art. 20(1) point b). 67 Id., Art. 20(3). 68 Id., Art. 21(1).

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in order to distribute them to the citizens of the Member State concerned, therefore, the provisions either propose broadcasting in prime time, or intend to exclude broadcasting from the period effectively less interesting for the consumers between 24 p.m. and 5 a.m.

27.6

27.6.1

Conclusions

The Place of Quota Rules in the Framework of the EU’s Audiovisual Rules

Corresponding to the initial thesis of the current paper, the first question regards the place of quota rules in the framework of the EU’s audiovisual regulatory policy, taking into account the different economic and cultural approaches. The scholarly literature draws attention to the duality reflected in the individual regulatory objectives. Keller interprets the respective rules as seeking to provide a balance between the goals of national cultural policies and the imperative of guaranteeing free movement and fair competition, securing market access to enable market integration. This may be explained by the fact that besides fearing of the overwhelming pressure of the American film industry and its cultural impacts, the EU also realised the limited opportunities inherent in the European film industry, taking into account that European film production and distribution is historically fragmented and underfinanced. Therefore, besides (Member) State subsidiaries operating in the public media sector and the national film industry, Keller also deems quota rules to be fundamentally cultural instruments.69 Keller’s train of thought can be further complemented by drawing attention to the duality under European media policy: while the quota rules, as implementing instruments of the TVWF Directive aim at accomplishing cultural unity, the purpose of the so-called MEDIA program70 launched in 1989 is to achieve cultural diversity. The imperative of unity in diversity represents a shift in European audiovisual policy, with the sustenance of European cultural diversity replacing the aim of achieving cultural unity – indeed, the two concepts were merged and the phrase ‘unity in diversity’ has become the motto of the EU.71 As previously mentioned, according to the dirigiste trend, political and cultural unity are indispensable to achieve economic unity. This approach relies on the assumption that European unity cannot be accomplished without the participation of European citizens, indeed, they must be motivated in respect of the integration process by the establishment

69 Keller, 2011, pp. 455-457. 70 MEDIA Programme http://ec.europa.eu/culture/media/index_en.htm. 71 The EU motto http://europa.eu/about-eu/basic-information/symbols/motto/index_en.htm.

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of a common European identity. Well-informed European citizens are a crucial precondition for the development of a common European identity. This may be served by utilizing the potential of audiovisual services, with media and broadcast contents acquiring a significant role. Although cultural approaches have become legitimate aspects of European audiovisual policy taking into account the idea of cultural unity, concerns have been voiced in respect of ‘cultural uniformisation’ as an ultimate objective. Uniformisation goes together with intensive growth, the division of labour and competition which adversely affect the cultural creations of less effective programme producers originating mainly from Member States that are located linguistically and geographically on the periphery. Thus, while cultural unity supported by the quota rules provided an answer to the fears according to which the establishment of a unified broadcasting market would render the audiovisual sector of the European community vulnerable against the external, typically North-American competition, the MEDIA programme, which was basically launched in parallel with the TVWF Directive intends to manage an internal problem between the Member States by supporting the audiovisual industry of smaller Member States.72 Gibbons and Humphreys have arrived at similar conclusions as Keller, however, they place quota regulation into a broader context. They assume that European governance suffers from structural asymmetry and according to their view, the EU can achieve the neoliberal market much easier through negative integration (deregulatory policy) than by pursuing positive integration (regulatory policy) that adjusts the market. This concept is also discernable in the institutional system of the EU as negative integration, namely dismantling rules hampering free competition and free movement on the single market may be carried out much easier, since both the European Commission and the Court of Justice of the European Union have adequate competences in this field, while the task of the Council and the European Parliament to achieve legal harmonization pursuing democratic and public service goals by adjusting the market is much more exacting.73 Upon this backdrop, Gibbons considers the TVWF Directive to be a regulatory instrument with deregulative effects, opening the door to international, cross-border audiovisual services. Gibbons distinguished these instruments from positive public service obligations. His consideration were substantiated by the minimum rules laid down in the TVWF Directive which indicated a regulatory competition between the Member States due to the differences between the regulatory systems and the possibility to diverge from the minimum regulatory framework in terms of creating more detailed or stringent rules.74

72 Collins, 1993, pp. 374-376, 383-384. 73 Gibbons and Humphreys, 2012, p. 133. 74 Cf. Gibbons and Humphreys, 2012, pp. 137-140, T. Gibbons, ‘The Impact of Regulatory Competition on Measures to Promote Pluralism and Cultural Diversity in the Audiovisual Sector’, 9 Cambridge Y.B. European Legal Studies (2007), pp. 239-259; 255.

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Woods and Harrison arrive at similar conclusions as the aforementioned authors when claiming that there are economic concerns behind the cultural quotas aiming to ‘stimulate and safeguard the European culture’, as the objective of these quotas is to protect the European single market and to establish an audiovisual industry which is competitive also outside of the territory of the EU.75 As Gibbons concludes, the audiovisual rules of the EU express a protectionist and liberal policy at the same time, for the relevant provisions protect the media sector from globalisation, while in the internal market they facilitate competition between media enterprises.76 Katsiera highlights the duality manifested in the quota regulation, namely, that the economic objective of boosting European audiovisual film production, goes hand in hand with the cultural aim, which is to protect European cultural identity.77

27.6.2

Hindrances Impeding the Realisation of Cultural Objectives

Besides the formulation of regulatory objectives in respect of quota rules it is also an important question how these objectives have been effectively realised. The achievement of cultural objectives is highly disputed, moreover, relevant literature is ambiguous about its success, claiming that the implementation of quota rules lacks efficiency. In their assessment, Harrison and Woods stress that regulation focuses on the European features of producers and not on the contents broadcast, as such, we are faced with a regulation of structural nature. The quotas capture production rules, more precisely, the regulation is based on the concept whether the control of a production is in the hand of an enterprise established in the territory of the EU. Thus, the two main characteristics of the rules are the European control over the production and the financing from European sources. While the purpose of the former rule is to strengthen European production against non-European influences, the latter aims to keep profit in Europe.78 Keller and Kollins arrive at a similar conclusion, stating that the term ‘European work’ merely describes the geographical feature of a production, therefore, the expression is not suitable for clearly highlighting the differences between European and non-European impacts. Their opinion is that the visibly protectionist obligations are ‘moderately successful’ in terms of encouraging Member States to ‘accelerate the production and broadcast of European audiovisual programmes’79:

75 J. Harrison and L. Woods, ‘Television Quotas: Protecting European Culture?’, 12(1) Entertainment Law Review (2001), pp. 5-14, at p. 5. 76 Gibbons, 2007, pp. 245, 252. 77 Katsiera, 2003, p. 208. 78 Harrison and Woods, 2001, pp. 6-7. 79 Cf. Keller, 2011, p. 462, Collins, 1993, p. 378.

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There are other weaknesses inherent in quota rules which do not enable the regulatory framework to achieve the targeted cultural objectives. One of the problems, already a central issue at the time when the TVWF Directive was born, is connected to the notion of ‘European culture’. In case we expect cultural impacts from these provisions, i.e. the protection of European culture and cultural identity, a common definition on ‘European culture’ is indispensable. The European Union, previously the European Community, did not specify exactly what is meant under the expression ‘European culture’ which is deemed the subject of protection. The next question regards the quality of a certain content, since regulation merely focuses on the nationality of the production (structural regulation), consequently, the relationship between the origin of the producer and the cultural value of the created audiovisual product is extremely simplified. In other words, although it is clear that national quotas promote national culture and language, the regulation absolutely does not guarantee high cultural quality.80 The fact that there are no express cultural quality conditions regarding European creations, basically opened the way for broadcasters to fill the quotas with low-budget programmes.81

27.6.3

The Global Competitiveness of European Creations

The contradiction between cultural and economic aims has always been obvious but when the TVWF Directive was amended in 199782 a new objective of quota regulation was revealed pursuing the global competitiveness of European works, attempting to contribute to the success of these European creations on international markets.83 The cultural objective of quota rules aiming to promote the production and broadcasting of high quality European works, is incompatible with global economic objectives simply because the concept ignores the impacts of the global market on corporate decision-making. Pursuant to corporate decision-making there are market constraints which require the production of programmes that are well positioned on global markets. In fact, the so-called ‘formats’ have a global market and are of essentially Anglo-Saxon and not European character; these are released on the European market. The market viability of the programmes produced in line with the quota rules will depend on whether they conform to mainstream creations and not on whether they were produced for a European audience.84 Gibbons views the regulatory possibilities of the state in a more positive light in respect of global commerce. According to him, states are in the position of pursuing effective regulatory policies which defend national culture also on the international stage. Whether 80 81 82 83 84

Cf. Harrison and Woods, 2001, p. 7, Katsiera, 2003, p. 198, Collins, 1993, p. 363. Gibbons and Humphreys, 2012, p. 142. TVWF (97/36/EC) Directive. Id., Recital (27). Harrison and Woods, 2001, pp. 7, 11.

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states are able to achieve this policy depends on the effectiveness of their regulatory power in respect of the determination of national productions. This means the capability of the state to create, through its regulatory framework, a product that is typical for the regulatory environment concerned (regulated product differentiation). Effectively, this means a national cultural policy which conforms to national markets and at the same time encourages companies to produce and broadcast programmes, while withstandint the external pressure dictated by deregulation. Gibbons perceives this approach as a defensive strategy, which at the same time requires positive steps that support the sale of national products on the global market.85

27.6.4

European v. National Quotas

The purpose of including rules related to European works in the directives is to open national markets and to establish a common European audiovisual programme market, which is a rather economic objective, intending to also counterbalance the hegemony of the North-American film industry in the internal market.86 This objective is complemented by the aim of protecting European culture and identity and boosting global competitiveness. We can clearly see from the rules introduced by the above mentioned Member States that the majority of Member States fill common European quotas with their own, nationally produced creations in order to strengthen their national culture and ultimately, their audiovisual industry. Obviously, this approach goes against initial regulatory objectives, namely to promote the broadcasting of creations produced in other Member States or produced in a pan-European co-production, decreasing thereby the fragmentation of the EU’s internal market. Irrespective of the indicated aspirations, the audiovisual market within the EU remains fragmented due to cultural and linguistic constraints.87 It is not surprising that Member States have introduced national protectionist provisions by referring to European quota rules. Firstly, because the concept of ‘being European’ on the one hand means that Member States stand on common grounds and they share common roots, on the other hand, the term expresses respect towards cultural differences between Member States as well as European cultural diversity.88 Thus, national quota rules are deemed to be in compliance with European regulation. Secondly, as previously mentioned in relation to the history of the regulatory framework, EU regulation has outgrown the regulatory scheme of a single Member State, resulting in the spread of the French model throughout the EU. 85 Gibbons, 2007, p. 244. 86 According to Katsiera it has already been materialised by the adoption of the TVWF Directive and the inauguration of the quota rules was not necessary. See Katsiera, 2003, p. 208. 87 Collins, 1993, p. 379. 88 Harrison and Woods, 2001, p. 8.

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Last but not least, the collision of economic interests behind European quotas also deserves attention. Common European aspirations support the economic goals of the Directives, namely the access to European markets of creations originating from another Member State and the promotion of the production of pan-European co-production works, which approach actually favours larger Member States with major film production capacities at the expense of Member States with smaller audiovisual industries. Although, initially one of the objectives of the European quotas was to take actions against the perceived cultural imperialism of the American media industry, the effective result of the European rules is in fact is the dominance of German, French and British programmes in smaller markets which is actually detrimental to cultural diversity, which would have been the other objective of the directive.89 This conflict was revealed in 2003 when the TVWF Directive was reviewed in the course of public hearings.90 In response to national quotas, the Member States and enterprises concerned indicated several times both in the hearing and in their respective written comments91 that it would be a ‘positive progress’ if new sub-quotas would be established for non-nationally produced European works.92 The proposal was finally not included in the AVMS Directive. In summary it could be stated that the opinions in connection with the utility of quota rules included in the TVWF Directive and maintained in the AVMS Directive are quite divergent, the common being the criticism of the established scheme. Except for views which would prefer the elmination of the regulatory system,93 a common opinion may be outlined according to which quota rules are a moderately positive integrational element, resulting from a compromise between the economically liberal94 and culturally committed interventionist (dirigiste) trends95 prevailing in Europe.96 While quota rules point toward homogenisation in the internal market, they effectively ensure protection against the audiovisual dominance of the USA.97

89 Gibbons and Humphreys, 2012, p. 142. 90 Public consultation on the review of the ‘Television without Frontiers’ directive, 2003, http://ec.europa.eu/ avpolicy/reg/history/consult/consultation_2003/index_en.htm#hearings. 91 Written contributions, http://ec.europa.eu/avpolicy/reg/history/consult/consultation_2003/contributions/ index_en.htm. 92 I. Katsiera, Public Broadcasting and European Law. A Comparative Examination of Public Service Obligations in Six Member States, Kluwer Law International – Wolters Kluwer, The Netherlands, 2008, p. 295. 93 Katsiera, 2003. 94 For instance the United Kingdom, Germany and Denmark which states were lobbying against the regulation. 95 While France, Spain, Italy and Belgium were lobbying on the side of the regulation. 96 Cf. Gibbons and Humphreys, 2012, p. 140; Gibbons, 2007, p. 257; Castendyk, 2008, p. 435; Collins, 1993, pp. 374-375. 97 Gibbons, 2007, pp. 257.

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Part V Hungarian State Practice

28

Traps of Judicial Cooperation in Criminal Matters: The Tobin Case

Petra Bárd*

28.1

Introduction

In 2002 the Hungarian court adopted its judgement regarding the case of the Irish driver, Francis Ciarán Tobin who hit to death two children in Hungary in April 2000. According to the final judgement, the court imposed three years of imprisonment provided that the inmate could not be released earlier than eightteen months and he was also banned from public driving for 3 years. Mr. Tobin left Hungary during the first instance procedure. His criminal offence remained unpunished until 2014 and he was not surrendered from Ireland to Hungary for executing his sentence even though EU law has made surrender in such cases obligatory. Pursuant to the 2002/584/JHA framework decision of the European Union on the European arrest warrant and the surrender procedures between Member States1 (the ‘Framework Decision’) surrendering the defendant to the requesting country could be mandatory if the requesting court issued an arrest warrant in order to execute a sentence which is of at least 4 months prison term and if the Framework Decision does not set out grounds for non-execution. In case of Mr. Tobin such non-execution grounds did not exist. The case confirms my three hypotheses in relation to European criminal law. My first hypothesis is a rather obvious point the case convincingly proves: European criminal justice that used to operate along the lines of intergovernmentalism was inefficient. Historically joint crime prevention and criminal investigation deemed as the counterpoint of free movement of persons.2 However, a field of law which slowly develops on a case-by-case basis is not suitable for remedying the negative side-effects of an expanded freedom. I believe that only closer cooperation between Member States pursuant the dictates of supranational EU law could ensure effective crime prevention and prosecution in a progressively uniting Europe. Although the Lisbon Treaty scrapped the Union’s former pillar system and moved criminal law under the heading of supranationalism, the reminiscent * 1 2

Head of Department for Criminal Law Science, National Institute of Criminology, Budapest. E-mail: [email protected]. Council framework decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA), Official Journal L 190, 18 July 2000, pp. 1-20. See: Section 2 of Art. 3 of the Treaty on the European Union (formerly Art. 2 of EC Treaty).

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of intergovernmentalism is still there, since Union law still allows for a number of exceptions and exemptions in the field. Also voices anxious about national criminal sovereignity and those propagating the reallocation of powers between Member States and the Union to the detriment of the latter in the area of freedom, security and justice become louder and louder. Therefore I consider my seemingly obvious point on blaming European criminal justice to be ineffective or even inoperational if intergovernmentalism was retained, an important one. Lobbying for less Europe in the criminal field will lead to substandard laws representing shallow compromises, inefficient application and lack of enforceability. My second hypothesis overrides the terrain of criminal law. I predicate that partial communautarisation of criminal law, in addition to fully accepting the priority of EU law will not occur and consequently, Member States will not resign, not even, from a part of their national sovereignty until the human rights paradigm, namely the EU’s so-called fundamental rights culture,3 is not expanded with respect to the field of criminal law including criminal procedural guarantees and minimum harmonisation rules regarding prison conditions. In this paper I will proceed as follows. In the second chapter the facts of the case will be presented along with procedural history in Hungary, i.e. the first instance decision and the final judgment determining Mr. Tobin’s criminal responsibility and imposing sanctions. The third chapter addresses the European arrest warrants issued for the execution of Tobon’s prison sentene and the denial of surrender in the first round, which was the result of a faulty implementation of the European arrest warrant on the side of Ireland. This mistake was remedied by the Irish legislative and by reference to the amended law, Hungary issued another arrest warrant. In the fourth chapter the reasons of the Irish court for rejecting surrender again in a second round will be examined in greater detail. The fifth chapter includes a review of the extralegal elements of the case, such as the political controversies between the two states that highly affected the outcome of the actual case. In the sixth chapter the road to the solution of the Tobin case will be explained. In the seventh chapter I will provide the theoretical framework explaining how the fear to transfer part of national sovereignity led to the refusal of complying with a European arrest warrant and boycotting the enforcement of a prison sentence. I will also summarise the lessons learned as to the functioning of EU criminal cooperation along intergovernmental lines and formulate some recommendations for the future.

3

Communication from the Commission, Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union, Document COM(2010)0573, final, 19 October 2010.

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28.2

Traps of Judicial Cooperation in Criminal Matters: The Tobin Case

Facts of the Case and Procedural History

On 9 April 2000, the 36 years old Irish citizen, Francis Ciarán Tobin was driving through a Hungarian village with his company’s S40 Volvo with 70-80 km per hour, a significantly faster than the allowed 50 km per hour speed limit. His pregnant wife and family friends were also travelling in the car. At quarter to four following an overtaking manoeuvre in the city of Leányfalu on the way from Visegrád to Szentendre, he hit two children, the four and half years old Márton Zoltai and his one and a half years old sister, Petra, who both died at the scene. The Pest County Chief Prosecutor’s Office brought charges against Mr. Tobin for recklessly causing road traffic accident resulting in death.4 At the time of the offence, Mr. Tobin has been resident in Hungary as senior manager of the Irish Life insurance company. he had initially been required to surrender his passport, it was subsequently returned to enable him to travel to Ireland for the wedding of his wife’s sister. It was on 28 August 2000 that Mr. Tobin requested the return of his passport by referring to the important family event. The Irish ambassador, Jim Flavin also supported the return of the passport in his letter written on 18 September, when the diplomat stated: ‘I personally know Mr. Tobin for more than one year and I greatly appreciate him.’5 Upon the initiative of the Pest County Chief Prosecutor’ Office, the Buda Surroundings District Court6 allowed the return of passport to Mr. Tobin and pursuant to the criminal procedural code,7 the court also ordered the defendant to deposit HUF 500,000 as so-called insurance. The sum of the insurance was deposited and Mr. Tobin authorised his defence attorney to receive official documents on his behalf, then he left Hungary. In possession of his lawfully returned passport, Mr. Tobin travelled to Ireland with his family and after the wedding he came back to Hungary on 9 October 2000. His defence attorney notified the court on the same day that the defendant was in Hungary again; nevertheless the Hungarian State did not show interest towards Mr. Tobin. He was not required to submit his passport to the Hungarian authorities and no action was taken with respect to ensuring Mr. Tobin’s presence during the procedure or providing his return in case of imprisonment. At the end of November 2000, Mr. Tobin’s definite term labour contract expired and he travelled back to Ireland with his family. He had valid residence permit until 31 December 2000, therefore after this period he could not stay legally in Hungary, even if he intended to, unless he undertook certain steps in this respect.

4 5 6

7

Pest County Chief Prosecutor’s Office, Indictment No. 2644/2000/2, 28 August 2000. Zsófia Gergely, ‘Nagykövet kampányolt az ír gázoló hazaengedéséért’, www.origo.hu/itthon/20080413nagykovet-kampanyolt-az-ir-gazolo-hazaengedeseert.html (13 April 2008). As pursuant to the traditions in common law countries we identify the Irish judges by their names, I intend to also identify the Hungarian judges by their names. Mária Ficzere Bereczné passed the decision allowing the deposit of insurance. Para. (1) of Art. 393/A of Act I of 1973.

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On 7 May 2002, Mr. Tobin was convicted in absentia to 3 years of imprisonment for recklessly causing a road traffic accident resulting in death8 by the Buda Surroundings District Court, then in the procedure of second instance the Pest County Court approved the judgement with the condition that the convict could be released on probation after serving at least half of his punishment.9 The convict did not, however, return to Hungary to serve his sentence. During the Hungarian procedure two mistakes were committed. The first was allowing Mr. Tobin leave the country upon depositing insurance, and the second was letting him leave for a second time. Using the legal instrument of insurance is disconcerting from several perspectives. First, this legal institution mainly serves ground for the state to deduct the amount of the fine, if the final judgement imposes pecuniary sanction on the defendant.10 In the Tobin case, the imposition of imprisonment was highly predictable as according to paragraph (2) of Article 187 of Act IV of 1978 on the Criminal Code a person who causes road traffic accident which results in death by recklessly breaching the rules of public road transport shall be punished by imprisonment form five to ten years. At the time of allowing the deposit of insurance the charges were already known, which foretold the possibility of imprisonment. Beside envisioning pecuniary fines as sanctions the court therefore should have taken into consideration a scenario where imprisonment is imposed and where the insurance could not fulfil its function. Insurance was not suitable for guaranteeing the convict’s return to Hungary because as opposed to the public opinion, insurance is not a security deposit or. The amount of two days emolument11 would certainly not have retained Mr. Tobin to avoid punishment anyway. Letting Mr. Tobin deposit insurance is also incomprehensible because according to the relevant provision, this legal institution could be applied only if the defendant lives abroad, and however Mr. Tobin was a foreign citizen, he did not live abroad at the material time.12 The second major problem with letting Mr. Tobin leave the country without taking steps to ensure his presence in case imprisonment was the sanction was that no bilateral agreement existed between Hungary and Ireland on the basis of which extradition of an own citizen was compulsory. At the time of the accident and sentencing, extradition was regulated by a 1957 convention adopted in the framework of the Council of Europe ratified by Ireland in 1966 and by Hungary in 1993.13 This convention expressly declares that each

8 9 10 11 12 13

Buda Surroundings District Court, Case No. 2.B.1308/2000/20, 7 May 2002. Members of the section: Attiláné Pető, associate judge; Dr. Gyöngyvér Szegedi, Section Head; Józsefné Ur, associate judge. Pest County Court as court of second instance, Case No. 2. Bf. 740/2002/6, 10 October 2002. Section Head: Dr. Gyuláné Sahin-Tóth. Other members of the section: Erzsébet Garzó and Ildikó Lőrinczy. Para. (2) of Art. 393/A of Act I of 1973. http://ciaran-tobin.blogspot.hu/2012/06/humanus-jesz-kifogastalan-nem-annyira.html. Para. 1 of Art. 393/A of Act I of 1973 – ‘In case the defendant lives abroad […].’ Act of XVIII of 1994 on the announcement of the Euroepan Extradition Convention signed in Paris on 13 December 1957 and its Protocols.

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state, which ratified the convention, has to right to refuse the extradition of its own citizens.14 The idea of a European arrest warrant which ensures the surrendering of own citizens in respect of EU Member States was not yet come into existence at the time, and Hungary’s accession to the EU was also far away at that time.15 Therefore it seemed very unlikely that Mr. Tobin would ever return. In May 2004 Hungary acceded to the European Union and could soon make use of an EU instrument on simplified extradition called surrender: the European arrest warrant which provides the possibility to Member States to surrender even its own citizens for the sake of conducting criminal proceedings or in order to impose punishments on convicts.16 In Hungary the Framework Decision entered into force in 200417 and with Hungary’s accession to the EU, the possibility was given to request the surrender of Mr. Tobin. Hungary soon used this opportunity to seek the return of Mr Tobin to Hungary.

28.3

Refusing Surrender in the First Round

The issuance of the first arrest warrant is not clarified, as it could be dated somewhere between October 2004 and December 2005.18 As the EAW was considered not to be sufficiently precise, it was supplemented by two further warrants, generating some discomfitures on the side of the charge, defence and judge as well. The charges in Hungarian are identical in all of the three arrest warrants, namely the causing of criminal accident pursuant to Article 187 of the Criminal Code then in force, but the English translations are different. There are discrepancies in the historical facts in the original Hungarian texts and consequently in the English translations, too. Only the first arrest warrant, on the basis of which Mr. Tobin was arrested, emphasises that the tragedy occurred after an overtaking. The arrest warrants did not include uniformly that according to the final judgement, Mr. Tobin could be released only after serving at least half of his prison sentence. Mr. Tobin was arrested in Ireland pursuant to the first arrest warrant on 12 January 2006, then, Judge Peart, member of the High Court of Ireland, released the convict subject

14 According to Point A of Section 1 of Art. 6 of the Paris Convention on Extradition, ‘a Contracting Party shall have the right to refuse extradition of its nationals.’ 15 Mr. Tobin initiated to serve his punishment in the course of January 2014. After deducting costs related to criminal proceedings, HUF 335°296 remained from the deposit which will be reimbursed following the fulfilment of punishment. Zsófia Gergely, ‘Mi engedtük el’ – amit mindenki rosszul tud az ír gázolóról, 19 February 2014, http://hvg.hu/itthon/20140219_mi_engedtuk_el_amit_rosszul_tud_ir_gazolo. 16 See footnote 1. 17 The Framework Decision was transposed in Hungary by Act CXXX of 2003 and in Ireland by Act 45 of 2003. 18 According to the judgement of the Irish high court, 12 October 2004 is indicated on the document, while pursuant to Judge Peart it is likely that it was signed in the course of April 2005. Justice Peart from the High Court received the request to decide on the arrest warrant on 20 December 2005.

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to the payment of € 3,000 criminal bail and € 6,000 security, in addition to the seizure of his passport and fulfilling the obligation to report at the Ashbourne police station three times a week. The High Court of Ireland refused on 12 January 2007 the request for surrender on the following grounds.19 According to Section 10 of the Irish act adopted in 2003 to implement the Framework Decision,20 and amended by Section 71 of the Criminal Justice (Terrorist Offences Act),21 the convict could be surrendered for the purposes of execution if he or she fled from the issuing state before he or she commenced serving the sentence or before he or she completed serving the punishment. The court found that pursuant to the act implementing the Framework Decision, Mr. Tobin did not flee from Hungary as he left the country following the expiry of his definite term labour contract and in the lawful possession of his passport. The Minister for Justice, Equality and Law Reform submitted an appeal to the Supreme Court. On 3 July 2007 the Supreme Court did not find the appeal grounded and rejected it.22

28.4

Refusing Surrender in the Second Round

Following the unsuccessful attempt to extradite Mr. Tobin, the Irish and Hungarian legislators each responded to the discrepancies in their laws: Hungary amended the regulation on security and Ireland modified the act implementing the Framework Decision in order to avoid the refusal of extradition in similar cases arising in the future. The Irish legislator accordingly amended its criminal law with the introduction of Criminal Justice (Miscellaneous Provisions) Act, 2009. Section 6 of the 2009 Act repeals each and every obstacle to the surrender of Francis Ciarán Tobin or any other convict in a similar position. Pursuant to the amendment, which could be inspired by the troubled outcome of the Hungarian incident in the framework of which three arrest warrants were issued with different contents, future arrest warrants do not need to be ‘duly’ formulated any more. The amendment also removed the conjugative conditions according to which prior to the commencement or the completing the punishment, the convict needs to have ‘fled from the issuing state’ from the country where the arrest warrant was issued.23 19 20 21 22

High Court, Minister for Justice Equality & Law Reform v. Tobin [2007] IEHC 15, 12 January 2007. European Arrest Warrant Act 2003. Criminal Justice (Terrorist Offences) Act 2005. Supreme Court of Ireland, Minister for Justice, Equality & Law Reform v. Tobin [2008] IESC 3, 3 July 2007. Justice Fennelly provided his reasoning on 25 February 2008. Basically, the judgement did not contain new components in comparison with the judgement at first instance. 23 No. 28 of 2009 Criminal Justice (Miscellaneous Provisions) Act 2009, being effective from 25 August 2009. ‘6.—Section 10 (as inserted by section 71 of the Criminal Justice (Terrorist Offences) Act 2005) of the Act of 2003 is hereby amended— (a) by the deletion of the word ‘duly’,

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In September 2009, Hungary issued another arrest warrant on the basis of which Mr. Tobin was detained on 10 November 2009. The following day he was released in return of criminal bail, passport removal as well as reporting obligation at the police station three times a week. In relation to the issuance of the fourth arrest warrant, we may ask whether arrest warrants could be issued again and again after final refusal of surrender by referring to the change in the regulatory environment. As to their legal nature, I am confident that surrender and extradition could be considered as administrative decisions, or rather the legal instruments have both administrative and criminal law features. Given that these legal instruments do not serve to determine criminal responsibility in any way,24 the principle of ne bis in idem does not apply, or in other words there is no procedural res iudicata. As András Bragyova, judge of the Hungarian Constitutional Court, formulated in his dissenting opinion regarding the constitutional assessment of an international agreement extending the scope of the Framework Decision on the European arrest warrant to Iceland and Norway: ‘surrender is not equal to exercising punitive power or qualifying the committed criminal offence, but surrender is rather deemed as a mere administrative procedure which facilitates achieving criminal justice in the state requesting the surrender, and consequently it could be considered as a qualified legal assistance between states, in the framework of which not information is surrended or extradited, but the offender himor herself is. Surrender involves criminal law issues, nevertheless in the strict sense, surrender is not a criminal law procedure as its subject is not to determine guilt or impose punishment, but it merely aims to settle whether the conditions, including grounds for nonexecution of surrender are present.’25 The European Court of Justice has come to the same conclusion in a case decided in 2008.26 The Irish court also shared this viewpoint on the

(b) in paragraph (c) by the insertion after ‘offence’ of ‘in that state’, (c) in paragraph (d)— (i) by the insertion after ‘imposed’ of ‘in that state’, and (ii) by the deletion of the following words: ‘and who fled from the issuing state before he or she— (i) commenced serving that sentence, or (ii) completed serving that sentence’. Amendments to section 10 of Act of 2003.’ 24 Péter M. Nyitrai, Nemzetközi bűnügyi jogsegély Európában, Budapest, KJK-Kerszöv, 2002, p. 23. 25 Concurring opinion of Constitutional Judge András Bragyova with respect to Constitutional Court Decision No. 32/2008 of 12 March 2008 on the constitutional assessment of Arts. 3 and 4 of the act adopted by the Hungarian Parliament on 11 June 2007 in relation to the promulgation of the agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway, in addition to Paras. 2 and 3 of Art. 3 of the same agreement. See also Krisztina Karsai and Katalin Ligeti, ‘Magyar alkotmányosság a bűnügyi jogsegélyjog útvesztőiben’, 6 Magyar Jog (2008), pp. 399-408. 26 C-296/08 PPU case, Criminal law proceedings against Ignacio Pedro Santesteban Goicoechea, Opinion of Advocate-General Juliane Kokott, 6 August 2008, Paras. 55-56.

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nature of arrest warrants and agreed to decide in the merits whether to approve the fourth Hungarian request for surrender. Following several hearing postponements, on 11 February 2011 Judge Peart, contemplating with the Irish amendment in due course, approved the surrender request repeated in the fourth European arrest warrant.27 Mr. Tobin submitted an appeal against allowing the surrender, then 9 months after the judgement of first instance had been rendered, but prior to the adoption of the judgement of second instance, on 9 November 11 he voluntarily went to surrender custody. Mr. Tobin most likely was aware of the fact when he arrived to this decision that in case if he still needed to return to Hungary pursuant to the judgement of second instance, the months served in Ireland would have been deducted from the entire punishment. However, the Irish Supreme Court rejected Hungary’s request for surrender. On 19 July 2012 the Supreme Court of Ireland adopted its 3:2 judgement and reversed the judgement of first instance resulting in a decision where the surrender of Mr. Tobin to Hungary was refused.28 There was not any definite consensus between the judges and each of them in favour of the decision composed a separate concurring opinion, while the other judges being in minority provided their dissents. Taking into consideration the first and second instance judgements, we may conclude that altogether three judges (Justices Fennelly, O’Donnell and Hardiman) agreed on the surrender, while three other judges (Judge Peart at the first instance, Chief Justice Denham and Justice Murray at second instance) came to an understanding to refuse it. In the following I will explore the second instance decision in the second round in greater detail.

28.5

Legal Issues

Chief Justice Denham exhaustively dealt with all the possible points arising in the matter, in order to decide whether Mr. Tobin’s second-instance extradition procedure and, if so required, his actual surrender could in any way be in violation of the Irish Constitution – especially regarding the principles of the separation of powers according to Chapter 6 and of the independence of the judiciary according to Chapters 34 and 37. In the interest of resolving the issue, the prosecution and the defense agreed on addressing eight questions, some of which had several sub-questions. In my opinion, only the first major question had relevance to the matter, as there had already been decisions on all the other points at the first instance rulings, and the facts, the evidence and the relevant legal articles have not

27 High Court, MJELR v. Tobin [2011] IEHC 72, 11 February 2011 (Judge Peart does not number the paragraphs, thus I cannot provide more precise citations). 28 Supreme Court of Ireland, Minister for Justice Equality and Law Reform v. Tobin, [2012] IESC 37, 19 June 2012.

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changed, and even the composition of the panel of judges was hardly altered. Neither were the judges – even including the ones who concurred in the majority view – swayed by these excuses, with the sole exception of Justice Hardiman, who only stated that, even in the event that he hadn’t refused the request for surrender on the basis of the first point, he would have continued to study the other points listed, and could not exclude the possibility that he would have ended up refusing the surrender on these other bases. The legal issues to be decided on are the following (paragraph 16):29 – Does the procedure in the second round constitute an abuse of process, violate separation of powers, violate Section 27 of the Interpretaton Act 2005? – How to interpret the requirement of the Transfer of Execution of Sentences Act 2005 according to which a prison sentence can only be executed if the convict ‘fled’ from the issuing state? – Does lack of reciprocity, i.e. the fact that Hungary would not surrender a Hungarian citizen to Ireland in a reverse scenario have any significance? – Does the offence identified in the European arrest warrant issued by Hungary correspond to an offence under Irish law? – Taking the differences in the various European arrest warrants issued by Hungary into consideration, are they sufficiently precise so as to serve as the basis of surrender? – Can a person be surrendered to a Member State in respect of a conviction imposed by the courts of that country prior to its EU accession? – Does it influence the validity of the warrant that at the time of issuing it, the amendment to the law possibly enabling Mr. Tobin’s surrender, i.e. the provisions of the Criminal Justice (Miscellaneous Provisions) Act 2009 were not yet published and disseminated? – Can surrender be denied on other grounds, such as the period of ten years that has elapsed since the crime, the exclusion of relevant pieces of possibly exonerating evidence at the trial, the alleged threat to the life and bodily integrity of Mr. Tobin if he was returned to serve his prison sentence in Hungary? Legal issues under Points C, D, F and H.b are irrelevant with regard to the principle of mutual recognition, and this has already been declared by the courts in the first round proceedings. Still, it I worth looking into two issues in greater detail. In relation to Point F Mr. Tobin’s representatives argued that surrender of persons ‘in respect of convictions obtained under Stalinist or Nazi legal regimes’ would also be allowed if there was no temporal limit whatsoever on convictions that could be enforced under the Framework Decision on the European arrest warrant.30 One could, of course, easily repudiate this argument by 29 Some judges number the paragraphs, others don’t. Accordingly I will only indicate paragraph numbers in relation to the former judges’ separate opinions. 30 Supreme Court of Ireland, Minister for Justice Equality and Law Reform v. Tobin [2012] IESC 37, 19 June 2012, concurring opinion of Justice O’Donnell, Para. 23.

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saying that the Court issuing the arrest warrant was operating in a country that had already undergone a democratic transition and this was the guarantee for the rule of the law.31 To put it differently: in 2004 Hungary would obviously not have requested the surrender of a person charged with an act that had constituted a crime under the previous regime, if that was irreconcilable with the rule of the law. As far as Point H.b is concerned, in other words, the inadmissibility of certain evidence, it is worth noting Justice O’Donnell’s parallel opinion: ‘While it has been determined that Mr. Tobin did not flee from Hungary it is equally the case that he did not voluntarily return.’ Therefore, the circumstance that he failed to address the concerns related to the admissibility of the evidence was Mr. Tobin’s choice and responsibility.32 While Point E is relevant, the issues raised in it have been considered on merits in the first round, by the courts of both the first and the second instance, not to mention the fact that the legislature has, in the meantime, already abolished the requirement that the arrest warrant should be issued ‘duly’, presumably partly in consideration of the concerns in the Tobin case. In connection with Point G, in an act of rising to the soaring heights of legal philosophy, Mr. Tobin’s representative argued – based on concepts developed by Lon Fuller in his work The Morality of Law33 – that a law cannot properly be regarded as part of the legal system until it is officially published, implying that if for nothing else, Mr. Tobin’s surrender had been unlawful for that reason. But according to the Court, this was not a convincing argument for various reasons. First, at the time of issuing the fourth arrest warrant the law in question had already been published electronically.34 The paper-based announcement of legal norms had relevance only prior to the transition to the digital age, and was mostly known as one of the tools in the fight against totalitarian regimes. Second, according to the Strasbourg case-law, this legal principle only had relevance in the limitation of rights, while by the time of arresting Mr. Tobin, the modification had already been published in a paper-based version.35 Thirdly, and this I add myself, the modification was not the kind of substantive law instrument, to which Mr. Tobin could have adjusted his conduct, even if we were to accept the unrealistic scenario suggested by the defence that Mr. Tobin and his representatives only followed the paper-based official journal, but not the electronic publication of the legal acts.

31 32 33 34

Ibid., Para. 24. Ibid., Para. 26. Lon L. Fuller, The Morality of Law, New Haven, Yale University Press, 1969. The President signed the law on 21 July 2009, and the act of signing was reported in the official gazette on 24 July, with the modification regarding the surrender taking effect on 25 August. The Hungarian authorities issued the arrest warrant on 17 September. The full text of the modified act was published in the official gazette on 3 November, while the accused was taken into custody after that date, on 10 November. See the dissenting opinion of Chief Justice Denham, Paras. 128-133. 35 Concurring opinion of Justice O’Donnell, Paras. 19-22.

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The Court’s response to the question raised under Point H.c was that Mr. Tobin and his legal representatives had shown no evidence to confirm the allegation that the Hungarian state and its representatives – who have been under a positive obligation to guarantee the protection of Mr. Tobin’s life and limb in the penitentiary institution – may have had a grudge against the Irish convict. Finally, the issue raised in Point H.a can only be discussed in conjunction with Point A. Although the question about the execution of the legal sentence in Point B only has an indirect relevance from the viewpoint of the surrender, I shall also discuss it in conjunction with Point A. In a somewhat unorthodox manner, I shall present the dissents first, as these back up the results of their authors’ analyses with substantially simpler arguments, before moving on to summing up and evaluating the considerably more complex concurring opinions, which contain the system of arguments produced in support of the denial of Mr. Tobin’s surrender.

28.6

Dissenting Opinion of Chief Justice Denham

According to Chief Justice Denham the question presented under Point A.a can only be answered in the negative: the second round surrender proceeding does not constitute abuse of rights. In order to underpin his statement the Chief Justice invokes Irish36 and Luxembourg37 case-law (paragraphs 29-54). In Chief Justice Denham’s view back in the first proceedings before the High Court and those in 2012 were fundamentally different. In the first case the Court was required to determine whether Mr. Tobin ‘fled’ Hungary, whereas this question did not arise in the second round proceedings as a results of the amendment of the law (paragraph 51). The Chief Justice believes that the question in Point A.c also needs to be answered negatively: Section 27 of the Interpretation Act is not violated, since the legislature did not overwrite the final decision in the first round, according to which Mr. Tobin as a convict did not flee from Hungary. The legislature merely brought Irish law in conformity with EU rules (paragraphs 59-70). This is Ireland’s obligation flowing from EU membership and not least from the Pupino judgment38 (paragraph 71). Concerns raised under Point A.b in relation to separation of powers were not shared by the Chief Justice either, since the intention of the legislature was to harmonise Irish and EU laws and not to overrule a judicial decision39 (paragraphs 55-58). Chief Justice Denham 36 Supreme Court of Ireland, Bolger v. O’Toole & Ors, Ex tempore, 2 December 2002, Attorney General v. Gibson, Ex tempore, 10 June 2004. 37 See supra note 28. 38 European Court of Justice, Case C-105/03, Criminal proceedings against Maria Pupino, 16 June 2005. 39 See the cases quoted by the defence: Buckley v. Attorney General [1950] I.R. 67, Costello v. Director of Public Prosecutions [1984] I.R. 436.

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does not find it problematic that the Transfer of Execution of Sentences Act 2005 only allows for the Irish Minister to consent to the execution of a prison sentence in Ireland if the person fled the issuing state before he or she commenced serving that sentence, or completed serving that sentence40 (paragraph 84). The Framework Decision on the European arrest warrant in its Article 4 paragraph (6) only formulates denial of surrender as a possibility, not as an obligation, among the facultative grounds for refusal, in case if ‘the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law.’ Hungary decided to make use of this possibility, and therefore in a reverse situation a Hungarian convict residing in Hungary would not be transferred to Ireland. This fact however is irrelevant, since the European arrest warrant does not operate on a reciprocal basis. According to Chief Justice Denham there is no constitutional provision, nor is there an article enshrined in the European Convention on Human Rights which would create a right to have prison sentences served in one’s home country (paragraph 87).

28.7

Dissenting Opinion of Justice Murray

In his dissenting judgment Justice Murray basically agreed with Chief Justice Denham’s arguments. But he thought it necessary to add that despite the five separate opinions by five separate judges several issues have not been debated. The fact that Mr. Tobin had committed the crime was not questioned; neither was the criminal responsibility of the convict as established by Hungarian courts; the judges also agreed that the opinions had no bearing on the validity of the arrest warrant issued in Hungary, on the basis of which any country other than Ireland could surrender Mr. Tobin; furthermore, it was generally agreed that the second-round procedure could not in any way be regarded as res iudicata (paragraphs 7-8). Justice Murray also invoked the Pupino decision’s much quoted statement according to which the principle of loyal co-operation is also binding in the area of judicial co-operation in criminal matters41 (paragraph 51).42 The ruling in the Pupino case became such a 40 Transfer of Execution of Sentences Act 2005, Section 7 Para. (1): ‘[…] the Minister may, upon receipt of a request in writing from a sentencing country to consent to the execution in the State of a sentence imposed in the sentencing country, or part of a sentence so imposed, on a person who fled to the State before he or she— (a) commenced serving that sentence, or (b) completed serving that sentence, give such consent.’ 41 See footnote 38, Para. 42. 42 ‘It would be difficult for the Union to carry out its task effectively if the principle of loyal co-operation, requiring in particular that Member States take all appropriate measures, whether general or particular, to

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breakthrough precisely because by transplanting a first-pillar principle to the third pillar – we might add: contrary to the intentions of the legislature – it eventually made EU criminal laws enforceable. It is this very same case discussing the principle of interpretation in conformity with EU law. Framework decisions cannot serve as the basis for an interpretation of national law contra legem, nevertheless there is a duty on the courts to avoid, as far as possible, interpretations of domestic law that was contrary to the Framework Decision (paragraph 63). Justice Murray implied that the concurring justices violated this principle.

28.8

Concurring Opinion of Justice O’Donnell

‘I thought it was all over after the Supreme Court’ – quotes Justice O’Donnell Mr. Tobin at the time when he was arrested. Justice O’Donnell believes that his duty was to determine whether the reaction of the defendant in the course of his arrest at second instance was lawful or not. Justice O’Donnell also shares the opinion that no procedural res iudicata exists in the case,43 however he found important to clarify whether Mr. Tobin has the right to finality of the first instance judgement,44 in particular considering the principle of fair procedure (paragraphs 38-48).45 Pursuant to Justice O’Donnell, the surrender could be refused by referring to Section 27(1)(C) of the Interpretation Act according to which, the amendment to a law does not affect any right, benefit, entitlement obligation or responsibility arising in accordance with a previous provision of law. Nevertheless, Section 4 of the Interpretation Act needs to be mentioned because it refines that Section 27 is a pure presumption, which could be rebutted if on the basis of the amendment one can conclude the contrary intention of the legislator (paragraph 62). The question for Justice O’Donnell is whether the Oireachtas, the Irish Parliament intended to overwrite the judgment adopted at first instance. When answering the question, he assessed the text of the amending act, and came to the conclusion that the respective Irish law serves compliance purposes with the Framework Decision and it did not aim at the alteration of the Tobin decision passed in 2007 (paragraph 64). Justice O’Donnell underlined repeatedly that his judgement does not have precedential value: due to the special circumstances of the case it is so narrow that it would not be applicable to anyone else. Besides Mr. Tobin, most probably no other person would be involved in a similar situation. In each future case, surrender will be preceded in accordance with the amended act (paragraph 78). ensure fulfilment of their obligations under European Law, were not also binding in the area of police and judicial co-operation in criminal matters, which is moreover entirely based on co-operation between Member States and the institutions, […].’ See the Pupino judgment cited in footnote 38, Para. 42. 43 Supreme Court, Bolger v. O’Toole, 2 December 2002; MJELR v. O’Fallúin, 19 May 2010. 44 Re Greedale Developments (no. 3) [2010] 2 I.R.514; Re Vantive Holdings [2010] 1 I.R.118. 45 For the proposal defence, the court assessed the case-law: Hamburg Public Prosecutors Office v. Altun [2011] EWHC 397; Office of the Prosecutor General of Turin kontra Barone [2010] EWHC 3004.

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28.9

Concurring Opinion of Justice Hardiman

It is very rare to experience such a partial court decision in a democratic state as that of Justice Hardiman. In his concurring opinion, he profoundly supports his conclusion from two different approaches. On the one hand, he placed particular emphasis on the unblemished character of Mr. Tobin portraying him as a fundamentally law abiding person, an average middle-class man towards whom it is easy to show empathy. On the other hand, the judgment portrays Mr Tobin as the victim of a crusade. Accordingly the concurring opinion specifies and refers at numerous points to the social recognition and excellent character of Mr. Tobin46 and to the hostile attitude adopted towards him by the authorities.47 The judgment also plays on the emotions using strong words (such as ‘ordeal’, ‘anxiety’, ‘insecurity’, ‘distress’, ‘grief’, or ‘fear’), when discussing the effect of the legal process on

46 ‘The appellant, Mr. Tobin, is an Irish citizen of unblemished character who not merely has no previous convictions, but has had a distinguished career in an Irish public company’; ‘The appellant, Ciaran Tobin, is an official of an Irish Public Company in which he has worked since he left school. While working full time with that Company he qualified first as a Certified Chartered Accountant (FCCA) and subsequently proceeded to the degree of Master of Business Administration (MBA). These are coveted qualifications, not achieved without serious and sustained endeavour and ambition by a person working full time. He has achieved a position of considerable seniority in his official career. He is married with two children and lives in Dublin. He is acknowledged to be a person of excellent character’; ‘[…] the State decided to oppose his release on bail, despite the fact that he was plainly a person of good character’; ‘He was arrested there and held in custody until released on bail over the State’s objections. The effect of this on a perfectly respectable person, and on his family, can perhaps be imagined’ (emphases added). 47 ‘The State then proceeded with the case even though it must have been clear that the factual basis for the allegation that Mr. Tobin had fled was gravely unsound’; ‘None of the enormous lapse of time chronicled above can be laid at the door of the appellant. He was the defendant or respondent at all stages of all of the litigation, whose pace and repetition was dictated at all times by his opponents’; ‘By far the single longest period of delay – forty-four months or just short of four years in aggregate – was caused by the misconceived attempt forcibly to deliver Mr. Tobin on the specious ground that he had fled from Hungary. There was never any evidential support for that proposition. If the State did not know that, such ignorance must be due to negligence of a dramatic sort. If they did know it then they maintained proceedings which they knew to be based on a falsity’; ‘The Central Authority persisted with hopeless proceedings and caused great expense to the public and distress to Mr. Tobin’ (emphases added).

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Mr. Tobin’s family including his small children.48 Conspicuous by its absence is any reference to the Zoltai family, their losses, their pains or their social status.49 In drawing attention to Mr. Tobin’s excellent character and his willingness to admit his criminal responsibility and accept punishment, Justice Hardiman pointed out that Mr. Tobin had voluntarily presented himself at a penitentiary institute in Ireland. The presentation of the facts is especially misleading, because Mr. Tobin only did this in the second round of the procedure, six months after the first-instance court in the second round ruled that he must be handed over to Hungary: in other words he moved in the penitentiary institute eleven years after the commission of the crime and 9 years after the final decision of the Hungarian Court when it seemed inevitable that he served the sentence. I would under no circumstance describe this act of his as voluntary, since he did this either because he saw no chance of getting out of the punishment and thought it would be best if the months he had spent in detention in Dublin would be included in the three-year sentence, or because he believed that this strategy would pay off in the trial. I am not saying this out of malice or out of spite – one should simply realize that Mr. Tobin did everything, and also the opposite of everything, in order to avoid punishment.50 It is also significantly conspicuous what is not included in the concurring opinion. For instance Justice Hardiman refers to the killing as an ‘accident’ instead of using the term

48 ‘The total period of time elapsed, as chronicled above, is 145 months, or just over twelve years. […] It represented all but nine months of the life of his son, and the whole of the life of his daughter. It represents a quarter of the appellant’s entire life and approaching one half of his adult life. His children have spent the entire of their sentient lives under a severe threat that their father, who is greatly involved in their lives, education and recreational activities, would be led away and forcibly deported to what is to them a strange country’; ‘It is difficult to believe that this is not a gravely disturbing experience, that it has not blighted their childhoods, and that it will not sour their recollections of childhood in the future. I hope it may have no worse consequence. But it is totally inconsistent with that sense of security which is an essential for the healthy development of children and which all parents endeavour to provide for their offspring. The authorities in this case have felt obliged to destroy the security of these childrens’ [i.e. Mr. Tobin’s children’s] childhood’; ‘The State does not deny the distress, grief, fear and insecurity caused to Mr. Tobin and his family but says it is legally irrelevant’; ‘It requires no imagination at all to imagine the insecurity which this caused to children of ten and nine years respectively at the time, and the unhappiness caused to the adult members of the family on that account. They were indeed, in my judgement, “compelled to live in a continuing state of anxiety and insecurity”.’ 49 This becomes strikingly obviously in view of the diametrically opposite behaviors shown by Francis Ciarán Tobin and Bence Zoltai, respectively. Mr. Tobin did everything he could in order to avoid punishment, thus earning the wrath of both the Hungarian and the Irish people and pushing himself into an increasingly precarious position, to the point that now he has to spend more time in an Irish prison than he would have had to do if he had been willing to serve his time in a Hungarian prison; on the other side, the central media figure representing the family was the father, who displayed admirable perseverance in his fight for justice, presenting a reasonable, balanced and justifiable demand that the sentence be executed, in any country, and Tobin express remorse. The story begs for an artistic adaptation, and we shall be able to see the parallel fates of the families in a movie production soon. See the planned movie project Ginko, MTI, February 22, 2014. 50 See the abuse of the possibility of in absentia criminal trials under Continental law as described in Chapter VII.2 on ‘31.16 De lege ferenda – Harmonisation of Minimum Standards Reinforcing Mutual Trust’.

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of ‘crime’, or the denotes to the 71-80 km per hour speed without mentioning that the allowed speed limit in the concerned area was only 50 km per hour. If we assume for the sake of an argument that Justice Hardiman was correct in the view that Mr. Tobin was ready to face his act, we may still ask why Mr. Tobin did not come immediately to Hungary and did not show up at the police station. Justice Hardiman’s response to this question appears to lie in perceived discrepancies in the Hungarian legal system, a strong criticism of the Hungarian judgment, and Mr. Tobin’s highly vulnerable situation in a Hungarian prison. At this point, he extremely criticizes the Hungarian judgement by reconsidering the facts, evidences and their assessment in details. He also argued that there could not, in any event, be mutual trust on his behalf with respect to the Hungarian legal system, since he did not even know it. Then Justice Hardiman proceeds to the evaluation of the European arrest warrant, which is the duty of the Irish court in a surrender case. In this respect he notes that Hungary did not succeed to refer to the facts of the case in the same way and could not clarify what sanctions exactly were imposed on Mr. Tobin. When looking into the permissibility of surrender Justice Hardimann raised questions in relation to Point A.a. on the abuse of proceedings and the realisation of due process. First he distinguished the case from the Bolger decision,51 where the court held that as a general rule requests for extradition or surrender may be issued repeatedly, since decision on such requests does not constitute res iudicata. In order to do that Justice Hardiman invoked the Henderson52 case, according to which the rationale behind abuse of process is that ‘there should be finality in litigation and that a party should not be twice vexed in the same matter.’53 Still, the court rarely determines abuse, only in cases where the judge can identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceedings involve what the Court regards as unjust harassment of a party.54 Declaring harassment mainly depends on the time passed between the two repeated proceedings. According to Mr. Justice Hardiman, the length of the proceedings was significant and by referring to the European Convention on Human Rights pursuant to which

51 52 53 54

See footnote 36. Henderson v. Henderson (2002) 118 LQR 397. Lord Bingham discussing Henderson v. Henderson in Johnson v. Gore Wood and Company [2002] 2 AC 1. Ibid.

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everyone shall be entitled for a trial within reasonable time,55 we may say that Justice Hardiman indirectly encouraged Ciarán Tobin to file a Strasbourg application. Justice Hardimann also draws the attention to the equality of arms and explains that there was an inequality between the means available for the state and the defence. In his view, breaching the principle of equality of arms could be supported by the reasoning that following the final judgement in the first round, the legislator was entitled to amend the law in a way that it is also applied to Mr. Tobin and thereby a possibility to carry out proceedings at second instance was provided. While, in case Mr. Tobin would have lost proceedings in the first round, he could not have amended the law in the way to enable reopening of proceedings for his benefit.

28.10 Concurring Opinion of Justice Fennelly Justice Fennelly – together with Justice Hardiman – argued that the second round proceeding constituted abuse of process. According to Justice Fennelly in the Tobin case it was a legislative mistake and its correction that triggered two surrender proceedings (paragraph 10). Mr. Tobin won the case in the first round on the basis of a national law implementing the framework decision. It was never suggested that the law was erroneous; therefore once he successfully relied on its provisions, Mr. Tobin had no reason to expect that the law would be changed (paragraph 13). Neither the original mistaken implementation, nor its subsequent correction can be attributed to Mr. Tobin, therefore Justice Fennelly’s view the repeated proceedings amounted to an abuse of process. While distancing himself from Justice Hardiman’s interpretation of the equality of arms principle. Justice Fennelly otherwise expressed agreement with Mr Justice Hardiman’s reasoning.

28.11 Evaluation of the Second Round Proceedings The first argument elaborated by Justice O’Donnell – and also shared by Justice Hardiman – was that the right not to be surrendered is an acquired right. According to the Interpretation Act if an enactment is repealed, the repeal does not effect such rights, unless the contrary intention of the legislator could not be identified. Such legislative intent behind the modification of the Irish law on surrender could not be traced. Therefore surrender shall be denied according to O’Donnell due to the lack of the expression of an explicit legislative wish to deprive Mr. Tobin of his rights. This argumentation is a catch 22: had the legislator inserted a language into the 2009 amendment depriving Mr. Tobin from his rights expressis verbis, this clearly would have breached the principles of judicial independence 55 See Art. 6(1) of the European Convention on Human Rights.

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and separation of powers. Consequently, the judges would most probably have been against the surrender whatever the legislative solution was, only the basis for denying surrender would have been different. Attempting to make use of the modified act after Mr. Tobin’s unsuccessful surrender in the first round is therefore either a violation of the Interpretation Act or a breach of separation of powers and judicial independence. Reference to the low quality of the Hungarian legal system as the second argument for declining surrender is also problematic. I personally disagree with Justice Hardiman’s first criticism concerning the Hungarian legal system, however my opinion is irrelevant from the perspective of the case. Interestingly Justice Hardiman’s extremely critical opinion about the Hungarian criminal procedure is equally irrelevant according to the rules of EU criminal justice, i.e. analysis of the issuing Member State’s legal system by the requested Member State’s judiciary shall not matter. The Irish court cannot question mutual trust existing between Member States and there was no basis for essentially reopening and carrying out a further assessment on the substance of the criminal proceedings, as its competence should be strictly limited to the decision on surrender.56 The third argument is another piece of evidence proving that Justice Hardiman clearly does not understand the principle of mutual recognition: he states that if he had not refused the surrender on other grounds he would have assessed in details the raised questions, as from his side, who is not familiar with Hungarian law, the trust towards the Hungarian legal system cannot be reasonably expected. From the perspective of EU law the fourth argument also authored by Justice Hardiman against surrender is also irrelevant: in his view, in a similar situation Hungary would not have extradited its own citizen but rather would have offered to execute the punishment. On the one hand, Ireland could equally have done this, if it had chosen to implement the relevant framework decision of 2008, and on the other hand – and this is the more important point of my critical remarks – the European arrest warrant does not operate on the basis of reciprocity. As to Justice Hardiman’s next point, altogether the fifth argument against surrender on Mr. Tobin’s safety in a Hungarian prison, it is quite possible that the circumstances have by now deteriorated to the point where he would be exposed to danger. However, this is partly due to certain omissions on his part: had he reported for prison in 2002, within a few months after the second-instance decision had been issued, no lynch mob mentality would have developed. More importantly, the Hungarian state is under obligation to protect Mr. Tobin from any form of atrocity while the latter is serving time in a Hungarian penal institution, and the Hungarian state has displayed no partiality or discrimination

56 This was recognised by other judges who criticised the opinion of their colleague. See the dissenting opinions and the concurring opinion of Justice Fennelly.

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of any form in the case, therefore it was reasonable to assume that he would have received adequate protection. While the sixth argument is valid, the Hungarian authorities were indeed ‘clumsy’ when formulating the arrest warrants, I am not convinced that for this reason Mr. Tobin was not aware of the punishment received, as he had prominent defence attorneys who must have prepared a profound word by word translation of the final judgement with an attached comprehensive explanation. Seventh, arguing for abuse of rights on grounds of length of proceedings by an Irish judge is quite ironic given that the delay in processing Mr Tobin’s case was mainly attributable to the Irish courts system,57 which needed seven to eigth years to come to a final decision on surrender, despite the fact that the Framework Decision on the European arrest warrant prescribes strict deadlines, that is sicty days maximum and in extraordinary situations it could be ninety days in total.58 In other words Justice Hardiman invoked the Irish courts’ disregard for deadlines in violation of the Framework Decision on the European arrest warrant as a basis for the refusal of the request for surrender, i.e. a further violation of the very same Framework Decision. Whereas the state’s mistake can obviously not be attributed to the person sought in a surrender proceeding, this reasoning ultimately uses a breach of EU law (with regard to the length of proceeding) to justify another breach of the same EU law (not surrendering the convict in a situation where all requirements for surrender under the Framework Decision are met and upholding a sentence based on the erroneously implemented European law).59 As to the eighth argument, it is doubtful whether the equality of arms doctrine could be extended thus far, but the argument is also problematic, since it has been proven that the Irish Parliament did not intend to overwrite the first round judgment, rather it wanted to bring Irish law into conformity with EU law. This was the basis for refusal of surrender on statutory interpretation grounds as discussed above. Therefore the first and the eighth arguments against surrender – to both of which Justice Hardiman subscribes – are mutually exclusive. The final argument as discussed by Justice Fennelly on abuse of process is very hard to distinguish from the concept of res iudicata, although there was a unanimous agreement among the judges that this concept does not govern procedural matters.

57 The judgements issued in 2007 and 2012 were both adopted within two and a half years. 58 Art. 17 of the Framework Decision. 59 The scenario is well-known from criminal procedure, when the state’s fault results in the inapplicability or invalidity of a state measure. See for example the fruit of the poisonous tree doctrine, according to which illegally acquired evidence must not be used in a criminal proceeding. (The term originates from the US Supreme Court, Silverthorne Lumber Co. v. United States, 251 U.S. 385 (19200)).

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28.12 Extralegal Factors The judgement adopted in 2012 ended judicial proceedings with respect to Mr. Tobin and it would be impossible and unreasonable to recommence the case on the same grounds. Therefore, surrender was discussed in terms of diplomatic solutions. In this respect, by an official letter, Tibor Navracsics, the Hungarian Deputy Prime Minister, turned to Viviane Reding, Justice Commissioner of the EU, to request clarifications regarding opportunities available after the adoption of the Irish second instance judgement in the second round refusing the surrender of Francis Tobin Ciarán.60 In response Vivane Reding sent a letter on 27 June 2012, urging a tripartite meeting with the Irish justice minister, partly to resolve the Tobin case and partly to explore the reasons causing the undoubtedly deficient operation of the European arrest warrant.61 On 11 July 2012, few days prior to the tripartite meeting,62 Tibor Navracsics sent another letter to Viviane Reding and urgently requested the Commissioner to achieve ‘Irish cooperation and constructivism with respect to regulatory matters and actual cases.’63 On 21 September 2012 the Deputy Prime Minister reminded Ms Reding another time to the importance to resolve the situation64 in respect of which he received the answer that pursuant to the conclusions of the meeting held in Brussels in July the parties ‘did not disclose any systemic problem with the operation of the European arrest warrant’,65 however she believed that ‘officials of both Member States should continue to conduct informal consultations on the case and examine the feasibility of the enforcement in Ireland of the sentence imposed against Mr. Tobin in Hungary.’66 60 MTI, Navracsics a Tobin-ügyről: ‘én most optimista vagyok’, 28 June 2012, http://hvg.hu/vilag/20120628_ tobin_navracsics; András Kósa, Navracsics: elszigeteli Írországot Ciarán Tobin ügye, 2012. június 29, http://hvg.hu/itthon/20120629_navracsics_tobin_reding. 61 MTI, Brüsszel fog közvetíteni az ír gázoló ügyében, 28 June 2012, http://hvg.hu/itthon/20120628_eb_ir_gazolo. 62 ‘Viviane Reding, the Commissioner responsible for justice, convened the legal experts of the Hungarian and Irish ministry of justice to discuss the case of the Irish reckless driver on 17 July.’ MTI, Nincs vége a leányfalui gázoló ügyének, 13 July 2012, http://hvg.hu/vilag/20120713_tobin_ugy_brusszel. 63 MTI, Tobin-ügy: Navracsics újabb levelet írt Brüsszelnek, 11 July 2012, http://hvg.hu/itthon/20120711_na vracsics_tobin. 64 Gábor Károly: Tobin-ügy: Navracsics újabb levelet írt, 22 September 2012, Magyar Nemzet, http://mno.hu/ magyar_nemzet_k_ulf/tobin-ugy-navracsics-ujabb-levelet-irt-1106879. 65 MTI, Navracsics hiába ír leveleket az ír gázoló ügyében, 24 September 2012, http://hvg.hu/vilag/20120924_ Navracsics_hiaba_ir_leveleket_az_ir_gazol. This statement is obviously true merely with respect to the provision enforcing national implementation in relation to a possible fleeing from the country following the adoption of the final judgement. As to the deep problems unrelated to the case, but related to the European arrest warrant see for example Gert Vermeulen et al. (Eds.), Rethinking International Cooperation in Criminal Matters in the EU. Moving beyond Actors, Bringing Logic Back, Footed in Reality, Antwerpen, Apeldoorn, Portland, Maklu, 2012; Council of the European Union, Replies to questionnaire on quantitative information on the practical operation of the European arrest warrant – Year 2011, 9200/6/12, REV 6, COPEN 97, EJN 32, EUROJUST 39, 2012 szeptember 28; JUSTICE, European Arrest Warrants: Ensuring an effective defence, London: Justice, 2012. 66 MTI, Ír gázoló: Viviane Reding kiáll a büntetés letöltése mellett, 25 September 2012, http://hvg.hu/vilag/

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At this point, an extremely derogatory discussion and pointless debate has begun. In his letter sent on 28 September, Mr. Navracsis disputed Ms Reding’s conclusions and argued that it is a systemic problem ‘if an EU citizen hits to death two innocent children and the country where the action has occurred does not have the possibility to punish the offence.’67 Tibor Navracsics also noted that he expects from the EU a solution, not mediation.68 On 3 October, Viviane Reding disappointedly acknowledged that the arguments of Tibor Navracsics are ‘directed to the inadequate person’ and requested the Deputy Prime Minister to ‘adhere to the facts and law.’69 Kinga Gál, Member of the European Parliament, submitted a written question to the European Commission on 16 January 2013 and asked what instruments the Commission had at its disposal to help this case to reach a conclusion that satisfies not just the letter of the law, but also the interests of justice, thus ensuring the proper functioning of the area of freedom, security and justice.70 The diplomatic scandal escalated rapidly. It was the time, when the Hungarian Parliament prepared the fourth amendment to the Fundamental Law71 and Hungary was placed into an international spotlight72 when in an unfortunately composed sentence Viviane Reding visualised a causal relationship in respect of isolated issues. She invoked the tragic case in a completely unrelated political debate when on 9 March 2013 she gave an interview

20120925_Ir_gazolo_Viviane_Reding_kiall_a_buntetes. 67 MTI, Hazugsággal vádolja Viviane Redinget a KIM, 19 March 2013, http://hvg.hu/vilag/20130319_Hazug saggal_vadolja_Viviane_Redinget_a_KI. 68 Ibid. 69 Ibid. 70 ‘Deficiency in the operation of the Area of Freedom, Security and Justice’, Question for written answer from the Commission, E-000388-13, 16 January 2013. 71 The Fourth Amendment to the Fundamental Law of Hungary, 25 March 2013 being effective from 1 April 2013. 72 See for instance the Statement from the President of the European Commission and the Secretary General of the Council of Europe on the vote by the Hungarian Parliament of the Fourth Amendment to the Hungarian Fundamental Law European Commission, MEMO/13/201, 11 March 2013; Venice Commission, European Commission for Democracy Through Law, Opinion on the fourth amendment to the FL of Hungary, Adopted by the Venice Commission at its 95th Plenary Session, Venice, 14-15 June 2013; and Tavares Report, European Parliament resolution of 3 July 2013 on the situation of fundamental rights: standards and practices in Hungary (pursuant to the European Parliament resolution of 16 February 2012) www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2013-0315+0+DOC+XML+V0 //HU. The idea to conduct proceedings pursuant to Art. 7 was raised, see Commission Vice-President Neelie Kroes threatening to use Art. 7 www.europarl.europa.eu/news/en/news-room/content/20120206IPR37350/ html/Hungary-MEPs-hear-from-civil-society-media-and-the-government; Greens/ALDE proposals to launch Art. 7 proceedings, most recently in July 2013, www.alde.eu/press/press-and-release-news/pressrelease/article/hungary-if-the-ep-is-serious-about-fundamental-rights-it-must-apply-article-71-teu-41836/. International human rights law organisations also strongly criticised the Fourth Amendment: Amnesty International – European Institutions Office, Amnesty International’s Concerns about the fourth amendment to Hungary’s Fundamental Law, March 2013, www.amnesty.eu/content/assets/Doc2013/AI_concerns_about_the_Fourth_Amendment_to_Hungarys__Fundamental_Law_March_2013.pdf; Human Rights Watch, Wrong Direction on Rights, Assessing the Impact of Hungary’s New Constitution and Laws, 9781-62313-0107, May 2013, www.hrw.org/sites/default/files/reports/hungary0513_ForUpload.pdf.

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to the Frankfurter Allgemeine Zeitung saying that she was not surprised that the Irish authorities did not extradite their citizen to a country in respect of which serious worries have arisen regarding the independence of justice.73 Tibor Navracsics responded to Viviane Reding in an open letter on 15 March considering the Commissioner’s statements outrageous and unacceptable.74 The Government found intolerable in its report number J/10517 that the Commissioner ‘drew a parallel between the execution of a judgement adopted in a particular case and the independence of justice.’75 With his typical explicitness and firmness, the father of the direct victims, Bence Zoltai requested the Commissioner on 19 March to pay more respect to the piety feelings of the individuals affected in the matter.76 Tibor Navracsics also resented that Reding did not reply to his official letters relating to the case.77 The spokesperson of Ms Reding confuted this statement78; nevertheless the Ministry of Public Administration and Justice confirmed it.79 In her response to Kinga Gál sent on 25 March, Viviane Reding acknowledged that ‘no further action could be taken.’80 In its response letter sent on 25 March 2013, the Council emphasised that it was not for

73 ‘In the past year, representatives of the Hungarian justice system submitted several complaints to me blaming the Supreme Court of Ireland for not willing to transfer an Irish citizen, who is accused with negligent homicide, in Hungary. I am personally not surprised about the Irish attitude, since parallel to this, Hungary adopted several instruments which raise concerns in relation to the impartiality of the justice system.’ Im Gespräch: Viviane Reding, EU-Kommissarin für Justiz ‘Künftige EU-Erweiterungen gut abwägen’, Frankfurter Allgemeine Zeitung, 9 March 2013, Nr. 58, p. 5. 74 Tibor Navracsics properly summarises in his letter the problems of Viviane Reding’s statement in which the Commissioner mixes unrelated issues. ‘It does not seem accurate if the Commissioner responsible for fundamental rights mixes a claim to enforce a court judgement adopted in 2002 with respect to a case where the perpetrator caused the death of two children by reckless driving with current political disputes concerning the independence of the Hungarian judiciary. Moreover, she dares to say that in fact it is understandable that the Irish authorities are not willing to transfer the perpetrator to Hungary in order to avoid serving his punishment.’ Quoted by András Kovács, Halálos gázolás: Navracsics keményen nekiment Redingnek, 17 March 2013, http://mno.hu/belfold/halalos-gazolas-navracsics-kemenyen-nekiment-redingnek-1145408. 75 Government Report Nr. J/10517; Questions on the actions to be taken in relation to the Tobin case by Viviane Reding, the Commissioner of the European Commission responsible for justice, fundamental rights and citizenship, March 2013. The Hungarian Parliament also confirmed that the Hungarian State ‘considers unacceptable that Viviane Reding as the Commissioner responsible for justice, fundamental rights and citizenship finds verifiable the proceedings conducted by the country of citizenship of the condemned, which is a Member State of the EU, pursuant to political assumptions without suspending it by facts.’ Parliamentary Decree Nr. 34/2013 of 9 May 2013 on the approval of the report relating to the questions on the actions to be taken in relation to the Tobin case by Viviane Reding, the Commissioner of the European Commission responsible for justice, fundamental rights and citizenship. The Decree was approved by the Parliament on 29 April 2013. 76 Reference to Government Report No. J/10517, ibid. 77 Ibid., Government Report No. J/10517 explores it in details: ‘The Minister of Public Administration and Justice urged the realisation of a high level meeting several times. The minister expressed his intention in his letters sent to Reding on 28 June 2012, 9 July, 21 September, 28 September, 4 October, 13 November, 26 November, nevertheless Commissioner Reding left these initiatives unanswered.’ 78 The Ministry of Public Administration and Justice accuses Viviane Reding with lie, ibid. 79 Ibid. See also the Government Report No. J/10517. 80 Response of Viviane on behalf of the European Commission, E-000388/2013, 25 March 2013.

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them to comment on decisions taken by national courts and by respecting the principle of separation of powers they did not intend to form an opinion on the operation of Irish courts.81

28.13 The Solution to the Case In the course of March 2013, István Tóth, the attorney of the family Zoltai has played his trump card. Mr. Tobin authorised a Hungarian defence attorney in 2006 and pursuant to the documents the authorisation was signed by Mr. Tobin in Budapest. However, at that period Mr. Tobin was in Dublin for a long time, therefore the suspicion arose that he falsely indicated Budapest as the location of the document’s signature, but signed it in Ireland. Should he have done so, this amounted to private document forgery which is a crime according to the Hungarian Criminal Code and therefore Hungary could have requested his surrender on this basis. In the very unlikely situation, if he had truly travelled back to the Hungarian capital, Budapest, to sign the authorisation, he would have fulfilled the conditions of the Irish law transposing the Framework Decision by returning to Ireland, because then he ‘fled’ from Hungary as a condemned person. The presented strategy of the attorney is reasonable and understandable; however it is less likely that this was the major reason why Mr. Tobin subjected himself to the punishment. It is possible that legal proceedings with respect to private document forgery could have been initiated and on this ground Hungary could have requested the surrender of Mr. Tobin from Ireland for the sake of conducting a criminal process, nevertheless considering the principle of speciality, the punishment imposed on him in a different proceeding, i.e. the prison sentence for the lethal road traffic accident could not have been executed.82 Furthermore, if Mr. Tobin really had signed the authorisation in Hungary and consequently ‘fled’ from the country back in 2006, it is hardly possible that the case could be recommenced without taking into consideration that the relaunching could be qualified as abuse of process or harassment by the authorities according to common law, and therefore surrender would be again denied. There must have been some other reasons why Mr. Tobin undertook the responsibility and subjected himself to the punishment. In the following I am going to assess these possible reasons.

81 Parliamentary questions, 15 May 2013, E-000387/2013, Response of the Council. In accordance with the proposal of the Hungarian State (see Government Report No. J/10517), the Council referred to the Council framework decision regarding mutual recognition and enforcement of judgements, however in merits, the reference does not affect the circumstance that the Council does not intend take side in relation to the judgements of Irish courts. 82 Section 1 of Art. 31 Act CXXX of 2003 on the implementation of the Framework Decision; Section 1 of Art. 30 of Act CLXXX of 2012, which was promulgated on 30 November 2012, takes over the previous regulation regarding the rule of speciality.

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‘Aut dedere aut punire’ as Hugo Grotius says in his masterpiece published in 1625 with the title of De iure belli ac pacis,83 which is the fundament of the law regarding surrender and extradition. In proper translation it simply means: ‘surrender or punish’.84 My standpoint is that exactly this would have been the duty of Ireland. The first option was barred by the judicial decisions, and the second was seemingly also excluded by the laws in force. According to the Irish Transfer of Execution of Sentences Act adopted in 2005, Ireland as an executing state only permits the acknowledgment of criminal judgements adopted in other states, if the condemned person fled from the requesting state before he commenced to serve his punishment, or while serving his punishment.85 (The wording should be familiar, as it corresponds to the Irish act implementing the Framework Decision on the European arrest warrant.86) There is however a fundamental flaw with the mentioned 2005 Act. It should not have been discussed in the first place, since it refers back to a Council of Europe convention on the transfer of sentenced persons of 1983 and the Additional Protocol thereto of 1997, while these were superseded by a 2008 EU framework decision on the enforcement of judgements in criminal matters imposing custodial sentences. The framework decision should have been implemented by all Member States including Ireland at the time of adopting the Tobin judgement.87 However the Irish legislator had failed to implement this legal instrument by the deadline, i.e. 5 December 2011, and to make matters worse the legislatoure also attached an erroneous declaration to it. The framework decision provided an opportunity for Member States to request prior to the implementation deadline, that is 5 December 2011,88 to apply the existing legal instruments with respect to the transfer of sentenced persons. Accordingly, Ireland made a declaration on 29 March 2012 stating that for the execution of final judgments passed prior to 5 December 2011 – including the second instance judgement in the Tobin case – it will apply legal instruments 83 Hugo Grotius, De jure belli ac pacis libri tres: in quibus jus naturae & gentium item juris publici praecipua explicantur, Washington, DC, Carnegie Institution of Washington, 1913. 84 Nyitrai explains that using the often referred term of ‘extradite’ is inaccurate regarding the translation as Latin language in the middle ages did not know the verb of ‘extradere’. Péter M. Nyitrai, Nemzetközi bűnügyi jogsegély Európában, Budapest: KJK-Kerszöv, 2002, p. 29. 85 Transfer of Execution of Sentences Act 2005, Art. 7 (1). 86 The wording corresponds to the Irish act implementing the Framework Decision on the European arrest warrant. With respect to the cited Irish execution act, Mr. Tobin urged the deletion of the word of ‘fled’ by arguing that in order to ensure consistency in the legal system, the law should have been harmonised at the time when the implementation act regarding the Framework Decision, which was adopted in 2002, was amended as a consequence of his case. In other words the language that saved Mr. Tobin in the first round to have him surrendered, was disadvantageous to him when the execution of his prison sentence was concerned, and therefore he proposed to delete it. See Supreme Court of Ireland, Minister for Justice Equality and Law Reform v. Tobin [2012] IESC 37, 19 June 2012, Para. 28 of concurring opinion of Justice O’Donnell. 87 Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union. 88 Art. 29(1) Member States shall take the necessary measures to comply with the provisions of this framework decision by 5 December 2011.

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adopted prior to the entry into force of the framework decision, i.e. the 2005 act on the basis of which execution of the Hungarian sentence was impossible. In the course of 2013, the Hungarian Ministry of Public Administration and Justice considered that the declaration was invalid as it could only have been formulated in 2008 at the time of the ‘adoption of the framework decision’, and not later, especially not after the implementation deadline had passed.89 Viviane Reding confirmed the Hungarian standpoint in her letter of September 2013: the declaration was indeed invalid, therefore the temporary exemption never entered into force.90 Currently the Commission has no legal means to make Ireland responsible for noncompliance with the above EU norm, but in December 2014, at the fifth anniversary of the Lisbon Treaty’s entry into force, opportunity will be provided to launch infringement proceedings regarding the faulty implementation of framework decisions. From the perspective of Mr. Tobin this is the most dangerous legal option, which may have been a reason why Mr. Tobin decided to serve his punishment. Once Ireland was required to regard the declaration as void and therefore enforce prison sentences imposed in another Member State in accordance with the 2008 framework decision, Mr. Tobin would in any event have had to serve his prison sentence anyway. Once he realised imprisonment was unavoidable, he decided to serve it sooner than later. Alternatively, it may have been his conscience that led him to serve out his punishment. Since for the time being there were no means to enforce the prison sentence, he could design the choreography of events to some extent. After lengthy negotiations he travelled to Hungary, spent five days in a Budapest prison in the course of January 2014, then he requested his transfer to Ireland. The Hungarian and Irish justice ministers, in addition to the Irish supreme court approved the request,91 thus with the assistance of the Interpol’s associates Mr. Tobin was transferred to Ireland on 17 January 2014 in order to serve the remaining part of his custodial sentence.92 We may reasonably ask the exact duration of his remaining sentence and whether Mr. Tobin could be released after serving half of his punishment. The Buda Surroundings District Court sentenced Mr. Tobin for three years imprisonment and the Pest County Court upheld the decision provided that he is exempted from the general rules and can be released on probation sooner than after having served two-thirds of his prison sentence.

89 Art. 28(2) of 2008/909/JHA framework decision. 90 MTI, Tobin-ügy: Magyarország eljárást indíthat Írország ellen, 26 September 2013, http://hvg.hu/itthon /20130926_Navracsics_Reding_szerint_is_igazunk_van. 91 Az ír hatóságok engedélyezték, hogy Tobin a hazájában töltse le büntetését, 17 January 2014, www.kormany.hu/hu/kozigazgatasi-es-igazsagugyi-miniszterium/hirek/az-ir-hatosagok-engedelyeztek-hogy-tobina-hazajaban-toltse-le-bunteteset; Brigitta Lakatos, Papp Gergő: Végre börtönbe került az ír gázoló!, 14 January 2014, www.hir24.hu/bulvar/2014/01/14/papp-gergo-vegre-bortonbe-kerult-az-ir-gazolo/. 92 Jövő szeptemberig börtönben marad az ír gázoló, 14 January 2014, www.kormany.hu/hu/kozigazgatasi-esigazsagugyi-miniszterium/hirek/jovo-szeptemberig-bortonben-marad-az-ir-gazolo.

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According to the court of second instance Mr. Tobin could be released for probation after serving half of his punishment, because ‘executing the imposed sentence involves an increased burden for a foreign citizen who lacks the knowledge of Hungarian language.’93 However, in case Mr. Tobin serves the remaining part of his sentence in his motherland, not far away from his home, nothing justifies the exemption. In a letter dated 21 May 2010, Ireland’s Ministry of Justice, in its capacity as the central authority, wanted to know why the change according to the second instance ruling of the Hungarian Court had not been mentioned in the European arrest warrant, and also asked for clarification if the second-instance decision had in any way been different from the first instance ruling. In a letter dated 14 June 2010, the Ministry of Administration and Justice confirmed that ‘the remaining prison sentence is 3 years,’94 making no mention in the reply of the earliest time of conditional release. This effectively meant that the Hungarian party left it to the Irish law enforcement agency to determine after what time the convict would, if at all, become eligible for conditional release. Framework Decision 2008/909/IB regulates the recognition of criminal sentences and their execution in another Member State, although, as I have already pointed it out, the Irish authorities had failed to ratify it before the set deadline of 5 December 2011.95 Still it is worth discussing the possible results of an EU conform interpretation. The framework decision states that an application for the recognition of a sentence can be submitted, among other cases, when the convict lives in the state executing the sentence, either as a citizen or as a resident. The execution of the sentence can only be denied if any of the conditions listed in Article 9 exists, but none of them applies to the Tobin case.96 According to Article 8 paragraph (2) if the sentence is incompatible with the law of the executing State in terms of its duration, the competent authority of the executing State may decide to adapt 93 See footnote 9. 94 Quoted by the Supreme Court, Minister for Justice Equality and Law Reform v. Tobin [2012] IESC 37, 19 July 2012 in the concurring opinion of Justice Hardiman. 95 Having failed to meet the deadline of 5 December 2011 by a wide margin, the Irish authorities are yet to implement the framework decision at the time of writing the present paper. Ireland is not the only country, by the way: half of the EU Member States have failed to ratify this particular EU law. See the website of EuroPris (European Organisation of Prison and Correctional Services): www.europris.org/state-of-play-euframework-decisions-909-947/. 96 Such examples are, for example, when the certificate is evidently faulty; when it does not correspond with the sentence; when the execution would violate the principle of ne bis in idem; when the condition of double incrimination regarding non-privileged category of criminal acts is not met; when the statute of limitations for that particular criminal case has expired according to the legal system of the country of execution; when there is an exemption for the convict or when age considerations come into play; when less than six months of imprisonment is left; when the sentence had been passed in absentia, except for the case when other guarantees have been met by the applicant state; when the nature of the sentence includes a measure of psychiatric or health care and the health care system of the executing state is not adequate for the task; or when the sentence concerns a criminal act that had been carried out, at least partially, within the territory of the executing state.

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the sentence only where that sentence exceeds the maximum penalty provided for similar offences under its national law. In the Tobin case however this exemption from the general rule does not need to be invoked, since Section 53 of the applicable Road Traffic Act of 1961 imposes up to five years imprisonment to dangerous driving causing death.97 The next question is whether the seven months spent in Irish detention can count towards the total prison sentence. In this particular case, answering the question is made easier by the fact that Ireland had failed to implement Framework Decision 2008/909/IB. If it had done so, and if Ireland had to recognize the Hungarian sentence, it is unclear whether the ‘recognition’ of the court decision would also have included the recognition of the possibility of conditional release after 18 months. Further difficulties derive from the fact that, according to Hungary’s laws on pre-trial detention, the time spent in pretrial detention counts towards the total prison time,98 while in Ireland, which belongs to the Anglo-Saxon legal tradition, this is not necessarily the case.99 Paragraph (1) of Article 26 of the Framework Decision on the European arrest warrant mentions the issue of time deduction, but only in the reverse case: the provision only obliges the issuing, but not the executing state to ‘deduct all periods of detention arising from the execution of a European arrest warrant from the total period of detention to be served in the issuing Member State as a result of a custodial sentence or detention order being passed.’ Therefore, the framework decision is not helpful in figuring out the question whether Ireland should take into account the time the convict had spent in surrender custody in Ireland. However, there might be a way to sort out this problem. Since Mr. Tobin had begun his sentence in Hungary, we could argue that according to both the Hungarian legislation and the (unimplemented) framework decision the time spent in pre-trial detention in the executing state, Ireland, should be taken into account in Hungary, the state requesting extradition; therefore, regardless of the fact that the convict left the country after five days and Ireland took over 97 Road Traffic Act, 1961. ‘Dangerous driving. 53.—(1) A person shall not drive a vehicle in a public place at a speed or in a manner which, having regard to all the circumstances of the case (including the nature, condition and use of the place and the amount of traffic which then actually is or might reasonably be expected then to be therein) is dangerous to the public. (2) A person who contravenes subsection (1) of this section shall be guilty of an offence and— (a) in case the contravention causes death or serious bodily harm to another person, he shall be liable on conviction on indictment to penal servitude for any term not exceeding five years or, at the discretion of the court, to a fine not exceeding five hundred pounds or to both such penal servitude and such fine.’ 98 Para. 1 Art. 92 of Act C of 2012 on the Criminal Code: ‘The entire duration of preliminary detention and house arrest shall be included in the final sentence, whether it is a term of imprisonment, custodial arrest, community service work or a fine.’ 99 Anton M. van Kalmthout et al. (Eds.), Pre-trial Detention in the European Union: An Analysis of Minimum Standards in Pre-trial Detention and the Grounds for Regular Review in the Member States of the EU, Nijmegen, Wolf, 2009, p. 521.

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the execution of the sentence, the Hungarian laws are to be followed and the months spent in custody should be taken into account. In this way Ireland should take over the execution of the sentence with the Hungarian prison time already deducted. This legal opinion can be ascertained from the 2012 decision of the Supreme Court, or more precisely, from Justice O’Donnell’s concurring opinion, in which he refers to the letter by the Chief Prosecutor of Ireland, which shares that opinion.100 In summary, therefore, the time spent in Irish custody counts, while nothing can justify the moving forward of the date for early release. It seems that the Supreme Court of Ireland agreed with this reasoning, therefore the court decided that Mr. Tobin could be released for probation after serving 595 days, that is almost 20 months, at the earliest.101 In his letter dated on 5 February 2014 Ciarán Tobin expressed his regrets and for the first time apologised from the Zoltai family directly. Bence Zoltai deems the case as finished,102 and it seems, the Tobin case came to an end from a legal point of view, too.

28.14 The Legal Theory Background as the Critique and Explanation of Refusing Surrender The existence of principles such as mutual trust and confidence is certainly a very interesting question, and if it arose for discussion in any other forum than a court dealing with an application […] for surrender, it would undoubtedly generate considerable academic and interesting debate said Judge Peart in his decision refusing surrender in the first round.103 The current study however is an adequate forum to discuss the issue. In the following, in the first part of Chapter VII, I will summarise the lessons learned from the operation of EU criminal justice functioning along the lines of intergovernmentalism and the importance of comparative law in the area of freedom, security and justice. In the second part of Chapter VII, I will show how the Tobin case proved my two hypotheses: first, that EU criminal justice needs to move away from intergovernmentalism and second I will argue for the need for minimum harmonisation of procedural guarantees and prison law in order for mutual trust-based instruments to work.

100 Supreme Court of Ireland, Minister for Justice Equality and Law Reform v. Tobin, see footnote 28. 101 Attila Fekete Gy., ‘Nyolc hónappal többet ülhet az ír gázoló’, 21 January 2014, http://nol.hu/belfold/20140121nyolc_honappal_tobbet_ulhet. 102 14 év után: Különös dologra szánta rá magát az ír gázoló, 5 February 2014, http://hetivalasz.hu/vilag/az-apaezzel-lezartnak-tekinti-az-ugyet-7291. 103 High Court, see footnote 19.

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28.15 De lege lata: Case-by-Case Evolution of European Criminal Justice and the Importance of Comparative Law The notion of legislation based on a single case is generally repudiated by legal experts, who view the idea as a mindless political act jeopardizing the coherence of the legal system and transgressing important legal principles. While this is certainly true at the national level, one must be guarded in one’s criticism with regard to EU criminal law, where legislative response to case-law should be attributed to the weaknesses of the halting inter-governmental cooperation in the enforcement of criminal law. In the former third pillar, legislation adopted in response to the shortcomings of judicial cases and the rectification of the resulting mistakes were the necessary accompaniments of the evolution of EU law. The laws that became enacted were carefully drafted framework decisions mainly restricted to defining the goals without prescribing the modes of implementation, in congruence with the principle of inter-governmentalism that characterized the earlier cooperation in fighting against crime. EU interference in the regulation of criminal law, regarded to be a core issue of national sovereignty, would have offended the sensitivity of the Member States, with the result that any discontented state could easily have vetoed the passing of the draft bill, as the third pillar required unanimity in legislation. For this reason, thirdpillar instruments conferred Member States considerable with a significant margin of discretion in the phase of implementation, while there were practically no sanctions for failure to transpose, faulty or non- implementation or erroneous legal interpretation. The framework decisions per definitionem had no direct effect, the Committee could not initiate legal proceedings, and the sphere of influence of the Court was extremely limited.104 The Tobin case can also serve as an excellent example to demonstrate how the Member States were able to practice self-correction, as they learned from the miscarriages of the law and, gradually and step by step, they rectified the mistakes resulting from the jealous protection of their sovereignty and improved cooperation in criminal justice. After the failed attempt at Mr. Tobin’s surrender – in recognition of the differences between the Anglo-Saxon and the continental legal systems and in order to avoid repetition of such an embarrassing situation – the Irish legislature introduced comprehensive changes in their criminal code by Act 28 of 2009, which, in Section 6, eliminated all obstacles from the path of Francis Ciarán Tobin’s extradition. The Irish implementation of the Framework Decision not just draws the attention to the difficulties of intergovermentalism, but also emphasises the importance of comparative law. Ex post facto it has become clear that the legislator did not intend to bypass EU law,

104 Still, the European Court of Justice engaged in a rather extensive interpretation once it had the chance to rule on a framework decision, which was a victims’ rights intrument in this case. See Criminal Proceedings against Maria Pupino, footnote 38.

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but the lawmaker simply proceeded in accordance with its own procedural legal system and in the course of implementation it merely considered the possibilities provided by common law. The in absentia hearing is unconceivable in common law systems, i.e. in legal systems where the emphasis is on the hearing and verbosity, parties determine the issues that need to be proven, and where the importance of direct and cross-examination is highly appreciated. Expressing national procedural law chauvinism is a clear fault in the context of a legal instrument that is concerned precisely with cooperation between different law systems,105 and this legislative mistake is the major reason why the Irish court could not and did not surrender Mr. Tobin. The Irish legislators have failed to take into account the differences between the AngloSaxon and the continental legal systems, and this omission was partly due to the fact that both the Tampere conclusions106 and the first recital of the Framework Decision on the European arrest warrant were concerned with the issue of fleeing from justice after a final court decision. According to the latter, ‘the formal extradition procedure should be abolished among the Member States in respect of persons who are fleeing from justice after having been finally sentenced and extradition procedures should be speeded up in respect of persons suspected of having committed an offence.’ (emphasis added) Therefore, the first recital of the Framework Decision apparently recognizes arrest warrants issued to order the execution of a final sentence only in the case when the convicted person flees justice; in other respects, it only permits surrender to facilitate a criminal procedure. The recital also makes reference to the conclusions of the Tampere council, although its phrasing is much broader: for those cases, where the convicted person flees the given country after receiving the final sentence, it recommends a simple extradition procedure, while generally it proposes speeding up the surrender procedure, but without limiting the latter to the cases of conducting criminal procedures and therefore extending it also to the execution of sentences, regardless of the first part of the sentence.107 However, these fine nuances are irrelevant from the perspective of the implementation, since it is not the Tampere conclusions that the Member States are obliged to transplant, while the recitals have, by their nature, an explanatory function and under no circumstances can be regarded as ‘hard’ law. What should have been properly executed are those provisions of the Framework Decision, where the relevant definition was provided in Paragraph (1) of Article 1, which defined the legal institution of the arrest warrant as follows:

105 Károly Bárd, Vádlottak jogai és sértettek érdekei a nemzeti és nemzetközi büntetőeljárásban, Kézirat, 2013; Károly Bárd, Fairness in Criminal Proceedings, Budapest: Magyar Közlöny Lap- és Könyvkiadó, 2007, pp. 11-12. 106 Council of the European Union, Presidency Conclusions, Tampere European Council, 15-16 October 1999, 16 October 1999, Para. 35. 107 Ibid.

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The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. [emphasis added] Therefore, the main text makes no mention of absconding. Accordingly, the implementation should have taken into account the possibility of prosecution in absentia, which is legal under continental law. In the interest of making the picture more complete, it is worth mentioning that Hungary also modified its criminal code as a consequence of the Tobin case: effective from 1 September 2008, Act XXVI of 2008 narrowed the possibility of depositing security.108 It gives the following reasoning: At the moment the regulation does not specify the range of criminal acts qualifying for depositing security. The law only states that it is permitted in cases where the accused, if found guilty, is likely to be given a sentence involving either a fine or a suspended prison term (possibly supplemented by a fine). The possibility however cannot be ruled out that the accused, who flees the country after depositing security, will eventually receive an actual prison sentence. In this regard, the court has wide latitude. Narrowing the area where the application of security is permitted is justified, in order to avoid the problems that arise in current sentencing practice.109 Accordingly, for the future the option of release on security is only allowed in the case of criminal acts punishable by a prison term of less than eight years on the one hand, and it is not allowed at all if the criminal act resulted in death, on the other. It is also a new feature of the 2008 modification that the accused has to state explicitly in the request whether he or she will return to Hungary, if the execution of the judicial decision so requires.110 108 The bill was passed in Parliament with 355 MPs voting ‘yes’ and one voting ‘no’. The subject matter of the law was actually rather different: Act XXVI of 2008 modified the rules of the application of the legal instrument of security as defined in Art. 20, Para. (1) of Act CIV of 2001 on the penal sanctions applied to legal persons. 109 The reasoning of Act XXVI of 2008 modifying Act CIV of 2001 on penal sanctions against a legal person. A detailed reasoning for Art. 20. 110 The modified provision of Act XI of 1998 on the Criminal Procedural Code is the following: ‘Article 586, § (1) Upon the request of a defendant living abroad, up to the filing of the indictment the prosecutor, thereafter the court may permit the deposit of a security, in case the criminal act involved is punishable with less than eight years imprisonment. In such a case the procedure may be conducted in the absence of the defendant. Security may not be deposited if the crime resultd in death. […] (3) In the request for permission of depositing a security, the defendant shall authorise the defence counsel to receive the official documents addressed to the defendant (mailing agent), furthermore the defendant has

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The Hungarian legislation – unlike the occasional self-correction that is a necessary side-effect of inter-governmentalism – is a text-book case of unnecessarily creating laws in reaction to actual cases that have produced great public outcry. Had the court used the institution of security correctly, possibly as bond for the legal costs of the case, but not as bail, then the problems of surrender would never have risen, since in that case it would have been clear that the security was not meant to guarantee the return of the accused in case of being convicted, and so this purpose should have been achieved in some other way. On top of that, the new law fails to solve the problem arising in criminal acts where the death of the victim follows the time of the accused foreigner’s departure from Hungary,111 nor does it answer the question of what should happen to an accused foreigner who is ordered to stay in Hungary until the final sentence is issued, which could take years. The new law also creates practical difficulties every year for about thirty to sixty foreign defendants,112 who probably speak no Hungarian, or not well enough to find a job, and who cannot be expected to bring their entire family to Hungary for the duration of the proceedings. Presumably, the option of forcing them to reside in a foreign country is not the least restrictive of all the possible methods to secure the execution of their punishment.

28.16 De lege ferenda – Harmonisation of Minimum Standards Reinforcing Mutual Trust People who drive have one foot in the grave and the other in prison, the Hungarian saying goes. But one must be held responsible for it, anyway. What is more, one must be held responsible according to the law of the country where one has caused the accident, even in the case when the driver would not have been held criminally responsible, or would have received a milder punishment, such as a conditional prison sentence, for the same act in his or her own country. Evidently, Francis Ciarán Tobin found it difficult to accept this. As Tibor Navracsics has put it, ‘Tobin has failed as a human being.’113 Not necessarily for what he has done, which is something he will have to live with for the rest of his life and that is punishment enough, but for his determination to do everything in his power to state in the request that he or she will return to the territory of Hungary if needed for the sake of enforcing a prison sentence. […]’ (modifications in emphasis, emphasis added by the author). 111 A case in point is the criminal proceedings against Radimir Cacic, Croatia’s former Deputy Prime Minister, who in January 2010 was driving along the Hungarian motorway M7 under extremely poor weather and road conditions, in pelting rain and dense fog, without fog light, causing a road traffic accident where two people were injured and two persons died. Still on the day of the accident, Cacic deposited security and left Hungary, which he was able to do because all the victims were still alive on the day of the accident. Two of them died later of their injuries: one passed away the following day, and the other six month later. 112 Data provided by the Hungarian Central Statistical Office. 113 See the press conference by Mr. Tibor Navracsics conveined on 5 December 2014. The original can be downloaded from the following webpage: www.rtlklub.hu/hirek/belfold/video/230207.

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to avoid paying the legal consequences, up to the point of acting in bad faith and abusing the law, which he did when he broke contact with his lawyer so that he could refer to a trial in absentia, when in fact he had clearly benefitted from being defended by a Hungarian legal attorney while he could return to his home country. It also speaks volumes that right until 5 February 2014 he never bothered to show remorse directly to the Zoltay family: he invariably expressed remorse only in letters addressed to the appropriate authorities, and always at a time when he hoped to gain some procedural advantage from it. Mr. Tobin pushed himself into more and more indefensible positions, and with every new legal trick he applied in the course of his legal defense, the people’s wrath against him was growing. After a certain point his aversion to serve his time in a Hungarian prison became understandable, yet if he had surrendered himself to the Hungarian authorities in 2002, the situation would have been entirely different. Recognising the limited capability of national and Union legal actions, many outraged Hungarian citizens advocated the taking back of criminal justice and intended to retaliate personally.114 It was not the crime itself that raised hatred against Mr. Tobin, but the realisation that the perpetrator abused the law or rather effectively used the gaps in the legal systems and the mistakes of implementation. This is what triggered visceral reactions that were highly destructive. Still, one should not expect the solution to a bungled criminal proceeding to come from the convict, and obviously the case has interest for legal scholars not on account of Mr. Tobin’s psychological profile, but because it sheds light on the importance of cooperation in the area of European criminal justice and its current weak sides. This case confirms the hypothesis that without laws passed on the basis of the principle of supranationalism the EU justice system will not work. Neither national legislations nor an extensive judicial interpretation of the laws can make up for the cumbersome legislation process, the resulting laws of shallow and poor quality and the lack of enforceability. The criminal justice regime of an ever closer European Union can only be made more effective by a closer cooperation between the Member States based on EU law. If the Member States had not protected their national sovereignty in the area of criminal justice, then a Luxemburg decision would have preceded the ruling of the Irish Court under the preliminary ruling procedure, which would obviously have come down on the side of Mr. Tobin’s surrender. If the third pillar, similarly to the first pillar, could have functioned in compliance with the principle of supranationalism, then the Commission could have initiated an infringement procedure for the faulty national implementation. Finally, if the Court of Justice had more authority, it could have faulted Ireland for failing to keep the deadlines of 60 days and 90 days, respectively, and thus the issue of harassment by the state would

114 See for example a Hungarian language web-based discussion forum about reckless drivers and another one created in memoriam of ‘two little persons’: http://forum.index.hu/Article/showArticle?t=9016937; http://forum.index.hu/Article/showArticle?na_start=1618&na_step=30&t=9015567&na_order.

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never have risen in the domestic Irish court. At the same time, we must also see that cooperation in criminal justice can produce positive results even when it is operated along the principle of inter-governmentalism: in the absence of the nascent criminal justice regime of the European Union the problems outlined in the present study would never have come to light, as the surrender by a Member State of its own citizen had not been made mandatory by any international legal instruments before the enactment of the Framework Decision on the European arrest warrant. If there was no European Union, there wouldn’t be a Tobin case: the option of surrender would never have arisen and the blame for releasing the defendant without appropriate guarantees for his return would squarely be laid on the doorsteps of the Hungarian court. In summary, therefore, we can conclude that without the European Union and without EU criminal justice there would be no Tobin case, while on the other hand, more EU laws would have resulted in a more efficient administration of justice. I believe the core of the problem of not having ‘enough EU law’ can be traced back to the lack of mutual trust. Even though at the Tampere summit back in 1999 the principle was named as the cornerstone of judicial cooperation on which European criminal justice should have been based, mutual trust is still not fully realised among Member States. The Framework Decision under scrutiny clearly shows this lack of trust. This can be traced in both the codification technique of the instrument and also its application in practice. In the European arrest warrant context, had mutual trust existed, both the mandatory and conditional grounds for non-execution would have been redundant as judgements of a Member State would automatically be enforceable in any other Member State without the need for formulating exceptions. Guarantees would not be necessary either if human rights would uniformly be respected and enforced. The full realisation of this principle or rather vision however is in an unpredictable distance. Consider for instance the diverse interpretations of the sanction of real life imprisonment, or life imprisonment without the possibility of parole, as representatives of other jurisdictions name it. The practical enforcement of human rights standards also implies enormous differences across the EU. As long as this remains to be the case, mutual trust does not exist and can not exist either. As long as certain Member States are worried about their citizens’ basic rights and respect for their procedural guarantees due to different fundamental rights standards, they leave short-cuts in their legislation not to enforce EU law and at the same time they interpret EU law in a restrictive way.115 As we have seen in the case under discussion, especially the decision of the court of second instance in the second round, the judiciary may further expand the scope of exceptions and create novel grounds for refusal of requests for surrender. As long

115 Gert Vermeulen et al. (Eds.), Rethinking International Cooperation in Criminal Matters in the EU. Moving beyond Actors, Bringing Logic Back, Footed in Reality, Antwerpen, Apeldoorn, Portland, Maklu, 2012, pp. 269-270.

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as the Member States – with or without good reason – have no faith in each others’ human rights protection mechanisms, the administration of EU criminal justice will remain cumbersome and – what could potentially have fatal consequences to the EU legal system – the Member States may invoke the protection of basic human rights in order to permit exemptions from the principle of primacy of EU law.116 The establishment of a uniform EU human rights regime might be the answer to this problem. Interestingly enough, however, if the so-called fundamental rights culture of the EU were to take roots117 and were to fully cover the area of the third pillar, this would once again – this time originating from top down, from the international level – give rise to exemptions from the administration of criminal justice. Currently the nation-states are the ones who try to phrase the written legal instruments with due caution, while attempting to block their execution in practice, but for the future it might the courts in Luxemburg and Strasburg who might limit the application of the relevant framework decisions and directives – on the basis of human rights considerations that are practically very similar to those used by the Member States. If a Member State fails to implement the human rights regime at the appropriate level, not only will it no longer have the level of trust that forms the basis of the legal instruments of criminal justice, but it will also be against the law to execute them. To put it differently, if it should turn out in the future that the Member States rightly do not trust each other with regard to fundamental rights, procedural guarantees, and prison law, this will justify, and even make mandatory, departure from the primacy of EU law.118 Nevertheless, according to Károly Bárd the lack of trust will not result in the return to the traditional principles of criminal cooperation as these principles clearly slow down cooperation and weaken the effectiveness of criminal investigations. Rather there is a significant interest towards criminal investigation and cooperation. Therefore I don’t

116 See the seminal Solange cases of the German Federal Constitutional Court: Solange I, BvL 52/71, BVerfGE 37, 271, 29 May 1974; Solange II, 2 BvR 197/83, BVerfGE 73, 339, 22 October 1986. 117 See footnote 3. 118 I was approached by UK attornies trying to prevent the surrender of their Roma clients to Hungary by arguing that they would be discriminated against by the justice system during a criminal procedure. Among others they try to underpin this by country reports of the European Commission against Racism and Intolerance and the UN’s Special Rapporteur on contemporary forms or racism, xenophobia and related intolerance. See the ECRI report on Hungary (fourth monitoring cycle), 20 June 2008, www.coe.int/t/dghl/monitoring/ecri/country-by-country/hungary/HUN-CbC-IV-2009-003-ENG.pdf, especially Para. 186; UN’s Special Rapporteur on contemporary forms or racism, xenophobia and related intolerance (‘Special Rapporteur’) report, 23 April 2012, www.ohchr.org/Documents/Issues/Racism/A.HRC.20.33.Add.1_en.pdf, Para. 58. In a different context, but about the obligation to depart from an EU law’s general rules in order to give preference to individuals’ human rights see European Court of Human Rights, M.S.S. v. Belgium and Greece, Appl. No. 30696/09, 21 January 2011.

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envision a return to the principles of traditional legal assistance – along the lines of mutual diffidence –, but I suspect the harmonisation of procedural guarantees, which will create trust for the future.119 The heads of states and governments reached the same conclusion in the Stockholm program that is surprisingly honest regarding the principle of mutual recognition. The Stockholm program expresses a straightforward criticism and intends to establish that mutual trust which was the alleged cornerstone of several documents adopted after 11 September 2001 was in reality not there. In order to remedy the problem and create trust, the multi-annual program propagates legal harmonisation. ‘The approximation, where necessary, of substantive and procedural law should facilitate mutual recognition.’120 By 2012 several important EU laws were passed to this effect, for instance laws on the right to interpretation and translation in criminal proceedings, the right to information in criminal proceedings and the establishment of minimum standards on the rights, support and protection of victims of crime.121 The above illustrated development of judicial cooperation supports the neo-functionalist explanation of the evolution of European integration. At the early stage of integration, Members States declined each and every rudimentary formal criminal cooperation. The free movement of persons in respect of the area of freedom, security and justice, in addition to the formation of subjects of legal protection at Community level necessitated common criminal investigation and cooperation in European decision-making (first spill-over effect).122 The initially stalling criminal cooperation and the fear of Member States of losing a considerable segment of their national criminal sovereignty resulted in the formation of norms that are highly influenced by politics, hardly enforceable and represent lower level of cooperation: instead of legal harmonisation the adopted provisions comply with the principle of mutual recognition. However, in the lack of adequate, communautarised, enforceable minimum procedural guarantees and human rights mechanism, such provisions were not able to operate effectively. Currently, we are witnessing how due process guarantees complement existing provisions and how an EU criminal procedural law system evolves, as a second spill-over effect, in order to maintain and promote an effective criminal 119 Károly Bárd, ‘Az igazságszolgáltatási rendszerek összehasonlító vizsgálata – jogközelítés – vádlotti jogok’, in Balázs Gellér (Ed.), Békés Imre emlékkötet, Budapest, Tullius Kiadó, 2013, pp. 16-34, 29. 120 Stockholm Programme, Section 3.1.1. 121 Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings; Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings; Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA. 122 Ernst B. Haas, Beyond the Nation-State, Stanford, Stanford University Press, 1964; Philippe C. Schmitter, ‘Three Neo-Functional Hypotheses about International Integration’, 23(2) International Organization (1969), pp. 161-166.

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Traps of Judicial Cooperation in Criminal Matters: The Tobin Case

cooperation. This is how minimum harmonisation of due process guarantees permits mutual recognition-based laws to survive. Bence Zoltai, the victims’ father recognised both the importance of enforcing the state monopoly on coercion and criminal power, and also that this criminal power is located at various levels of governance in the European Union. He said he was ‘truly concerned that most of the people merely believe in personal revenge, but intended to prove that the state is able to adequately accomplish criminal justice. As we are living in the European Union, justice shall not rely on whether we are in Hungary or in Ireland.’123 Agreeing with Mr. Zoltai I believe that criminal law needs to be adjusted to the reality of multi-level governance and substantial parts of national sovereignty need to be transferred to actors other than the nation state. This again can only be realized with the completion of the EU’s fundamental rights culture in the area of criminal justice.

123 Péter Cseri, ‘Tobin-projekt lépésről lépésre’, Népszabadság, 24 July 2012.

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On the Issue of the Representation of Nationalities in the Parliament

Gábor Kurunczi*

29.1

Introduction

Act CCIII of 2011 on the Elections of Members of Parliament (hereinafter referred to as ‘Act on the Elections of Members of Parliament’), adopted in late 2011, established – besides bringing about other changes – the institution of national minority lists. These lists compete with the national lists, in addition to providing a channel for national minority voters enrolled in the national register. The institution of minority lists seems to have received the least criticism from among the recent changes; however, circles of national minorities in Hungary raised a number of questions – e.g. difficulties inherent in representation – concerning the workability of such lists. But did the representation of minorities in the Parliament actually amount to a veritable problem? Is it a viable concept for an MP to be elected on the basis of his minority status in a unicameral parliament? Does the new system solve the old problems? What pitfalls may the institution of separate minority lists entail? Or is there an alternative path? In my paper, I attempt to answer these questions by examining the parliamentary representation of various minorities. It is important to point out that the paper does not seek to answer the broader question of whether the representation of minorities is necessary or not. Instead, I limit my analysis to the relevant constitutional concerns and the viable responses given to the issue of minority representation.

29.2

The Parliamentary Representation of Minorities

Before embarking upon the analysis of the current legislation, it is worth addressing the historical and international aspects of the question of minority representation.1 * 1

Researcher, lecturer at the Pázmány Péter Catholic University, Faculty of Law; Legal advisor to the Hungarian Commissioner for Fundamental Rights. E-mail: [email protected]. By the entry into force of the Fundamental Law, the previously employed term of national and ethnic minorities – as enshrined in the Constitution – was simply changed to nationalities. Since the two designations cover the same 13 ethnic groups and their members, the difference in terminology is of no significance,

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Gábor Kurunczi

Almost every European state was bound to deal with the issue of minorities arising as a central problem in the 17th-18th centuries. This was ever so vital in Hungary, where minorities had always played a significant role in the history of the country.2 Due to the above, the evolution of the representation of national minorities over the centuries is of crucial significance. It is generally held that countries with a homogeneous population tend to maintain a unicameral legislation, whereas those whose population is more divided along the lines of language, religion, ethnicity, etc., the bicameral system is more appropriate.3 The latter is rooted in the English experience,4 where the second chamber (the House of Lords) acted as a counterbalance for the representation of the people.5 It was set out to secure the representation of the privileged orders and classes, all based upon their different and respected position within the society.6 The legal title of members in upper houses changed in the framework of new mass democracies emerging after World War II. Membership was no more linked to privileges, but the reason for maintaining the system rested on the perception that the forum (e.g. the House of Lords) needed to be preserved so to uphold basic social conditions.7 In this respect, it should be pointed out that the representation of minorities was established mainly in the form of a second chamber based on corporative representation (e.g. comprising representative of different occupations, corporations – as in the case of Ireland). This conforms to the observation that second chambers are normally established in countries with a large territory or population (Italy, for instance) in order to take partic-

2

3 4 5 6 7

especially when one looks at the application of the legal principles elaborated in earlier rulings of the Constitutional Court. At this point, we have to mention Decision 14/2013 (VI.17) of the Constitutional Court, in which the Court concluded that it (ie. the Court) may refer to or cite the reasoning and the legal principles elaborated in its earlier, albeit repealed decisions, with the indication of the source, and by quoting or summarizing the content to the extent necessary for taking a constitutional position in the case in question. Nationalities actually outnumbered the Hungarian population more than once during the 1000-year history of Hungary. See more in Gy. Bindoffer, ‘Nemzetiségi politika Magyarországon Szent István korától a rendszerváltozásig (Minority Policy in Hungary from the age of St Stephen to the Transition), in T. Gyulavári and E. Kállai (Eds.), A jövevényektől az államalkotó tényezőkig (Newcomers into constituent groups), Budapest, Office of the Parliamentary Commissioner for Civil Rights, 2010. Quoted in: A. Magicz: ‘A nemzetiségi jogok új szabályozása – Jogkorlátozás vagy a realitások tudomásulvétele? (Re-Regulation of National Minority Rights – Restriction of Rights or Acknowledgement of Realities?)’, in B. Hajas and M. Szabó (Eds.), Pajzsuk a törvény – Rászoruló csoportok az ombudsmani jogvédelemben (Their Shield Is the Law – The Ombudsman’s Protection for Vulnerable Groups), Budapest, Office of the Commissioner for Fundamental Rights, 2013. pp. 27-31. Z. Szente, Bevezetés a parlamenti jogba (Introduction into Parliamentary Law), Atlantisz, Budapest, 2010, p. 77. J. Petrétei, ‘A modern parlamentek – alkotmányjogi szempontból’ (Present-day parliaments from the point of constitutional law), 47 INFO – Társadalomtudomány (1999), p. 13. M. Dezső, Képviselet és választás a parlamenti jogban (Representation and election in parliamentary law), Közgazdasági és Jogi Könyvkiadó, MTA Állam – és Jogtudományi Intézet, Budapest, 1998, p. 108. Szente, 2010, p. 78. Szente, 2010, p. 79.

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On the Issue of the Representation of Nationalities in the Parliament

ular (e.g. minority) interests into account to the highest possible extent in the process of legislation.8 The idea of a bicameral legislation in Hungary emerged following the transition exactly for the reason of establishing appropriate representation for minorities. This was also why both professional and political circles in the 1994-1998 era examined the possibility of setting up a second chamber,9 however, the issue remained in a state of limbo for some time. To provide a few examples: a) Act XVII of 1990 – regulating the election of minority delegates by the Parliament – was first passed but then quickly annulled; b) a bill was introduced in 1993 but was never passed regarding the regulation of the direct election of minority representatives from lists (competing with the national lists) by members of the minorities, and the right to vote of Hungarians living abroad. According to another, much debated bill – introduced in 1997 then revised in early 1998 –, it would have been up to the majority of the voters to decide which minorities could delegate members in the Parliament.10 In some of the Central- and Eastern-European countries – mainly, but not exclusively in those that have a bicameral legislation – the idea of the representation of nationalities (minorities) did not only discussed, but also put into effect. The perception of the system is slightly different in Spain and Cyprus due to the special territorial structure in the former and the Greek-Turkish division in the latter. In Spain, autonomous communities are entitled to send 1 delegate after every million habitant to the upper house of the Cortes,11 whereas in Cyprus – at least to the provisions of the constitution12 – 70% of the representatives are elected by the Greek, and the remaining 30% by the Turkish population – separately, but at the same time.13 Although since the territorial separation of Greenland and the Faroe-Islands, Denmark is not one of the textbook examples either, it is worth mentioning the provisions of the Danish constitution, which affords the minorities living in the above mentioned constituent countries the right to delegate two representatives to the Folketing.14 In Poland, minorities have the possibility of preference at the point of the drawing up of national lists. That is to say, if any national minority draws up a list in at least five constituencies, it becomes entitled to draw up a national list.15 Eighty-eight members are elected according to the general rules in Slovenia, and one additional representative is delegated by each of the Italian and Hungarian communities by the constituen-

8 9 10 11 12 13 14 15

Petrétei, 1999, p. 13. Dezső, 1998, p. 115. Dezső, 1998, p. 117. B.D. Tóth, ‘Spanyolország’ (Spain), in N. Chronowski and T. Drinóczi (Eds.), Európai kormányformák rendszertana (Taxonomy of European government systems), HVG Orac, Budapest, 2007, p. 350. Since the representation of the Turkish is practically non existent. M. Kocsis, ‘Ciprus’ (Republic of Cyprus), in Chronowski and Drinóczi, 2007, p. 409. A.L. Pap, Identitás és reprezentáció (Identity and representation). Gondolat kiadó, Budapest, 2007, p. 198. Dezső, 1998, p. 191.

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cies specially constructed for this very purpose, providing that the votes cast by 30 members of the community suffice for a seat.16 Also note that voters of Hungarian and Italian nationality may vote not just for their own representative but also for a (national) party list.17 In Croatia, the number of votes necessary for acquiring a minority quota is very low. As a result, the Albanian, Bosnian, Macedonian, Montenegrin, Slovenian, Czech, Slovakian, Serbian, Italian and Hungarian minorities may all delegate a representative.18 In Romania, the minorities that did not win a seat according to the general rules19 but nevertheless attained 5% of the votes,20 can acquire a seat according to the preferential rules. Article 100 paragraph 2 of the Serbian Constitution declares and guarantees the equality and the representation of minorities and genders in the parliament. Article 81 paragraph 2 of the act on the election states that parties or coalitions of parties of national and ethnic minorities are eligible for a mandate even if they have not reached the 5% threshold.21 The role of the three constituent ethnic groups (Serbian, Croatian and Bosnian) in Bosnia and Herzegovina is manifested both in the composition of the elected organs (mainly with a ratio of 1/3 each) and in their election. That is to say, those belonging to the same ethnic group may vote only for candidates of the same ethnicity, excluding voters of a different (e.g. Jewish, Gypsy) ethnic affiliation.22 The above clearly demonstrates that many countries have found a solution to the parliamentary representation of minorities in Eastern and Central Europe. Already in 1992, the Hungarian Constitutional Court dealt with the question of the representation of (national) minorities in its Decision 35/1992 (VI.10) and found an unconstitutional omission on the side of the legislator. The Court arrived at the following conlusion: the passage of the Constitution declaring that nationalities and ethnic groups living in Hungary represent a constituent part of the state makes it of extraordinary importance that the issue be regulated by the law. Necessary representation is a prerequisite for the nationalities and

16 Dezső, 1998, p. 188. 17 www.szazadveg.hu/files/hirek/az-uj-magyar-valasztasi-rendszerSzazadveg-tanulmany130802.pdf (November 26, 2013), p. 29. It is worth mentioning here that the Slovenian Constitutional Court examined the special election rights of the nationalities and concluded that the double voting of those affiliated with the Hungarian and Italian nationality is not unconstitutional, since this is the only way for the succession of the right of nationalities for representation as guaranteed in the constitution – although moving away from the principle of equal suffrage. See more in: Report 3032/2006 of the Parliamentary Commissioner for the Rights of National and Ethnic Minorities http://epa.oszk.hu/01200/01259/00028/pdf/belivek_46-49.pdf (November 26, 2013). 18 www.szazadveg.hu/files/hirek/az-uj-magyar-valasztasi-rendszerSzazadveg-tanulmany130802.pdf (November 26, 2013), p. 29; in a similar manner to the system in Hungary, minorities in Croatia may vote for either the national or the minority list. 19 Dezső, 1998, p. 187. 20 www.szazadveg.hu/files/hirek/az-uj-magyar-valasztasi-rendszerSzazadveg-tanulmany130802.pdf (November 26, 2013), p. 29. 21 M. Kocsis, ‘Szlovákia’ (Slovak Republic), in Chronowski and Drinóczi, 2007, p. 584. 22 Kocsis, in Chronowski and Drinóczi, 2007, p. 604.

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On the Issue of the Representation of Nationalities in the Parliament

ethnic groups for fulfilling their role as constituent parts of the state. It also established that the Parliament failed to carry out the legislative duty set forth under Article 68 of the Constitution, contributing thereby to a situation of unconstitutionality. In light of the above, the Court called upon the Parliament to fulfill its obligation and pass the relevant law no later than the 1st of December 1992. Acting upon this duty, the Parliament adopted Act LXXVII of 1993 on the Rights of National and Ethnic Minorities. Article 20 paragraph 1 states that: ‘minorities have the right – as determined in a separate Act – to be represented in the National Assembly’. Rules pertaining to elections however, failed to implement this commitment, resulting in a new complaint submitted to the Constitutional Court by the minorities, opposing Act XXXIV of 1989 on the Election of the Members of Parliament. In its Decision 24/1994 (V.6) the Constitutional Court rejected the petition without an examination of the merits; however, it emphasized in the reasoning that the Decision 35/1992 (VI.10) of the Constitutional Court had already established an unconstitutional omission concerning the parliamentary representation of nationalities and ethnic groups. In declaring so, the Court made it unambiguous that the legislative power must adopt the rules that regulate the parliamentary representation of minorities.23 Nevertheless, we shall ask if it was really the failure of the legislation that the parliamentary representation of the different minorities was left unregulated. András Jakab holds the view that the Constitutional Court in its 1992 decision mentioned only the representation of the minorities – and not the issue of parliamentary mandates –, which was actually solved by the establishment of minority municipalities.24 By contrast, in several of its later decisions the Constitutional Court went back to the basis of its 1992 ruling, emphasizing that the problem was never solved. This was also acknowledged and further strengthened in Resolution No. 37/2010 (VI. 16) of Parliament, which put an emphasis on the adoption of a law regulating the parliamentary representation of nationalities. The resolution declared that the principles and deadlines set out in Resolution No. 20/2010 (II. 26) of the Parliament on the legislation process pertaining to the parliamentary representation of national and ethnic minorities have to be taken into consideration during the preparation of the election reform serving the reduction of the number of members of Parliament.25

23 Later, another petition was submitted, requesting once again the establishment of unconstitutionality by ommission. In order of the president of the Constitutional Court, the Court ruled it had no possibility to either re-establish the omission or to force the decision-makers in any other way should the legislation fail to fulfil its regulatory duty within the previously given deadline. 24 A. Jakab, ‘Miért nincs szükségünk második kamarára? (Why don’t we need a second chamber?)’, XX(1) Politikatudományi Szemle (2011), p. 20. 25 B.Sz. Gerencsér, ‘Gondolatok az új nemzetiségi törvényről’ (Notions on the new minority law), Pázmány Law Working Papers, No. 2012/34, p. 4, http://plwp.jak.ppke.hu/images/files/2012/2012-34-Gerencser.pdf (November 26, 2013).

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29.3

International Foundations

The question of supporting the gentilic representation appears on many levels and various provisions of international law. Therefore, it is worth highlighting those declarations, pacts and nominations, which serve the validation of nationality interest. The Council of Europe accepted the Framework Convention For The Protection of National Minorities in 1995, which foresees that the states ensure the conditions for national minority groups’ structured participation in public affairs.26 The Council agrees with the 1992 decision of the United Nations General Assembly which takes a stand for national minority groups right to take part effectively in public affairs.27 The UN’s Working Group on Minorities operating until 2006, established that the national minorities’ right to take part in public affairs in the broadest possible sense is of elementary importance. It is in the interest of persons belonging to a minority to achieve an effective form of representation.28 A further relevant development is the establishment of the Helsinki office of the High Commissioner on National Minorities by decision of the Organization for Security and Co-operation in Europe (OSCE) in 1992. As a result of the conference organized by the OSCE High Commissioner and Office of Human’s Rights the Lundi References were adopted.29 The aimsims of the Lundi References is to encourage and to assist in the application of special measures in connection with existing tensions surrounding minorities. Therefore the Lundi’s References inspire states to actively involve minorities in governance. There is a further aim to Lundi’s References. States must ensure, that minorities can truly let their voice be heard on the level of central goverment – for example through a certain number of seats reserved in one of or both of chambers of the parliament or its commissions – furthermore, the election system of states must enable the represention and participation of minorities.

29.4

Relevant Provisions and Criticism of the Act CCIII of 2011 on the Elections of Members of Parliament

Based on the preliminary findings of the present paper, we can arrive at the following conclusion. With the passing of the Act on the Elections of Members of Parliament, the Parliament indeed took the aspects of the long persistent problem into consideration and 26 1999, évi XXXIV. törvény az Európa Tanács Nemzeti Kisebbségek Védelméről szóló, Strasbourg, 1995. február 1-jén kelt Keretegyezményének kihirdetéséről, 64 15. cikk. 27 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, Adopted by General Assembly Resolution 47/135 of 18 December 1992. 28 Commentary of the working group on minorities to the United Nations Declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities, E/CN.4/Sub.2/AC.5/2005/2. 35. 29 www.osce.org/hu/hcnm/30333 (5 March 2014).

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regulated the issue of representation accordingly. This came to pass even though the new Fundamental Law does not incorporate the passage that was part of the former Constitution; namely, that nationalities had the right to representation. According to current legislation,30 national minority lists may be drawn up by national self-governments. Drawing up any national minority list shall be subject to recommendation by at least 1% of voters on the electoral register as national minority voters but no more than one thousand and five hundred recommendations. A national minority list, which shall register at least three candidates, may include candidates who are on the electoral register as voters of the particular national minority. It is also worth noting that two or more national minority selfgovernments may not draw up a joint national minority list; only those registered as having the same nationality may vote for the given minority list. If minority lists reach one-fourth of the number of votes31 required for acquiring a mandate on the national lists, they become eligible for the so-called preferential mandates. Any national minority which drew up a national minority list but failed to win a mandate through such list shall be represented by its national minority spokesperson in the Parliament, who shall be the candidate ranked first on the national minority list.32 Nevertheless, the spokesperson does not have a right to vote in the Parliament. First of all, I shall examine the process how citizens are recorded on the minority electoral registers. The contradiction lies partly in the wording of Article XXIX paragraph 1 of the Fundamental Law which stipulates that every citizen belonging to a nationality or ethnic group shall have the right to freely declare and maintain his or her identity, however, in practice this actually means the choice of national or ethnic affiliation. However, this may give rise to many forms of abuse – e.g. in the forming of national self-governments or in the course of granting subsidies – since no citizen shall be restricted in their choice of the nationalities they identify themselves with or in freely changing their previously ‘declared’ affiliation.33 As a result, those who do not actually belong to the nationality in question can enrol in the electoral register of such nationality. In connection with the regualtion of national minority lists it is worth emphasizing, that the positive discrimination rules34 adopted (for instance relating to preferencial mandates) for the purposes of minority representation seemingly infringement the principle 30 Section 9, Subsection 2 of Section 12, Subsection 3 of Section 14, Paras. d)-e) of Section 16, Section 18, Subsection 3 of Section 20 of Act on the Elections of Members of Parliament. 31 Also worth noting that in case a minority list – excessing the required votes for the preferential mandates – receives the number of votes that would be enough to gain mandates from a national list, it can obtain further seats. 32 The institution of the spokesperson was established beside that of preferential mandates. It secures a parliamentary seat for nationalities, which, although having drawn up a list, could not even gain a preferential mandate. 33 See more in G. Kurunczi and Á. Varga, ‘Identitásválasztás kontra identitásvállalás’, in A. Pogácsás and P. Szilágyi (Eds.), TehetségPONT 2011. PPKE Jog- és Államtudományi Kar, 2011, Budapest, pp. 193-203. 34 This representation is unambiguously a mean of minority positive discrimnation.

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Gábor Kurunczi of equal suffrage,35 at the same time, such constitutional values can only be enforced through the self-restriction of the majority. It is important for those rules which differ from universal principles to be based on consensus.36 According to Zoltán Szente, such a form of representation may be incompatible with the principle of universal suffrage and it is questionable, why nationality should be the criterion for gaining representation in the legislation.37 Based on the above considerations, in old democracies minority representation tends to be ensured through party lists.38 In Hungary, minorty voters have two votes just as other voters, however they cannot vote for a party list if the given minority draws up a minority list. Therefore, they can only express their political preferences by voting for one candidate in any single-member district. It is important to emphasize that the minorty list can achieve a preferencial mandate if it receives 0.27% of the total number votes eligible for the national list according to the Act XXXVI of 2013 on Electoral Procedure.39 We cannot forecast the number of votes that will be necessary to acquire a preferential mandate in the elections of members of Parliament in 2014. Nevertheless, it may be safely stated that more than 10,000 votes will be required for acquiring a preferential minority mandate.40 In connection with this, it is important to underline that 10,000 votes assume an unrealistically low electoral activity (altogether, these votes would amount to 3,720,000 national list votes, while regional lists received 5,132,000 votes in the elections of members of Parliament in 2010).41 Considering the data gathered from the 2010 minority elections and the 2011 census (see data listed below), it is highly probable that only the largest minorites stand a chance in winning preferential minority mandates. Seven minorites have less than eight thousand members, so even if all

35 According to Decision 809/B 1998. of the Constitutional Court, the constitutional principle of equal suffrage requires the fulfillment of two conditions by the lawmaker: On the one hand, suffrage has to be equivalent for the voters. On the other hand, votes should be similar in respect of the election of candidates. According to Decision 3/1991 (II. 7) of Constitutional Court the political will of citizens is represented in an indirect way which results in disproportion. 36 Dezső, 1998, p. 183. It is important to note that in accordance with the 1040/B 1999 decision of the Constitutional Court the Parliament can pass special rules regarding the parlamentary threshold for minority parties which are more favorable to them. Furthermore, the Constitutional Court states in Decision 35/2012 (VI.10) that representation is a necessary condition for national and ethnical minorities to act as constituent elements of the state. 37 Szente, 2010, p. 96. 38 Szente, 2010, p. 96. 39 Considering that ninety-three Members of Parliament shall be elected from national lists, 1% of votes on lists (including compensational votes) are required for winning a vote, a quarter of which must be obtained from the minority list. 40 The average of valid votes (approximately 5,179,236 votes) is based on the elections held since the political change. Considering the mandate count and compensation part of Act XXXVI of 2013 on Electoral Procedure the necessary number of votes for the preferential mandate may be estimated to amount to roughly 20,884 votes. 41 In connection with this it is worth noting that there will not be a validity threshold for the election in 2014, so it may bring a much lower participation rate.

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On the Issue of the Representation of Nationalities in the Parliament

members with suffrage requested registration as minority voters, they could not cast the votes necessary for achieving the minority quota.42 This means that the votes cast for a list by minority voters will count less.43 A further problem is that those voters who registered as a minority voter believe that their minority organisation is in a position to win a preferential mandate due to the number of members. However, if the number of voters requesting registration44 is not substantial enough (as demonstrated by the two tables below), their votes eligible for lists will not be counted, while at the same time, they cannot decide to vote for the national list and support a party instead.45

Table 29.1 The proportion of voters registered in the minority register on occasion of the minorites’ elections in 2010.46 Roma

German

Slovak

Croatian

Romanian

Ruthenian

Polish

133 492 46 629

12 282

11 571

5 277

4 228

3 052

Serbian Armenian

Greek

Bulgarian

Ukrainian

Slovenian

All

2 432

2 267

2 088

1 338

1 025

228 038

2 357

Table 29.2 According to the census in 2011.47 Roma

German

Slovak

Croatian

Romanian

Ruthenian

Polish

315 853 185 696

35 208

26 774

35 641

3 882

7 001

Serbian Armenian

Greek

Bulgarian

Ukrainian

Slovenian

All

10 038

4 642

6 272

7 396

2 820

644 524

3 571

42 See in detail: Magicz, 2013, p. 96. 43 It could be said that these new rules ensure the election of minority spokespersons and not the election of Members of Parliament. 44 By 4 March 2014, the local election officies registrated 26,896 minority voters. Moreover, 15,790 voters signed that they would like to vote on their minority list in the election of Members of Parliament. 45 It is worth noting that the Hungarian Gipsy Party (MCP) announced that it shall run for election at the end of November 2013. With due consideration to the fact that the MCP will be eligible to draw up a rival list to the national party lists (in case it fulfills the necessary conditions for drawing up a national list), the question arises, whether persons belonging to the Roma nationals may, besides the minority list drawn up by the National Roma Self-Government, cast their votes for the national lista as well, without having to choose between their party preferences and their minority affiliation. 46 www.valasztasirendszer.hu/?p=1940340 (November 26, 2013). 47 www.ksh.hu/nepszamlalas/tablak_demografia, (November 26, 2013).

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According to the Constitutional Court, when voters cast their votes for one part list, they take the risk that the party supported will not receive enough votes to enter the Parliament and become a parliamentary party.48 In my opinion, the constitutional issue is not the same when a minority voter votes for a minorty list in the knowledge that her the vote will not count, as when a party list does not receive enough votes, i.e. electoral threshold set forth in the law is not crossed. The significant difference is that parties with national lists have a theoretical possibility of winning a mandate. It is concievable that these parties receive such an increased support from voters that their party list can cross the electoral threshold. By contrast, only the the members of minority organisations can request registration as minority voters in the minority register. The number of potential voters of minority organisations is given, it cannot increase.49 According to Act XXXVI of 2013 on Electoral Procedure if any national minorty that drew up a national minority list failed to win a mandate, the given minority shall be represented by its national minority spokesperson in the Parliament. In accordance with Act XXXVI of 2012 on the Parliament, the national minority spokesperson does not possess the most important rights of other Members of Parliament, e.g. the spokesperson does not have the right to vote in a session of the Parliament. The spokesperson is allowed to make a speech in a plenary session if – according to the Committee of the whole House – the subject is related to the minorites. Furthermore, the spokeperson cannot be a member of any of the standing committees, but is only granted consultation rights.50 The spokespersons ensure minority representation in the Parliament though their role which is not equivalent to that of a traditional Member of Parliament.51 Hence, there is a risk that the votes of minority voters will only be of half value. Though spokespersons have certain entitlements (for instance, right to vote in the Minority Committee, right of immunity), during the legislative procedure the right to vote is not available and limited to making a speech. It is important to emphasize that the main goal of minority representation is the nationwide representation of the minority interest and opinion. As I mentioned earlier, minority representation is typical in the system of bicameral parliaments. If it appears in a unicameral parliament, it is essential that this representation remain unburdened by political charge. Of course, nowadays political diversification is present in the bigger national self-goverments of national minorities (primarily in the roma minority) as well. Nevertheless, the drawing up of a national minority list and awarding preferential minority mandates cannot have a political nature, since the Members of Parliament obtaining a mandate from the minority list should represent the interest of the minority in question. At the same time, several issues are discussed by the Parliament which are unrelated to 48 49 50 51

Decision 3/991 (II. 7) of the Constitutional Court. In this case supported party means minortity lists as well. Magicz, 2013, p. 96. Section 58 of the Act XXXVI of 2012 on Parliament. Magicz, 2013, p. 96.

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the minorites. Therefore, there is a danger that following the election of minority Members of Parliament, such representatives will join a political side and work on a political basis, and not in the primary interest of minorites.52 This is confirmed by the fact, that minority parliamentarians have the same entitlements as other Members of Parliament, which means that by virtue of their free mandate – disconnected from the given minorities’ interest – they can carry out their activities on purely political grounds. It is also woth noting that pursuant to Decision 27/1998 (VI. 16) of the Constitutional Court, there shall be no discrimination between the Members of Parliament on the basis of how they gained the mandates, therefore, the activity of those parliamentarians who won a preferential mandate cannot be constitutionally objected to. In connection with this it is worth highlighting an example which is in the extreme, yet interesting from a political point of view. This example shows how minority Members of Parliament can be political committed to a particular party. According to Act XXXVI of 2013 on Electoral Procedure the preferential mandate reduces the mandates obtainable from the national list. In order to provide a vivid example let us assume that only one minority wins a preferential mandate, while the remaining 198 mandates are divided evenly between the two political sides, (assuming a political coalition between the parties located on the two opposing sides of the political spectrum).53 As a result, in such an extreme case, the delegate becoming a Member of Parliament by prefential mandate, will decide upon the formation of the government.54

29.5

Possible Solutions

Before considering the possible solutions, it is worth examining whether there is a constitutional possibility for the minority voter to cast her vote on three representatives (elected in single-member constituencies, from a party list or a national minority list), while a nonminority voter could only support two representatives in the elections.55 Decision 22/2005 (VI. 17) of the Constitutional Court stated that

52 According to H/13253 suggestion on parliamentary law Section 1 (3) Para. c) point those Members of Parliament have to be considered belonging to one party whom joining request was accepted by the faction excluding the minority and independent member of the Parliament. 53 It is important to stress that owing to the predominance of the majority party in the new election system, equality is almost impossible. 54 From a contitutional perspective it is not necessarily objectionable, but from a political viewpoint this could result in a political fight between minority self-goverments for joining one political wing with the member of the parliament who won the preferential mandate. 55 See also the decision of the Constitutional Court of Slovenia (3032/2006, announcment of the Parliamentary Comissioner of National and Ethnic Rights), http://epa.oszk.hu/01200/01259/00028/pdf/belivek_46-49.pdf (November 26, 2013).

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the principle of ‘one person – one vote’ created the basis of the self-government system of the members of the political community, implementing the right to equal participation in democratic procedures. […] In the view of the Constitutional Court, this criterion is absolute: In this way, the enforcement of the principle of ‘one person – one vote’ – stemming from the Fundamental Law – may not be restricted for any grounds. According to the practice of the Constitutional Court, the state can only restrict a fundamental right, if another fundamental right, the protection of freedom or the safeguard of another constitutional value cannot be reached through other means, i.e. the restriction is absolutely necessary to achieve the legitimate purpose. It must be underlined that under the procedure regarding the preferential acquisition of minority mandates the principle of ‘one person – one vote’ also prevails. This is because in case the national voter would have a two-list vote this would be absolutely injurious to the principle of equal vote. Due to the above, it may be stated, that the exclusion of minority voters’ multiple vote can be accepted as a legitimate purpose for restricting fundamental rights. However, for the constitutionality of the restriction of a fundamental right in itself it is not enough, that it is applied in the interest of a fundamental right, the protection of freedom or any other constitutional purpose. The restriction has to meet the criteria of proportionality, i.e. it must be proportionate to the objective pursued. Moreover, the extent of harm caused to the other fundamental right must also be proportionate to the necessity of the objective pursued. In the course of the restriction the legislative power shall apply the most moderate method to reach the desired purpose. It is important to underline, that voters are entered into the minority register upon their request. According to the rules in force, they have to decide whether they want to proclaim their national identity protected by the Fundamental Law or they want to express their political opinion – which is also constitutionally protected – during the election procedure. The possibility to choose between the two alternatives renders the restriction of fundamental rights proportionate. Nevertheless, it is worth noting that even if the Act on Electoral Procedure would allow the possibility of voting for the national list for voters who vote on the minority list, the problems inherent in the current regulation ensuring the representation of minorities would not be solved. As demonstrated above, the current regulation of the Act on Electoral Procedure raises many problems. At the same time, if we do not agree with the current solution, we should ask the question: What alternative possibilities may be conceived? In this respect, three different directions should be examined. Firstly, within the confines of the current regulation, what other solutions are available? Secondly, what completely different concepts can be implemented? Last but not least, we should examine the direction that absolutely rejects minorities’ representation in the Parliament.

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In the scope of minorities’ parliamentary representation, the current legislation commits itself to a unicameral parliamentary system comprised of elected representatives. As I have mentioned above, minority voters following their registration – who may only decide to vote for the national list and express their political preference if their minority self-government does not set a minority list – are potentially faced with the fact that because the number of minorities registered does not suffice, they cannot elect full representatives to the Parliament. This problem could be solved if national voters still had the possibility on the day of the elections to choose to express their political preference instead of representing their national identity. In my view this could be implemented in two possible ways. One of the solutions could be that when the minority voters receive the ballot papers with the list of single candidates, they would also get a ballot paper containing all parties on the national list as well as the national voters’ respective minority lists.56 This method would not increase the costs of the election – since the same amount of ballot papers would be needed –, but it would nevertheless ensure the possibility for the minority voters to decide, even at the time of entering the polling station, to cast their vote for a minority or a political list. However, this possibility may easily injure the principle of the secrecy of voting. Namely, in polling districts where there is only one voter who avows herself to be a member of a minority – and she is the only person belonging to that exact minority in the polling district – if she did not vote on the national minority list, the polling station committee would know her political preference. This may amount to an infringement of the principle of the secrecy of voting. Therefore, a more efficient solution would be if minority voters could decide even on the day of election – according to the Act on Electoral Procedure, i.e. the 15th day preceding the elections –, that instead of the previously registered minority identity they would choose to express their political preference. For that very reason minority voters who had previously registered as voters of a national minority should have the possibility to request on election day their deletion from the national minority’s register and their concurrent entry into the national electoral registry in order to vote for the national list. This method would not be completely new to Hungarian law, since earlier, all voters had the possibility – for e.g. those not entered in a polling district by mistake – to request their entry into the register even on the day of election. On the one hand, this would result in only a minimal increase of costs – since two different types of ballot papers would be produced for the national voters –, on the other hand, the above mentioned problem could be solved without breaching the principles of voting. At the same time it must be pointed out that applying this procedure would not help solve the problem, that – in case the national minority list does not receive the number of votes

56 It is important to underline, that only his or her own nationality’s minority list would be on the subtended ballot paper.

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necessary for the preferential quota – a national minority’s spokesperson without a voting right is ‘delegated’ to the Parliament by election.57 Ensuring the national minorities’ representation in the Parliament – as demonstrated by the national examples – is not only possible in the currently stipulated framework of the Act of Electoral Procedure. The mutual interpretation of election and representation suggests that these are two coherent notions presupposing each other, namely, that representation can only be achieved through election. However, not every election results in representation and vica versa, election is not a necessary condition for achieving representation (e.g. representation may be achieved through appointment, delegation or even ex officio).58 The definition of representation and its content differ depending on the era and from country to country. From a theoretical perspective, where the representative acts on behalf of and in the name of her mandator, the representative acts as a delegate or ‘agent’. Another apprach claims that representation comes into existence through elected representatives (this is the classical form of representation). Last but not least, there is a theory according to which the aim of representation is to represent the features of certain groups in a statistically sound manner (this is the basis of proportionate representation).59 According to Péter Tölgyessy in the case of interest organizations it should suffice to ensure them the right to express their opinions in the Parliament.60 Several decisions of the Constitutional Court declared that the constitutional condition of practicing state power is the existence of democratic legitimacy. In a system built on popular representation the branches of powers can be self-legitimating, in case they are established through direct election or through the contribution of another branch of power – yet, the power has to originate from the sovereign population. As such, democratic legitimacy is given even if state power is exercised by bodies and people elected or appointed by directly elected organizations. Democratic legitimacy cannot be called into question in case the chain of elections and appointments between the voters to the bodies or officials exercizing state power is continuous.61 On this basis, Decision 34/2005 (IX.29) of the Constitutional Court declared the statute adopted in 2005 – but not signed by the President of Hungary – unconstitutional, referring to the lack of democratic legitimacy. This statute would have enabled elected members of local minority self-governments – in case of

57 An other obstacle of this solution could be that minority self-governments are given campaign support in proportion with the number of voters registered. Although, in case if national voters can decide to choose voting on the national list on the election day, the minority self-governments could easily turn against the system of support by creating fictive registrations. 58 Dezső, 1998, p. 18. 59 The certain views can be seen in Dezső, 1998, p. 19. 60 P. Tölgyessy, ‘Országgyűlés és választójog’ (Parliament and suffrage), in G. Kilényi (Ed.), Alkotmányjogi Füzetek 4. (Parliament, suffrage), EXPRINT, Pécs, 1989, p. 28. 61 See further: 38/1993 (VI. 11) decision of the Constitutional Court.

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achieving a determined number of votes and making a statement – to become members of the local election commission.62 The national spokesperson elected according to the rules of the Act on Electoral Procedure has a similar function in the Parliament as the national minority spokesperson had in the local-government according to the former regulation.63 The powers of the spokesperson were exercized by the president of the minority self-government between the period of 25 November 2005 and 1 January 2012. Thus, the minority spokesperson could participate in the local-government’s decision-making procedure with consultation rights even though she did not receive a mandate in the local-government elections. According to the draft of the new statute on national minorities submitted for social consultation on 9 November 2011, the national minority spokesperson would have been elected by the national minority self-government (then delegated to the Parliament) by secret ballot and qualified majority. Under the reconciliation of the motion of the statute it was not clear whether the spokesperson will have full rights. The motion of the statute adopted by the Parliament connected the spokesperson’s mandate – who only possessed certain rights of representation – to the votes cast for the national minority list instead of applying delegation. In my view, however, the current system – due to the fact that the national minority spokesperson is elected in the framework of the election of Members of Parliament – raises several problems of constitutionality. On the one hand, it is important to underline that there is no validity threshold for the election of a national minority spokesperson. This rule seems to correspond with the fact that a candidate of a single-member constituency also acquires a mandate with the majority of the valid votes cast, which may even be a single vote. An important difference is that while in case of single-member constituencies there is no real danger that only an insubstantial number of voters will participate in the elections, in the case of national minority spokespersons it is to be feared that as compared to Members of Parliament they may be elected with a relatively low number of votes.64 Entry into the minority register requires submitting an application, which is a filter that can have a deterrent effect, since minority voters are expelled from voting for party lists based on the Act on Electoral Procedure.

62 G. Kilényi, ‘A nemzeti és etnikai kisebbségek jogai’ (The national and ethnical minorities’ rigths), in B. Hajas and G. Kilényi (Eds.), Fejezetek az alkotmányjog köréből, Rejtjel Kiadó, Budapest, 2005. p. 295. 63 See further: 1990. LXV, Act of the Local-governments, Section 12 § (7). 64 It is important to underline, that according to the current regulation, a situtation can easily occur, where a national spokesperson – even if elected with a minimal number (or for instance only with only one vote) of votes – is representing a nationality in the Parliament, that has a national minority self-government – that was elected by a greater number of voters related to obtaining preferential quota, this way having greater legitimacy –, even if that minority list was set by the national minority self-government.

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As a substantive point it should be mentioned, that according to the Act on Electoral Procedure in order to acquire the mandate of spokesperson, the national minority selfgovernments must set up a list competing with party lists. Minority self-governments operate on the basis of different principles than parties, for instance, they are not founded on the basis of the freedom of assembly and do not have a registered membership. Another important difference is that parties use a separate part of their income for election campaigns, while the national minority self-governments’ financial resources are employed for primarily cultural aims. In the majority of minority self-governments, participation in the elections has no real ‘stake’, because the list can only yield a mandate for a spokesperson, who, in turn, may be elected by a single vote. Based on the above, I believe that it would be more efficient to solve the parliamentary representation of minorities that did not achieve the number of votes necessary for acquiring a preferential mandate through the delegation of a representative delegated by the national minority self-government, instead of insisting on the minority spokesperson elected in some cases by only a handful of voters.65 With respect to the delegation of the minority spokesperson it is worth recalling Decision 27/1998 (VI.16) of the Constitutional Court which declared that the characteristics of a free mandate are expressed in the principle, according to which the representatives’ legal position is equal – as stipulated by the Act on Elections –, namely, they have equal rights and obligations. In view of the rights necessary to fulfill the tasks of representatives, distinctions cannot be made on the basis of how representatives acquired their mandates. In the course of the elaboration of the Fundamental Law the possibility of a bicameral parliament emerged, yet the constitution finally retained the unicameral system. This had significant repercussions for the parliamentary representation of national minorities, since several states resolved such representation in the framework of a corporative second chamber. In contrast to our neighbouring countries, a varied and relatively small number of national minorities live in Hungary spread throughout the country’s territory. According to Márta Dezső, under such conditions the optimal solution would be a second chamber for the proper representation of minorities. This way, minorities could elect their own representatives (1-1) in the Senate,66 solving all the problems related to their parliamentary representation (e.g. the question of the spokesperson without a voting right or losing minority votes for lack of a sufficient number of registrations, etc.). At the same time, Dezső claims, a second chamber would also be more efficient in ensuring the parliamentary representation of Hungarians living abroad, while providing a suitable forum for interestgroups to participate in the legislative procedure. 65 This regulation could be used if the delegation of the spokesperson would occur if under the national minorities’ election the certain minority list would not reach the number of votes needed for obtaining a preferential mandate. In this case this solution could be combined with the solution that I mentioned earlier. 66 Dezső, 1998, p. 118.

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Finally, it is worth mentioning a third possible solution, according to which there is no need for the parliamentary representation of national minorities, since the system of minority self-governments already solved the problem of representation. At the same time, according to the consistent practice of the Constitutional Court, the parliamentary representation of minorities must be ensured.

29.6

Summary

In every country – including Hungary –, where minorities coexist with the majority population, the implementation of national minorities’ parliamentary representation and the regulation of suffrage appears as a central question. There are several methods for ensuring the parliamentary representation of minorities and there is no one suitable and efficient method that could be chosen above the other unequivocally. The crucial aim of any system must be to ensure the most comprehensive representation possible. Considering the elements of the current system, the provisions on minority representatives in the Act of Electoral Procedure much rather served the election of parliamentary spokespersons than the veritable political representation of minorities. The operability of the system created by the Act of Electoral Procedure will be tested in the 2014 elections, but until that time, it is already worth considering alternative ways forms of ensuring the representation of minorities.

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András Kovács*

30.1

The European Union Law-Related Adjudicating Activities of the Highest Instance Judicial Body

Since the early stages of European integration, national judges in the Member States have been considered as judges who also had to deal with Community law issues.1 In its judgement delivered in the Van Gend & Loos case, the European Court of Justice declared the direct effect of one of the articles of the EEC Treaty, thus, enabling European citizens to directly request the enforcement of Community law. At the same time, the European Court of Justice obliged the national courts to respect the principle of direct effect and to protect the individual rights emanating therefrom.2 The Community legal order was institutionalised as a sui generis legal order through the creation of the preliminary ruling procedure, the elaboration of the principle of direct effect and the recognition of the supremacy of Community law by the European Court of Justice in the Costa v. ENEL case, in addition, through establishing a unique relationship between the European Court of Justice and the national courts which eliminated the risk factors that could have hindered the application of non-national law by national judges. Over time, three main types of questions have been raised by the national courts that had made a reference for a preliminary ruling, these questions have so far concerned: i) the correct interpretation of the provisions of Community law, ii) the direct effect of the provisions of Community law and iii) the compatibility of national legislation with Community law.3 In this relationship, the Court of Justice of

* 1 2

3

Head of Panel at the Administrative and Labour Department, Curia of Hungary, Judicial Advisor in European law. E-mail: [email protected]. See K. Lenaerts, ‘The Rule of Law and the Coherence of the Judicial System of the European Union’, 44 Common Market Law Review (2007), pp. 1625-1659. M. Cremona, ‘The Judgement – Framing the Argument’, in Court of Justice of the European Union: 50th Anniversary of the Judgement in Van Gend & Loos (1963-2013), Conference Proceedings, Luxembourg, 13th May 2013, pp. 26-27. B. Witte, ‘The Impact of Van Gend & Loos on Judicial Protection at European and National Level: Three Types of Preliminary Questions’, in Court of Justice of the European Union: 50th Anniversary of the Judgement in Van Gend & Loos (1963-2013), Conference Proceedings, Luxembourg, 13th May 2013, p. 95.

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the European Union gives an interpretation of the applicable provisions of Community law, but ultimately it is the national court, acting as an enforcer of Community law, that has to apply them in concrete cases, the national court decision then ensures that the parties have a greater readiness to comply with the directly effective provisions of Community law.4 The judicial systems and the high courts of the ten Member States that joined the European Union ten years ago were forced to find their own positions and roles within the framework of a supranational legal order which has been in place and has been developed for several decades. The Supreme Court and the entire judiciary of Hungary started to prepare for the country’s accession to the European Union as early as 1999, i.e. five years prior to the accession. As part of the preparations, the Hungarian Judicial Academy – which later became an independent educational institution – was established and foreign language courses were organised and provided free of charge for the members of the judiciary. Moreover, national trainers were recruited to ensure that each Hungarian court has at least one judge thoroughly trained in EU law and in foreign languages, to whom the peers can turn when they need advice in EU law matters.5 The network of national trainers constituted the institutional basis for the creation of the Service of Judicial Advisors in European Law in 2009. Judicial advisors in European law provide assistance not only in EU law-related issues, but also in European law-related matters, i.e. in cases touching upon the application of the European Convention on Human Rights and the interpretation of the case-law of the European Court of Human Rights. Judicial advisors insure a constant exchange of information and experience among themselves, in addition, the National Council for the Judiciary has recently reorganised the format of their cooperation, hence, the new Network of Judicial Advisors in European Law also includes coordinators specialised in different fields of law in order to guarantee a more enhanced coordination over and a stronger cooperation between judicial advisors, this new network is expected to better contribute to the uniform interpretation of EU law.6 The Curia of Hungary strengthens the above system by its own means, thus, the International Relations and European Legal Office of the Curia prepares the official travels and study visits abroad of the Curia’s justices and it monthly publishes a newsletter in which it disseminates information, in a brief and efficient manner, related to the case-law of the Court of Justice of the European Union and the European Court of Human Rights, as well as to the cases of the Curia that concern EU law or the European Convention on

4 5

6

Witte, supra note 3, p. 15. See E. Banicz, ‘Preparation of Hungarian judges for European Union related – tasks and functions, RomanianHungarian Legal Review’ (A magyar bírák felkészítése az uniós feladatok ellátására, Romániai Magyar Jogtudományi Közlöny), http://rmjk.adatbank.transindex.ro/pdf/04.Banicz.pdf, 22nd March 2014. See Order of the President of the National Office for the Judiciary n° 7/2013 (VII. 22) on the Regulation of the Network of Judicial Advisors in European Law.

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Human Rights. The Curia has also been given the task to analyse the jurisprudence of the Hungarian courts, the so-called jurisprudence-analysing working groups are responsible for conducting examinations in specific fields of law, one of these working groups examined the preliminary ruling procedures before the Court of Justice of the European Union and published its summarised opinion on them7 in March 2014. The other working groups examining different fields of law also take into account the development of European law.8

30.2

Role of the Preliminary Ruling Procedures

Based on the above preparation process, the institutional background and the other aforementioned efforts, a successful cooperation has been established between the Hungarian judicial system and the various European institutions, which is underlined, in particular, by the fact that the Hungarian courts have been relatively keen on initiating preliminary ruling procedures. According to the summarised opinion of the jurisprudence-analysing working group on preliminary ruling procedures and based on data gathered from 2004 to 2012, the number of preliminary ruling procedures initiated by Hungarian courts is exceptionally high compared to the number of those initiated by the courts of the other Member States that joined the EU ten years ago, even in comparison with the Czech Republic which is of a similar size as Hungary or in comparison with Poland which is much larger than Hungary.9 It can be stated that in the Member States in which the number of preliminary references is relatively high, national courts have a manifestly open-minded attitude towards EU law, and judges are not reluctant to apply it. This openness can be particularly felt when the proportion of preliminary references made by lower instance courts is relatively high. In such cases, opposed to the courts against whose decisions there is no judicial remedy under national law, as defined in Article 267, paragraph (3) of the Treaty on the Functioning of the European Union, the lower instance courts as referring courts are not under the obligation to make a reference, and they can decide on a discretionary basis to turn to the Court of Justice of the European Union to request its interpretation.10 The higher the number of preliminary references made by lower instance courts – 85% of the references are made by lower instance courts in Hungary –, the more likely it is that EU law is correctly applied within the judiciary, because individual court cases do not need 7

Summarised opinion of the jurisprudence-analysing working group on preliminary ruling procedures before the Court of Justice of the European Union, www.lb.hu/sites/default/files/joggyak/az_europai_unio_ joganak_alkalmazasa.pdf, 20th March 2014. 8 Summarised opinions of the jurisprudence-analysing working groups of the Curia of Hungary. www.lb.hu/hu/joggyakorlat-elemzo-csoportok-osszefoglaloi, 21st March 2014. 9 Preliminary Ruling Procedures Opinion, note 7, p. 26. 10 Preliminary Ruling Procedures Opinion, note 7, p. 27.

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to be brought to the highest instance judicial body, being obliged to make a preliminary reference, to have their EU law aspects interpreted by the Court of Justice of the European Union, since these aspects can be examined by the Court of Justice of the European Union already upon the references of lower instance courts.11 In administrative court cases, preliminary references have so far concerned financial issues (taxes, customs and excise duties) and other administrative matters (including state aid, consumer protection, immigration and asylum, public procurement, traffic and competition cases) in equal proportions. To date, the Court of Justice of the European Union has dealt with fifteen Hungarian preliminary references in the field of financial law and with sixteen Hungarian preliminary references concerning other administrative matters, eleven similar cases – including five financial law-related cases and six cases related to other matters – are still pending before the Court of Justice of the European Union. The Curia is somewhat more active in making references to the Court of Justice of the European Union in financial-law related legal disputes, however, the number of references from the Curia in other administrative law cases has also increased.

30.3

The EU Law Aspects of Tax and Financial Law Cases

Given that EU harmonisation is less accomplished and mainly carried out through directives in the field of taxation, the direct application of the relevant pieces of EU legislation is considered to be of lesser importance. This is particularly true in the field of direct taxes (personal income tax, corporate tax). On the other hand, the Curia – in the field of indirect, value added taxes – frequently invokes Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and its interpretation given by the caselaw of the Court of Justice of the European Union. In tax cases, a number of important court decisions have been affected by EU law. The Mahagében and P. Dávid cases,12 as well as the similar Tóth case13 have significantly influenced and modified the decade-long legal practice of the tax authorities and the courts in respect of the enforcement of the taxpayer’s right to value added tax deduction.14 In its judgement rendered on 21 June 2012 in the Mahagében and P. Dávid joined cases, the Court of Justice of the European Union stated that the right to deduct can be 11 Preliminary Ruling Procedures Opinion, note 7, p. 28. 12 Joined Cases C-80/11 and C-142/11. Mahagében Kft. v. Nemzeti Adó- és Vámhivatal Dél-dunántúli Regionális Adó Főigazgatósága (C-80/11) and Péter Dávid v. Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága (C-142/11) [not yet published in ECR]. 13 Case C-324/11 Gábor Tóth v. Nemzeti Adó- és Vámhivatal Észak-magyarországi Regionális Adó Főigazgatósága [not yet published in ECR]. 14 See the judgement of the Court of Justice of the European Union in Joined Cases C-80/11 and C-142/11, European Law, No. 5, 2012, pp. 36-42. (Az Európai Unió Bíróságának a C-80/11 and C-142/11 sz. egyesített ügyekben 2012. június 21-én hozott ítélete, Európai Jog, 2012/5. szám, 36-42. old.).

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refused only where it is established, on the basis of objective evidence gathered by the tax authority, that the taxable person concerned knew, or ought to have known, that the transaction relied on as a basis for the right to deduct was connected with tax fraud. In such cases, there is no strict liability and the tax authority has no general obligation to investigate. In its judgement delivered on 6 September 2012 in the Tóth case, the Court of Justice of the European Union also found that the right to deduct should not be affected by the fact that the individual business operator’s license of the issuer of the invoice had been withdrawn before he provided the services in question or issued the invoice for them or by the fact that the employees of the issuer of the invoice had worked in the black economy, and the latter fact was unknown and could not be known to the addressee of the invoice, since he had no obligation to verify the legal status of the employees of the issuer of the invoice. The Supreme Court made a reference for a preliminary ruling in the above case because the Hungarian tax law-related case-law has established a system of liability as regards the exercise of the right of deduction in which the addressee of the invoice could be held liable for certain irregularities found at the issuer of the invoice. The addressee of the invoice was disadvantaged for a lack of care when he did not verify the legal status of the employees of the issuer of the invoice, however, such obligation to verify was not clearly and expressly entrusted to him. The Court of Justice of the European Union set more stringent requirements for the rejectability of the right of deduction when it stated that the tax authority is under the obligation to prove that the addressee of the invoice participated in a transaction involving fraudulent tax evasion. Hence, the tax authority is not entitled to reject the taxable person’s right of deduction solely on the basis of the discovery of irregularities at the issuer of the invoice. The tax authority also has to prove that the addressee of the invoice intentionally sought to evade his value added tax payment obligation. The judgement of the Court of Justice of the European Union had an impact not only on the jurisprudence of the Curia, but on the case-law of the lower instance courts as well.15 The judgement of the Court of Justice of the European Union in the Alakor Gabonatermelő és Forgalmazó Kft. case – rendered as a result of a reference for a preliminary ruling made by the Supreme Court – also contains important findings.16 The case raised tax issues in the following topics: non-repayment of the entirety of value added tax unduly paid, national legislation precluding the repayment of value added tax because it has been passed

15 See T. Gyekiczky, ‘The Judgement of the European Court in Hungarian Tax Cases on the Rejectability of the Right of Deduction by Tax Authorities’, No. 2, case notes (2013), pp. 48-61 (Az Európai Bíróság ítélete magyar adóügyekben. A hozzáadottérték-adó levonásához való jog adóhatósági megtagadásáról, 2 Jogesetek Magyarázata (2013) szám, 48-61. old.). 16 Case C-191/12 Alakor Gabonatermelő és Forgalmazó Kft. v. Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága [not yet published in ECR].

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on to a third party, and compensation in the form of aid covering a fraction of the nondeductible value added tax.

30.4

The EU Law Aspects of Other Administrative Cases

Among the other types of administrative cases, the Shomodi case needs to be mentioned as one of the legal disputes in which some of Hungary’s neighbouring countries were involved. In the above case, the dispute arose between the Hungarian police authorities and certain Ukrainian nationals wishing to enter the country on the basis of the applicable rules on local border traffic, established by a bilateral international treaty concluded between Hungary and Ukraine. This dispute was resolved in favour of the Ukrainian nationals. In its judgement delivered on 21 March 2013, the Court of Justice of the European Union found that the limitation on the stay in the Schengen area of foreign nationals who are exempt from visa requirements for a period of three months within a given half year should not be applied in respect of the beneficiaries of the local border traffic regime.17 In a similarly noteworthy competition case, the Court of Justice of the European Union ruled that agreements whereby car insurance companies come to bilateral arrangements with car repair shops concerning the hourly charge to be paid by the insurance company for repairs to vehicles insured by it can be considered to be a restriction of competition, where, following a concrete and individual examination of the wording and aim of those agreements and of the economic and legal context of which they form a part, it is apparent that they are, by their very nature, injurious to the proper functioning of normal competition on one of the two markets concerned.18 As regards these other administrative cases, there are numerous fields of law in which the Curia is less likely to make a reference for a preliminary ruling, but which still require the application of EU law on a daily basis. These fields include, among others, environmental protection matters and online gambling cases. In environmental cases, the interpretation of the definition of waste is the most common problem, while in online gambling cases, the interpretation of the freedom to provide services poses difficulties, like in other EU Member States. The lack of preliminary references can be explained by the fact that the Court of Justice of the European Union has a well-established case-law in respect of the definition of waste and the advertisement of online gambling services. It should be noted that the above fields of law constantly require the interpretation of EU law by the national

17 Case C-254/11 Szabolcs-Szatmár-Bereg Megyei Rendőrkapitányság Záhonyi Határrendészeti Kirendeltsége v. Oskar Shomodi [not yet published in ECR]. 18 Case C-32/11 Allianz Hungária Biztosító Zrt and Others v. Gazdasági Versenyhivatal [not yet published in ECR].

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courts of the Member States, however, the Hungarian judiciary is relatively reluctant to turn to the Court of Justice of the European Union. In 2013, the administrative panels of the Curia made two references to the Court of Justice of the European Union, the first reference concerned consumer protection measures, while the second one was related to the regulations of an energy sector. In the latter reference, the Curia requested the interpretation of the definition of the ‘party concerned’ within the meaning of EU law, since the capacity and right to bring a legal action in an administrative case essentially depends on the above definition. The interpretation to be provided by the Court of Justice of the European Union will have a significant impact on the development of administrative law in connection with this fundamental issue.19

30.5

The EU Law Aspects of Labour Law Cases

The Hungarian judiciary’s adjudication in labour law cases had been considerably influenced by EU law even before Hungary’s accession to the European Union. Prior to 2004, the Supreme Court had already taken into account for the interpretation of Hungarian labour law some of the relevant EU directives and the case-law of the Court of Justice of the European Union. These directives contained both individual and collective labour law elements. The case-law of the Court of Justice of the European Union related to the interpretation of Council Directive 2001/23/EC had, for instance, an important influence on Hungarian labour law. According to this directive, the transfer of an undertaking or business by a transferor to a new employer shall not affect employment relationships existing on the date of the transfer, since the transferor’s employment-related rights and obligations shall be automatically transferred to the new employer. The above provision has been implemented into Hungarian law by Article 85/A of Act n° XXII of 1992 on the Labour Code, and the Court of Justice of the European Union has interpreted its meaning by stating that there is a transfer within the meaning of this directive where there is a transfer of an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary. Such transfer can take place simply by a transfer of resources, and its legal consequences cannot be subject to the continued employment of former employees. The

19 Press release of the Curia of Hungary on the initiation of a preliminary ruling procedure before the Court of Justice of the European Union in the case concerned, www.lb.hu/hu/sajto/tajekoztato-kuria-elozetesdonteshozatali-eljarast-kezdemenyezo-vegzeserol-energiaugyben-az, 25th March 2014.

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transfer of businesses is consistently treated by Hungarian courts on the basis of the criteria set by the case-law of the Court of Justice of the European Union.20 The principle of equal treatment in matters of employment shall be respected. In numerous cases, the Supreme Court had to interpret the provisions of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, in doing so, it also took into consideration the relevant case-law of the Court of Justice of the European Union.21 The Supreme Court and later the Curia had to deal with issues in respect of the organisation of working time in a large number of labour law cases. First, doctors and healthcare workers brought legal actions en masse to request remuneration for their oncall time duties. In these cases, the Supreme Court referred to the well-established caselaw of the Court of Justice of the European Union according to which the sufficiently precise and unconditional provisions of a Community directive are applicable, without the need to make a reference for a preliminary ruling by the national court, to state authorities and to any organisations or bodies which are subject to the authority or control of the State or have special powers beyond those which result from the normal rules applicable to relations between individuals if the interpretation of the aforementioned provisions by the Court of Justice of the European Union is clear and unambiguous.22 Subsequently, a large number of firemen launched legal proceedings to request remuneration for their overtime work. In its decisions rendered in judicial review proceedings, the Supreme Court and the Curia found that working more than 48 hours per seven-day long periods within a six-month time frame at a municipal fire department should be considered overtime work. While dealing with altogether 27 cases related to the organisation of working time, the Supreme Court and later the Curia have taken into account not only

20 Case 24/85 Jozef Maria Antonius Spijkers v. Gebroeders Benedik Abattoir CV and Alfred Benedik en Zonen BV [1986 I-01119]; C-13/95 Ayse Süzen v. Zehnacker Gebäudereinigung GmbH Krankenhausservice [1997 I-01259]; Joined Cases C-127/96, C-229/96 and C-74/97, Francisco Hernández Vidal SA v. Prudencia Gómez Pérez, María Gómez Pérez and Contratas y Limpiezas SL (C-127/96), Friedrich Santner v. Hoechst AG (C229/96), and Mercedes Gómez Montaña v. Claro Sol SA and Red Nacional de Ferrocarriles Españoles (Renfe) (C-74/97) [1998 I-08179]; C-340/01 Carlito Abler and Others v. Sodexho MM Catering Gesellschaft mbH [2003 I-14023]; C-463/09 CLECE SA v. María Socorro Martín Valor and Ayuntamiento de Cobisa [2011 I00095]. 21 BH 2010.194; EBH 2009.2103; EBH 2009.1980; EBH 2010.2155, C-409/95 Hellmut Marschall v. Land Nordrhein-Westfalen [1997 I-06363]; C-407/98 Katarina Abrahamsson and Leif Anderson v. Elisabet Fogelqvist [2000 I-05539]. 22 C-188/1989 A. Foster and others v. British Gas plc. [1990 I-03313]; C-80/86 Criminal proceedings against Kolpinghuis Nijmegen BV [1987 03969], Joined Cases C-253/96, C-254/96, C-255/96, C-256/96, C-257/96 and C-258/96, Helmut Kampelmann and Others v. Landschaftsverband Westfalen-Lippe (C-253/96 to C256/96), Stadtwerke Witten GmbH v. Andreas Schade (C-257/96) and Klaus Haseley v. Stadtwerke Altena GmbH (C-258/96) [1997 I-06907].

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the relevant EU directives, but the case-law of the Court of Justice of the European Union as well.23 Government officials working for central administrative bodies and other state authorities in Hungary fall within the personal scope of Act n° LVIII of 2010 on the Legal Status of Government Officials. In its Decision n° 8/2011 (II.18), the Constitutional Court annulled, as of 31 May 2011 pro futuro, the earlier version of Article 8, paragraph (1) of the Government Officials Act for being unconstitutional. The above decision, however, offered some leeway for lower instance courts in respect of legal actions launched during an interim period, namely from 18 February to 31 May 2011 when several government officials were dismissed without providing reasons. The unlawfulness of such dismissals and the protection requirements of EU law were raised before the lower instance courts. As a result, the Curia initiated a preliminary reference procedure in order to request an interpretation from the Court of Justice of the European Union concerning Article 30 of the Charter of Fundamental Rights of the European Union. On one hand, Article 30 can be read as meaning that the term ‘employee’ has no universal definition in EU law, consequently national law and case-law shall be applicable even to the extent of neglecting EU protection requirements regarding some specific employment relationships, on the other hand, Article 30 can be interpreted as meaning that EU protection requirements shall be applied in every kind of employment relationship, and national authorities are given the opportunity to choose only among the available methods of implementation of EU rules. In its order delivered in Case C-332/13,24 the Court of Justice of the European Union held that it had no competence to deal with the preliminary reference made by the Curia, arguing that national rules governing the dismissal of government officials and civil servants have no EU law aspects. According to this court order, pending cases shall be adjudicated under national law. In a legal action in which the plaintiff requested the determination of his average income which served as the basis for the calculation of his pension,25 the Supreme Court, having regard inter alia to the decision of the European Court of Justice rendered in Case C102/76, concluded that the relevant pieces of Hungarian legislation which determined the plaintiff’s period of employment in Hungary and his average income as the basis for the calculation of his pension were contrary to Community law. The Supreme Court, referring to the decisions of the European Court of Justice delivered in the Costa v. ENEL and Simmenthal cases, quashed the judgement of the labour court and the decisions of the social security authorities, and obliged the defendant authority to re-open the case and determine the plaintiff’s pension without having regard to the non-compliant national rules.

23 C-52/04 Personalrat der Feuerwehr Hamburg v. Leiter der Feuerwehr Hamburg [2005 I-07111]. 24 C-332/13 Ferenc Weigl v. Nemzeti Innovációs Hivatal [not yet published in ECR]. 25 Mfv.III.10.261/2010.

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30.6

Summary

The adjudication of administrative cases by the Supreme Court and the Curia has been substantially transformed due to Hungary’s accession to the European Union. In this field, the application of EU law is required on a daily basis in almost each case, which presents a significant challenge for the Curia as regards its jurisprudence-unifying tasks. The Curia’s justices are ready to apply EU law, to make a reference for a preliminary ruling in case of difficulties that may arise during the interpretation of EU law, and to interpret Hungarian law in conformity with the relevant pieces of EU legislation and with the case-law of the Court of Justice of the European Union.

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András Osztovits*

31.1

The First Steps towards the Application of EU Law – The Special Hungarian Provisions Concerning the Preliminary Ruling 1 Procedure

Legislation concerning the reference for a preliminary ruling was initiated almost one year before Hungary’s accession to the EU. Act n° XXX of 2003 amended Act n° III of 1952 on the Code of Civil Procedure as well as Act n° XIX of 1998 on the Code of Criminal Procedure with regard to the aforementioned Community law instrument. As the most important amendment it ensured the right of appeal against court decisions making a reference for a preliminary ruling as of 1 May 2004. Moreover, newly-introduced Article 249/A of the Code of Civil Procedure stipulated that appeal may be filed against a second instance decision that dismisses a request for a reference for a preliminary ruling. Later on, under Article 340, paragraph (3) of Act n° XVII of 2005, the legislator allowed the parties to lodge an appeal also against a first-instance decision which dismisses a request for a reference for a preliminary ruling if no appeal can be lodged against the decision, like in administrative disputes regulated in Chapter XX of the Code of Civil Procedure. Although these amendments have broadened the parties’ procedural rights regarding this legal instrument, they have raised more questions than they answered. It is unclear what aim the parties’ appeal may serve: the appeal can aim to achieve that no reference for a preliminary ruling shall take place, or the parties can influence the content of the questions raised in the order, including raising new questions, or the aim of the appeal can be to stay the proceeding without affecting the reference for a preliminary ruling. Although a lot of Hungarian lawyers predicted these problems before the amendments

* 1

Judge at the Civil Department, Curia of Hungary, former Judicial Advisor in European law. E-mail: [email protected]. This chapter is based on A. Osztovits, ‘The Case Law of the Hungarian Supreme Court Regarding the Appeal against a Preliminary Ruling Reference – before and after the Case Cartesio’, in 6 Studia Iuridica Caroliensia (2011), p. 152-161.

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came into force, the new legal regulation entered into force unaltered as of 1 May 2004. (Act n° XVII of 2005 came into force as of 1 November 2005.)2 Hungarian case-law inevitably met the complex legal problem how and to what extent a national judge’s right under Article 234, paragraph (2) of the EC Treaty can be restricted by the appellate court that examines the appeal brought against the order making a reference for a preliminary ruling. The fact that before the Cartesio case the European Court of Justice did not take an unambiguous legal standpoint in this question makes it more difficult to answer this legal problem correctly. In its often cited decision rendered in Case C-146/73 Rheinmühlen/Düsseldorf without long reasoning the European Court of Justice set forth only that appeal against the order making a reference for a preliminary ruling is compatible with Community law. In the given case the European Court of Justice concluded that national judges have unrestricted power to refer matters to the European Court of Justice if they consider that a case pending before them raises questions on the interpretation of Community law provisions, or the consideration of their validity necessitating a decision on their part. The European Court of Justice held that regardless of the existence of a rule of national law whereby courts other than those of last instance are bound on points of law by the rulings of a superior court, the courts other than those of last instance remain free to refer questions to the European Court of Justice in connection with Community law regarding these points of law. If courts other than those of last instance were bound and unable to refer matters for a preliminary ruling, the jurisdiction of the European Court of Justice as well as the application of Community law at all levels of the national judicial systems would be compromised. The most important result of the European Court of Justice’s interpretation is that lower courts may depart from the interpretation of superior courts. If we further consider Court of Justice of the European Union judgements that examine what rights the parties have concerning referral for a preliminary ruling, formulating the concrete questions or amending them, we may conclude that the superior courts may amend the lower courts’ intention only under exceptional circumstances. Making manifestly ill-founded or arbitrary references may serve as such exceptional reasons. It would be contrary to the aim of the reference for a preliminary ruling as a legal instrument if lower courts could not pose their questions to Luxemburg as a result of national case-law.

2

L. Wallacher et al., ‘Az előzetes döntéshozatali eljárás koncepciója a 2003. évi XXX. törvényben’ (The Conception of the Preliminary Ruling Procedure in Act XXX of 2003), in 5 Európai Jog (2003), pp. 4-11; A. Osztovits, ‘Jogharmonizációs délibáb – megjegyzések a 2003. évi XXX. törvényhez’ (Lawharmonizational Mirage – Remarks on Act XXX of 2003) in 5 Európai Jog (2003), pp. 21-27; L. Blutman, ‘Az eljárási törvények újabb módosítása és az uniós jog’ (The New Amendments of the Procedural Law Acts and the EU Law). in 5 Európai Jog (2003), pp. 12-20.

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31.2

Case-Law of the Supreme Court and the Curia in Civil and Economic Law Cases Case-Law of the Supreme Court before the Cartesio Case

The Supreme Court examined the guiding principles of judging an appeal brought against the order requesting a preliminary ruling for the first time in order n° Pf.X.24.705/2005/2 (BH 2006.216). The order was rendered upon appeal lodged against order n° Pf.III.20.346/2004/11 of Szeged Court of Appeal which had made a reference for a preliminary ruling. The Supreme Court amended the order of the appellate court, set aside the reference for a preliminary ruling as well as the suspension of the proceedings. The Supreme Court examined the questions raised by the appellate court in a different order. First of all, it examined the fifth question which expressed the need for the interpretation of Community law, and thereby disputated the Supreme Court’s jurisdiction in the case based on Article 249/A of the Civil Procedure Code on grounds of Community law. The Supreme Court examined the European Court of Justice’s case-law in detail and held that the European Court of Justice had already answered the question in Case C-166/73 Rheinmühlen-Düsseldorf v. Einfuhr- und Vorratsstelle für Getreie und Futtermittel. It stated that in the case of a court against whose decisions brought on the merits of the case there is a judicial remedy under national law, Article 177 of the EC Treaty (currently Article 234 of the EC Treaty) does not preclude decisions of such a court by which questions are referred to the European Court of Justice for a preliminary ruling from remaining subject to the remedies normally available under national law. In this case the European Court of Justice left it to the national legislator to decide whether it provides remedy against the order making a reference for a preliminary ruling in case there is remedy against decisions brought on the merits of the case. The Supreme Court then examined whether the Court of Justice of the European Union’s interpretation was different in respect of courts whose order making a reference for a preliminary ruling is subject only to an extraordinary appeal like in the current case. The Supreme Court pointed out that the European Court of Justice made its standpoint on this question clear in Case C-99/00 Kenny Roland Lyckeskog. In that case the European Court of Justice had held that decisions of a national appellate court which can be challenged by the parties before a supreme court are not decisions of ‘a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law’ within the meaning of Article 234, paragraph (3) of the EC Treaty. The fact that examination of the merits of such appeals is subject to a prior declaration of admissibility by the Supreme Court does not deprive the parties of a judicial remedy. It therefore follows that as a result of the possibility of appeal on a point of law as an extraordinary judicial remedy, the provision of the Code of Civil Procedure which ensures the right of appeal against the appellate court’s order making a reference for a preliminary ruling does not restrict the powers set

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forth in Article 234 of the EC Treaty. With regard to the above, the Supreme Court did not deal with the first three questions posed in the order requesting a preliminary ruling. Finally, the Supreme Court also referred to Case C-283/81 S.r.l. CILFIT and Lanificio di Gavardo SpA v. Ministry of Health, in which the European Court of Justice held that although Article 177, paragraph (3) of the EEC Treaty unreservedly requires national courts against whose decisions there is no judicial remedy under national law to refer to the European Court of Justice every question of interpretation raised before them, the authority of an interpretation already given by the European Court of Justice may however deprive the obligation of its purpose and thus empty it of its substance. Such is the case especially when the question raised is materially identical with a question which has already been the subject of a preliminary ruling in a similar case or where previous decisions of the European Court of Justice have already dealt with the point of law in question, irrespective of the nature of the proceedings which led to those decisions, even though the questions at issue are not strictly identical. The Supreme Court examined the questions one by one and addressed each question individually on why making a reference for a preliminary ruling is unnecessary. It ultimately concluded that no question shall be referred to the Court of Justice of the European Union. Among the subsequent and published orders of the Supreme Court and the appellate courts of the same content, which amend a first instance order and set aside the reference for a preliminary ruling, currently there are not any orders that set aside not all but only certain questions. The same panel of the Supreme Court specified its guidelines on making a reference for a preliminary ruling in its order n° 4 rendered in Case n° Gf.X.30.120/2005 and confirmed the order of the Metropolitan Court of Appeal (Fővárosi Ítélőtábla), which had rejected the plaintiff’s request for a reference for a preliminary ruling by adding that refererence shall only be made if the question is relevant with regard to the consideration of the case. The plaintiff requested in fact the interpretation of Article 1 of Protocol n° 1 attached to the Convention for the Protection of Human Rights and Fundamental Freedoms (the ‘Convention’), according to which every natural or legal person is entitled to the peaceful enjoyment of their possessions. The Supreme Court held that on the basis of Article 32 of the Convention, the European Court of Human Rights had jurisdiction for the interpretation of the Convention and the protocols thereto. Articles 155/A and 249/A of the Code of Civil Procedure shall not apply to making a reference to the European Court of Human Rights. In its reasoning the Supreme Court also pointed out dismissing the reference for a preliminary ruling was also appropriate because the plaintiff did not request the interpretation of Community law but the declaration of the incompatibility of applicable Hungarian law with the principles of Community law. However, it is not the Court of Justice of the

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European Union but the national court that has jurisdiction for the interpretation of national law.3 It appears from order n° Gf.X.30.379/2006/3 of the Supreme Court that in the given case the plaintiff requested a referral to the Court of Justice of the European Union in its appeal against the first instance judgement along with the suspension of the proceeding. It asked whether Article 27, paragraph (1) of Act n° XLIX of 1991 on bankruptcy and liquidation proceedings was not incompatible with Article 3, paragraphs (4) and (5) of the first directive of the Council of the European Community (Directive 68/151/EEC) and the content of Council Regulation 1346/2000/EC on insolvency proceedings. The Metropolitan Court of Appeal dismissed the plaintiff’s request. According to the reasoning of its order, as a national court other than that of last instance it exercised its power of assessment ensured in Article 234 of the EC Treaty and considered that making a reference for a preliminary ruling was unnecessary. It held that the content of Article 3, paragraphs (4) and (5) of the first Council directive, which the plaintiff requested to be interpreted, is unambiguous. It pointed out that Article 10, paragraph (1) of Act n° CXLV of 1997 on company registry implemented Article 3, paragraph (5) of the aforementioned directive. Furthermore the Court of Appeal held that the question raised by the plaintiff was not important from the point of view of the adjudication of the dispute. The Supreme Court held the appeal ill-founded, and in its reasoning cited the argument already known from BH 2006/1/18., according to which it follows from Article 234 of the EC Treaty that the interpretation, scope, applicability or compatibility of national law with the Community law is not subject to reference for a preliminary ruling. As it was set forth in C-37/92 José Vanacker and André Lesage v. S.A. Baudoux combustibles, the European Court of Justice had no jurisdiction for the interpretation of the Member States’ national law. The Supreme Court claimed that on the basis of Article 234 of the EC Treaty and the case-law of the European Court of Justice, the Court of Appeal had not infringed any legal regulation by dismissing the request for a preliminary ruling. It was entitled to assess whether the question raised by the plaintiff was necessary from the point of view of the adjudication of the case, or the content of the judgement would have affected the decision to be made, or the regulation of Community law to be interpreted was unambiguous. The reasoning of order n° Gf.X.30.421/2006/3 of the Supreme Court also contains a convincing argumentation. In the given case, the representative of the defendant requested in the appellate procedure that the court of second instance make a reference for a preliminary ruling regarding the interpretation of Article 6, paragraph (2) of the Treaty on European Union. The Metropolitan Court of Appeal rejected the defendant’s request for

3

The Supreme Court published the aforementioned order in Court Decisions (BH n° 2006/1/18) and also as a decision on principle (decision on principle n° 2005/2/1320), therefore it necessarily determined the relevant Hungarian case-law subsequently.

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a preliminary ruling by its order rendered on 5 September 2006. In accordance with its legal standpoint the questions to be answered in the case required the interpretation of national law, for which the European Court of Justice had no jurisdiction. The Metropolitan Court of Appeal referred to Decision BH 2006/18. of the Supreme Court. The Supreme Court held the defendant’s appeal ill-founded and accepted the legal standpoint of the Metropolitan Court of Appeal, according to which the questions to be answered in the given case required the interpretation of national law. The defendant demanded the declaration of invalidity concerning resolutions that had been made by a public body (chamber) established and operated under Hungarian law in order to advance international economic activities. The question whether ordinary courts or – according to the statutes of the chamber – an arbitration tribunal shall have jurisdiction in the given dispute may not be considered a point of law that necessitated the interpretation of Article 11 of the Convention, since it does not affect the freedom of association. The question whether the rights that originated from chamber membership may be exercised through a representative at the general meeting shall be decided on the grounds of Hungarian law, it affects the freedom of association as set forth in Article 11 of the Convention in a rather indirect way, so it shall not be considered as the restriction thereof. The case-law of the Court of Justice of the European Union is unambiguous in that it has no jurisdiction for the interpretation of national law (e.g. in Case C-52/76 Benedetti the European Court of Justice stated that ‘it is not for the European Court of Justice to interpret national law and assess its effects’). In addition to the above the Supreme Court held that under Article 234, point a) of the EC Treaty the Court of Justice of the European Union shall have jurisdiction to give preliminary ruling concerning ‘the interpretation of this Treaty’. The defendant referred to the fact that the interpretation of ‘this Treaty’ shall cover not only the EC Treaty but also other treaties e.g. the accession treaties, and with restrictions set forth in Article 46 of the EU Treaty. The European Court of Justice repeatedly referred to the Convention when applying Community law (e.g. in Case C-4/73 Nold it held that ‘fundamental rights are an integral part of the general principles of law the observance of which the European Court of Justice ensures’), although it has not directly interpreted it. Neither did the defendant refer to such a case. According to the Supreme Court, the questions raised by the defendant in fact required the interpretation of Article 11 paragraphs (1) and (2) of the Convention. With regard to Article 32 of the Convention, the European Court of Human Rights has jurisdiction for the interpretation of the Convention, although the national courts proceeding in the given case may not make a reference thereto. With reference to Decision n° BH 2006/1/18 (Decision on principle n° 2005/2/1320), in order n° 14.Gpkf.43.604/2007/2 the Metropolitan Court of Appeal amended the Metropolitan Court (Fővárosi Bíróság) order making a reference for a preliminary ruling. In the given case, where the Metropolitan Public Prosecutor’s Office (Fővárosi Főügyészség)

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initiated a lawsuit as plaintiff against CIB Credit Zrt. as defendant for the statement of the invalidity of the standard terms and conditions which were applied by the defendant, the defendant filed a request for a preliminary ruling in the first instance procedure with reference to the fact that the legislator went beyond the scope of obligees settled in Article 7, paragraph (2) of Council Directive 93/13/EEC when endowing the prosecutor’s office with the power of taking action in case of unfair contract terms. In its order n° 15.G.40.336/2006/34 the Metropolitan Court made a reference for a preliminary ruling on 16 February 2007. According to its reasoning the lawsuit between the parties may not be decided without the interpretation of Article 7, paragraph (2) of Council Directive 93/13/EEC and the collation – executed by the national court – of such interpretation and the regulation concerning the prosecutor set forth in Article 5 of Law Decree n° 2 of 1978 on the amendment and the unified text of the Civil Code. Since the text of the directive does not contain a definition of the person or organization having a legitimate interest, the legislator’s intention concerning who shall be regarded as a person or organization having a legitimate interest for taking action remains unclear. The directive was implemented into Hungarian law by Act n° CXLIX of 1997 on the amendment of the Civil Code and on the ground thereof by Decree n° 18 of 1999 (II. 5) issued by the Government on unfair conditions of agreements concluded by a consumer. According to the legal standpoint of the first instance court the interpretation is essential not only for the purposes of deciding whether the plaintiff has a right to take action but also for the purposes of establishing subsequent case-law in compatibility with Community law, with regard to the fact that before the court in question it is only the prosecutor who may file an action in lawsuits regarding the statement of the invalidity of unfair standard terms and conditions. Therefore the first instance court made a reference for a preliminary ruling on the basis of Article 234 of the EC Treaty and Article 155/A of the Code of Civil Procedure and simultanesouly stayed its proceeding. The Metropolitan Court of Appeal held the plaintiff’s appeal well-founded. According to its legal standpoint, although the first instance court set out the factual context of the case correctly when considering the request for a reference for a preliminary ruling, on the basis of an incorrect interpretation of the applicable regulation and the ill-founded legal conclusion, it made a reference for a preliminary ruling by staying its proceeding. Whether such regulation is in conformity with Community law, the Metropolitan Court of Appeal in its reasoning pointed out that on the grounds of the settled case-law no reference for a preliminary ruling can be made if the party requests not the interpretation of Community law but the declaration that Hungarian law is not in conformity with Community law (EBH 2005/1320); concerning its merits the legal argumentation of the plaintiff is adequate. In its order n° Kpkf.III.37.211/2005/2 published under BH 2006/1/18 (decision on principle n° 2005/2/1320), the Supreme Court came to a similar conclusion with a different

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reasoning. In the main proceeding the plaintiff made an appeal against the judgement of the first instance court, arguing among others that reference should have been made for a preliminary ruling. The Metropolitan Court of Appeal dismissed the request for a reference for a preliminary ruling. Against this order the plaintiff filed an appeal which the Supreme Court held ill-founded. The Supreme Court agreed with the second instance court in that the judicial review of the defendant’s resolution constituted the subject of the lawsuit. The second instance court adequately referred to the fact that the defendant stated lawfully the lack of its jurisdiction. In the examination of the order dismissing the request for a reference for a preliminary ruling the Supreme Court made the conclusion that the second instance court was right in claiming that no question was raised which necessitated the application or interpretation of Community law. The Supreme Court maintained its legal standpoint even in light of the detailed argumentation of the plaintiff’s appeal and confirmed the second instance order. In the case which was pending before the Supreme Court under n° Kfv.IV.37.268/2005, the plaintiff brought legal proceedings against the defendant’s decision and requested that it be set aside. The plaintiff referred among others to the fact that the challenged procedure did not conform to the principles of Community law, it violated the right to a fair trial and requested a reference for a preliminary ruling. The first instance court dismissed the plaintiff’s statement of claims and held the reference for a preliminary ruling unnecessary. The Supreme Court agreed with the first instance court on that point and held that making a reference was not justified in the given case.

31.3

The Case-Law of the Supreme Court after the Cartesio Case

In its judgement delivered on 16 December 2008 in Case C-210/06 (Cartesio), the European Court of Justice interpreted in detail the mechanism of references for a preliminary ruling and the relationship between Article 234 of the EC Treaty which sets forth the framework of references and the Code of Civil Procedure. Although this judgement of the European Court of Justice has no erga omnes effect, the principle of good faith vis-à-vis the Community set forth in Article 10 of the EC Treaty requires the courts of the Member States that they interpret and apply Community law in the light of the relevant case-law of the European Court of Justice.4 This decision allowed the Supreme Court to provide detailed guidance to the Hungarian courts in order to ensure their uniform case-law in respect of appeals lodged against court orders making a reference for a preliminary ruling.5 4 5

See the judgement delivered in Case C-224/01 Gerhard Köbler on 30 September 2003, Paras. 31 and 56; and the judgement delivered in Case C-2/06 Willy Kempter KG on 12 February 2008, Paras. 34-35. The judgement of the European Court of Justice delivered in the Cartesio case had repercussions on the national legislation as well. By adopting the Act on the acceleration of the decision-making process in legal

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The Civil and Administrative Departments of the Supreme Court adopted a joint opinion on 26 June 2009. The opinion refers to the fact that, in its the judgement rendered in the Cartesio case, the European Court of Justice, answering the question whether an appeal can be lodged on the basis of Article 155/A, paragraph (3) of the Code of Civil Procedure, set out that the jurisdiction conferred on any national court by Article 234, paragraph (2) of the EC Treaty to make a reference to the European Court of Justice for a preliminary ruling cannot be called into question by the application of those national rules which permit the appellate court to vary the order for reference, to set aside the reference and to order the referring court to resume the domestic law proceedings. In the reasoning of its judgement, the European Court of Justice considered that it is not contrary to Community law if national law allows appeal against the order making a reference for a preliminary ruling, however, the appellate court may not take over or restrict the referring court’s aforementioned jurisdiction ensured in the EC Treaty. Paragraph 96 sets out that thus it is for the referring court to draw the proper inferences from a judgment delivered on an appeal against its decision to refer and, in particular, to come to a conclusion as to whether it is appropriate to maintain the reference for a preliminary ruling, or to amend it or to withdraw it. According to the standpoint of the Civil and Administrative Departments of the Supreme Court, the judgement of the European Court of Justice is hardly compatible with the applicable theoretical system of the Code of Civil Procedure with regard to the fact that the judgement delivered by the appellate court is binding on the first instance court under any circumstances, and the first instance court is not entitled to differ from the appellate court’s position in any way. The same argument applies to appeals based on Article 155/A, paragraph (3) of the Code of Civil Procedure. In cases where the previous provisions, in force until 1 January 2010, of the Code of Civil Procedure shall be applied, the interpretation most in line with the judgement of the European Court of Justice and with the theoretical system of the Code of Civil Procedure with particular regard to the relevant Hungarian case-law developed until then is the following: the court of appeal shall neither call into question the necessity of the reference, nor the substance or the appropriateness of the preliminary questions, it shall only confirm the referring order on the grounds of Article 253, paragraph (2) applicable on the basis of

disputes between enterprises, amending Act n° III of 1952 on the Code of Civil Procedure, the Parliament decided to abrogate Art. 249/A and Art. 340, Para. (3) of the Code of Civil Procedure as of 1 January 2010, and to amend Art. 155/A, Para. (3) as follows: ‘No appeal shall be lodged against a court decision making a reference for a preliminary ruling or dismissing a request for a reference for a preliminary ruling.’ According to Art. 12, Para. (3) of the amending Act, the new provisions shall apply to legal proceedings initiated only after their entry into force. Consequently, the abrogated and amended provisions of the Code of Civil Procedure shall still apply to legal proceedings initiated before the entry into force of the new regulation. Therefore, the uniform interpretation and application of the previous provisions will still be important in the following years.

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Article 259. Nevertheless, the appellate court shall still apply those provisions of the Code of Civil Procedure which exclude the reference for a preliminary ruling for procedural reasons. In its opinion, the Supreme Court also referred to the fact that in the Hungarian courts’ case-law concerning the consideration of appeals lodged on the basis of Article 249/A and Article 340, paragraph (3) of the Code of Civil Procedure, cases in which the appellate court ordered the second or first instance court, despite its earlier decision that had dismissed a request for initiating a preliminary ruling procedure, to make a reference for a preliminary ruling have been unprecedented. One apparent reason for the aforementioned lack of such cases is that the applicable law and the interpretation thereof is part of the decision delivered on the merits of the case and until the proceeding court has not rendered such decision, the appellate court cannot give a binding order regarding its content. In the explanatory statement of Act n° XXX of 2003 regarding Article 249/A of the Code of Civil Procedure, the legislator argues that it is expedient to regard the second instance court as the one who is obliged to refer on the basis of Article 234, paragraph (3) of the EC Treaty. The parties may enforce that the second instance court comply with its obligation to make a reference by lodging a separate appeal against the order dismissing the request for a reference for a preliminary ruling. In the operative part of the judgement delivered in the Cartesio case, the European Court of Justice declared that Article 234, paragraph (3) of the EC Treaty shall not apply to a court whose decisions in disputes such as that in the main proceedings may be appealed on points of law. The interpretation suggested in the reasoning is not in accordance with the cited operative part of the judgement. Throughout its ruling, the Court of Justice of the European Union argues that the referring court has exclusive responsibility to decide whether the request for a preliminary ruling is appropriate or necessary. However, the Court of Justice of the European Union does not state the above expressively, therefore, based on the a contrario argument, it follows that the national courts which are not obliged to refer may consider that in the given case there is no need for making a reference for a preliminary ruling. The discretionary powers of the lower instance courts would be restricted contrary to Article 234, paragraph (2) of the EC Treaty by an appellate decision that could oblige the proceeding court to depart from its intention to make a reference. Meanwhile, the appellate court still has the possibility to make a reference for a preliminary ruling if it deems it necessary, in a later phase of the appellate procedure involving the examination of the lower instance decision rendered on the merits of the case, to request an interpretation from the Court of Justice of the European Union.

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31.4

References for a Preliminary Ruling Made by the Civil Department of the Curia

Since Hungary’s accession to the EU ten years ago, the Civil Department of the Curia has made four references for a preliminary ruling, out of which three have been answered. The first of these was Case C-527/10 (ERSTE Bank) in which the Curia had to examine whether it had jurisdiction in an insolvency proceeding based on Council Regulation 1346/2000/EC of 29 May 2000 on insolvency proceedings. In its judgement delivered on 5 July 2012 the Court of Justice of the European Union ruled that Article 5, paragraph (1) of the Regulation must be interpreted as meaning that that provision is applicable, in circumstances such as those in the main proceedings, even to insolvency proceedings opened before the accession of the Republic of Hungary to the European Union where, on 1 May 2004, the debtor’s assets on which the right in rem concerned was based were situated in that State, which is for the referring court to ascertain.6 With its order n° Gfv.VII.30.236/2012/5, the Curia – in light of the judgement given by the Court of Justice of the European Union – established that the Hungarian courts had jurisdiction in the case, and by overturning the final order that had said the opposite, it called upon the first instance court to conduct a new proceeding.7 In Case C-378/10 (VALE) the Curia had to interpret the freedom of settlement in a case concerning the cross-border company conversion. According to the facts of the case, the company called VALE S.r.l. that had its seat in Rome asked on 3 February 2006 to be removed from the register, referring to the fact that the company wanted to transfer its seat and activities to Hungary. Acting upon the request, the office of registry removed the company from the company register on 13 February 2006. On 14 November 2006 the managing director of VALE S.r.l. and a natural person signed the company contract of VALE Construction Kft. (Ltd), stating that ‘the company that had originally been created in Italy according to Italian law decided to transfer its seat and activities to Hungary’. At the same time the members paid their share in the manner prescribed by Hungarian law for the purposes of the registration of a newly-established company. The legal representative of VALE Kft. requested the registration of the company as one created under Hungarian law. In its request VALE Kft. indicated VALE S.r.l. as its predecessor.

6 7

In his opinion Advocate-General Ján Mazák proposed to the European Court of Justice not to answer the question of the Curia because of its hypothetical nature. I will not get into details about the facts of the case due to their complexity. In line with its relevant case-law the European Court of Justice did not say anything new about the notion of contractual demand under Art. 5, Para. (1) of Regulation 1346/2000/EC, but it unambiguously excluded from that notion the demand that constituted the basis of the case.

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The first instance registry court rejected the request for registration. The second instance court approved the first instance order. According to its reasoning, under Hungarian law a company created and registered in Italy cannot transfer its seat to Hungary and cannot be registered in Hungary in the requested manner. In its request for a review of the final order the applicant asked for the reversal of the order and for the registration of the company. He argued that the disputed decision violated the directly applicable Articles 49 and 54 of the Treaty on the Functioning of the European Union and did not make a distinction between transfer of seat across the borders and cross-border company conversion. The Curia referred to the Court of Justice of the European Union for the interpretation of Articles 49 and 54. In its judgement delivered on 12 July 2012 the Court of Justice of the European Union laid down several criteria for the Member States in adjudicating such requests. It stated that Articles 49 and 54 are to be interpreted as precluding national legislation which enables companies established under national law to convert, but does not allow, in a general manner, companies governed by the law of another Member State to convert to companies governed by national law by incorporating such a company.8 In its decision passed according to the guidelines of the Court of Justice of the European Union judgement, the Curia held that in case of cross-border company conversion the contract of the successor company shall be concluded not around the time the decision to terminate the operation of the predecessor company was taken but by the time of the removal of the predecessor company from the register at the latest in the manner stipulated in Act n° IV of 2006 on business associations. In the case of cross-border company conversion, from among the national legal rules on internal (not cross-border) conversion the Curia considers two factors to be guiding: at least one member of the predecessor company should be a member of the successor company and part of the assets of the predecessor company should form part of the assets of the successor company. Not meeting these criteria means a lack of legal succession and continuity between the two companies. Since according to the above it is a fundamental criterion that the document of establishment of the successor company shall be signed at the time of the removal of the predecessor company from the registration at the latest, VALE Kft. cannot be registered as the legal 8

This Court of Justice judgement has been widely reviewed and examined, see for example J. Borg-Barthet, ‘Free at Last? Choice of Corporate Law in the EU Following the Judgment in Vale’, International and Comparative Law Quarterly (2013), pp. 503-512; G. Van Gelder, ‘The European Cross-Border Conversion from a Dutch Tax and Legal Perspective’, EC Tax Review (2013), pp. 202-208; J. Jakubowski and P. Ondrejka, EuGH: Rs VALE – Grenzüberschreitende Umwandlung von Gesellschaften, Österreichisches Recht der Wirtschaft, 2012, pp. 704-708; J. Houet, ‘Cross-Border Mobility within the EU: the Saga Continues…’, European Law Reporter (2012), pp. 206-212; T. Biermeyer, ‘Shaping the Space of Cross-Border Conversions in the EU. Between Right and Autonomy: VALE’, Common Market Law Review (2013), pp. 571-590; M. Varju, ‘A Cartesio-ügy. Társasági székhely áthelyezése és az előzetes döntés kérésének joga’ (The Cartesio Case. The Transfer of Company Seat and the Right to Refer a Preliminary Question), 2 Jogesetek Magyarázata (2010), pp. 51-72.

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successor of VALE S.r.l. (nine months passed between the deletion of the Italian predecessor company and the establishment of the Hungarian successor company). In Case C-519/12 (OTP Bank) the Curia had to decide in an issue of jurisdiction again, this time by interpreting the notion of contractual demand as stipulated in Article 5, paragraph (1), point a) of Council Regulation 44/2001/EC. The plaintiff based its claim on Article 292 of Act n° CXLIV of 1997 (repealed in 2006), according to which the existence of a significant interest, a majority interest or a controlling interest shall be reported to the court of registration competent for the registered office of the controlled company by the party holding such interest within a period of thirty days after establishment thereof. In the event of delayed performance or non-performance of the disclosure obligation, upon the liquidation of the controlled company, if the assets of the controlled company do not cover satisfaction of creditors, dominant members shall bear unlimited and full liability for debts of the company incurred up until performance of the disclosure obligation. The plaintiff argued that the defendant failed to comply with its reporting obligation, therefore it was obliged to pay the debts of the controlled company under liquidation proceeding. Since the defendant was a company with a registered seat in Germany, according to the general rule of jurisdiction of the Regulation the Hungarian courts were not competent in the case, that is why an interpretation of the parallel rule of jurisdiction of Article 5 was sought. In its judgement delivered on 17 October 2013 the Court of Justice of the European Union held that an action such as that in the main proceedings, in which national legislation renders a person liable for the debts of a company which he controls, where that person did not comply with the reporting obligations following the acquisition of that company, cannot be regarded as concerning ‘matters relating to a contract’ for the purposes of Article 5, paragraph (1), point a) of Council Regulation 44/2001/EC. In light of the judgement, with its order n° Gfv.VII.30.319/2013/7 the Curia established the lack of jurisdiction of Hungarian courts, and ruled on the discontinuation of the case. In Case C-26/13 Kásler, the Curia asked for the interpretation of Article 4, paragraph (2) of Council Directive 93/13/EEC on unfair terms of consumer contracts. In this case of considerable public interest the Curia examined for the first time in relation to the socalled foreign currency based loan contracts whether the application of two different exchange rates shall be considered a contract term whose unfairness can be examined by the courts or whether the above mentioned provision of the directive excludes the possibility of judicial review in the issue. The opinion of the Advocate-General has been delivered, the Court of Justice of the European Union will deliver its judgement on 30 April 2014.

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Gábor Molnár*

32.1

Introduction

Hungary joined the European Union a decade ago, on 1 May 2004. This ten-year anniversary provides an excellent opportunity for national institutions to assess the impact of EU membership on the modification, development and fulfilment of their core activities. The past ten years have also considerably influenced the adjudicating activities of the Criminal Department of the Supreme Court and its legal successor, the Curia, therefore an overview of the requirements emanating from Hungary’s EU membership and of the opportunities provided by the EU integration is well justified.

32.2

The Legal Background Provided by the European Union

The European Union was created by the Maastrich Treaty.1 The treaty established the three pillars of the European Union – firstly, the European Community pillar, secondly, the Common Foreign and Security Policy pillar, and thirdly the Justice and Home Affairs Cooperation pillar. The third pillar had an intergovernmental characteristic, as the Member States’ sovereignties in this field were not transferred to the EU’s supranational institutions, excluding the adoption of compulsory EU norms by them. The pieces of legislation in the third pillar included various international agreements, as well as joint positions adopted by the European Council, and the Member States preserved their sovereignty to decide whether to accede to third pillar agreements in the area of cooperation in criminal matters. These third pillar agreements concluded by the Member States aimed at deepening criminal cooperation in the fields of criminal proceedings and the enforcement of criminal sanctions. The Amsterdam Treaty, entered into force on 1 May 1999, gave high priority to the reform of the EU’s justice and home affairs policy. The treaty transferred some of the fields covered by the third pillar to the first pillar, in particular, the criminal protection of the * 1

Head of Panel at the Criminal Department, Curia of Hungary, Judicial Advisor in European law. E-mail: [email protected]. The Treaty on European Union signed on 7 February 1992 in Maastricht entered into force on 1 November 1993.

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financial interests of the European Communities became a first pillar issue, however, the treaty provided no efficient criminal protection at Community level. Thus, third pillar intergovernmental cooperation remained the only available means for the use of criminal law instruments. The Member States were unwilling to transfer their legislative powers in criminal matters to the European Union, therefore neither the Maastricht Treaty, nor the Amsterdam Treaty contained any provisions in this regard. At that time, the EU had no legitimate legislative body that could be able to draft a common criminal code, the EU probably still lacks such a legislative body even today. In 1999, the European Council held a special meeting in Tampere on the creation of an area of freedom, security and justice in the European Union which also aimed at improving cooperation in criminal matters within the EU. The participants of the meeting declared that, in the framework of international cooperation in criminal matters, ‘the principle of mutual recognition of judicial decisions and judgements should become the cornerstone of judicial cooperation in criminal matters within the Union’. The participants also considered that the formal extradition procedure should be abolished among the Member States as far as persons are concerned who are fleeing from justice after having been finally sentenced, and replaced by a fast track transfer of such persons. The principle of mutual recognition in the field of extradition means that each national judicial authority is required to recognise, ipso facto, and with a minimum of formalities, requests for the surrender of a person made by the judicial authority of another Member State. On 13 June 2002, the Council of the European Union adopted Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States, which replaced the extradition system by a new judicial mechanism. The framework decision entered into force on 1 January 2004, while Hungary and the other newly acceding Member States had to apply it as of their accession to the EU: This judicial mechanism contributed to an enhanced cross-border cooperation between Member States in the fields of criminal justice and law enforcement at European Union level. The regulation by framework decision was chosen as the most appropriate method of legislation in order to take fully into account the requirements of efficiency and effectiveness. The provisions of the framework decision on the European arrest warrant and the surrender procedures between Member States have already been transposed by each Member State into their national law. Based on the experience gained from the implementation of the Tampere Programme, the Council of the European Union adopted, on 4 November 2004, the so-called Hague Programme that set out ten priorities for the Union between 2005 and 2010 with a view to strengthening the area of freedom, security and justice. The programme aimed at introducing new judicial mechanisms, and urged the Member States to correctly implement the previously adopted pieces of EU legislation and international agreements.

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In the reform of the European Union, policy-makers examined the possibility of adopting a common criminal code at EU level. The Union’s criminal policy could be implemented either by harmonisation or by unification. Harmonisation leads to the adoption of new provisions of national criminal law for the purpose of protecting EU interests. The process of harmonisation is relatively effortless, given that harmonisation acts can be transposed into domestic law by a simple legislative measure, however, their application requires a thorough knowledge of foreign legal regimes. The only way to create European criminal law is if the Member States transfer some of their punitive powers to the EU institutions with the result that the Union is entitled to legislate in criminal matters and to establish a criminal justice apparatus (courts, prosecution offices) at EU level. For the time being, this is not a realistic option, not from a dogmatic point of view, but rather from a political perspective. There is a general opinion that the direct effect of Community norms adopted with the aim of harmonising criminal law would seriously jeopardise the integrity of criminal law and the principle of legal certainty. Hungary enacted the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community by Act n° CLXVIII of 2007. The Treaty of Lisbon entered into force on 1 December 2009. As a result of the Treaty of Lisbon, Chapter 4 of Title V of the Treaty on the Functioning of the European Union regulates judicial cooperation in criminal matters. This chapter stresses the importance of the principle of mutual recognition of judgements and judicial decisions, defines the basic principles that should be applied in national legislation in criminal matters, and determines the structure, operation, field of action and tasks of the EU’s judicial authorities (Eurojust, European Public Prosecutor’s Office). The above overview shows that judicial cooperation in criminal matters within the EU is essentially of a procedural nature, therefore these EU mechanisms are not applied on a daily basis by the Criminal Department of the Supreme Court (Curia). This is due to the fact that the Supreme Court can deal with ordinary appeals only as a third instance judicial forum and is not entitled to take evidence in third instance proceedings. The Curia mostly deals with extraordinary judicial remedies which rarely necessitate the direct application of the EU instruments of judicial cooperation in criminal matters.

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32.3

The Role and Importance of the Preliminary Ruling Procedures in the Case-Law of the Criminal Department of the Supreme Court (Curia)

In 2013, the President of the Curia ordered the establishment of a jurisprudence-analysing working group focusing on the application of EU law and on preliminary ruling procedures before the Court of Justice of the European Union.2 The working group concluded that the Criminal Department of the Supreme Court (Curia) has not yet made, either ex officio or upon the parties’ request, any reference for a preliminary ruling. However, the Criminal Department must be prepared for such an eventuality. Article 266, paragraph (1), point d) of the Code of Criminal Procedure stipulates that the court shall, either ex officio or upon request, stay its proceedings if it decides to make a reference for a preliminary ruling to the Court of Justice of the European Union according to the relevant provisions of the Treaty on European Union and the Treaty on the Functioning of the European Union. In its referring order, the court shall formulate its questions which should be answered by the Court of Justice of the European Union and shall inform, to the extent necessary to answer, the Court of Justice of the European Union about the factual background of the case and the relevant provisions of national law. The referring order shall be sent to the Court of Justice of the European Union and forwarded, for information, to the Hungarian Minister of Justice as well.3 The above provision of the Code of Criminal Procedure has not yet been applied by the Curia, and, as has already been mentioned, it is not likely to occur in the area of judicial cooperation in criminal matters. There are, however, some segments in the field of substantive criminal law that can be directly affected by EU law. With regard to these segments, the Curia has to ensure the full implementation of EU law in both ordinary appeal cases and extraordinary judicial remedy proceedings.4

32.4

The Application of Community Law in Issues of Uniform Application of Law

According to the Fundamental Law, the Curia shall ‘ensure uniformity in the judicial application of laws.’ The uniformity decision is an efficient tool to achieve this aim since it is binding on all courts.

2 3 4

The summarised opinions of the jurisprudence-analysing working groups are available on the Curia’s website (www.kuria-birosag.hu/hu/joggyakorlat-elemzo-csoportok-osszefoglaloi). This provision of the Code of Criminal Procedure was enacted by Art. 89, Para. (4), point d) of Act n° XXVII of 2007. See Point 37.5. hereunder for more details.

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Shortly after Hungary’s accession to the European Union the Supreme Court realised that judicial practice related to the interrupting effect of the international and European arrest warrant on the limitation period was not coherent. Therefore, the Uniformity Panel of the Criminal Department of the Supreme Court adopted uniformity Decision n° 1/2005 on the interrupting effect of the international arrest warrant and the extradition request on the limitation period.5 According to the decision: a) The international arrest warrant, which was issued after the issuance of the national arrest warrant interrupts the limitation period. Similarly, the European arrest warrant, issued after the issuance of the national arrest warrant and pursuant to Act n° CXXX of 2003 on cooperation with Member States in criminal matters, also interrupts the limitation period. If an international arrest warrant comes to effect in a Member State of the European Union, where the person concerned might be surrendered, the European arrest warrant issued thereafter does not interrupt the limitation period. If the authority proceeding in a criminal matter issued only an international or European arrest warrant (and did not issue a national arrest warrant), the national arrest warrant whose issuance has been necessitated by new facts also interrupts the limitation period. In extradition procedures based on Act n° XXXVIII of 1996 on international legal assistance in criminal matters, an arrest warrant issued by the judge or the penitentiary judge pursuant to Article 32 of the said act interrupts the limitation period. b) Procedural measures taken by foreign authorities pursuant to an extradition request issued by the Minister of Justice are to be considered as the procedural acts of national authorities from the aspect of limitation. c) An extradition request issued by the Minister of Justice with respect to another state interrupts the limitation period at the time of issuance. In its detailed reasoning the decision pointed out that the European arrest warrant as a new legal instrument included the search for the wanted person, his arrest, detention and his surrender to the issuing authority. Thereby the traditional extradition procedure is shortened, creating direct cooperation between the authorities of the Member States. The provision of the Criminal Code on the limitation of punishability and the enforcement of punishment does not differentiate between steps taken by Hungarian authorities in respect of their scope. Therefore, from the aspect of limitation, an international arrest warrant, a European arrest warrant or an arrest warrant pursuant to Article 32 of Act n° XXXVIII of 1996 that was issued after the issuance of a national arrest warrant cannot be considered an administrative step repeating the national arrest warrant. At the time of the issuance of an international arrest warrant, one does not know if the wanted person stays or will be arrested in an EU Member State or outside the EU. 5

Published in the 35 Hungarian Official Journal (2005).

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If the accused is arrested based on an international arrest warrant, in the ensuing procedure extradition is initiated in cases belonging under Act n° XXXVIII of 1996 and surrender is initiated in cases belonging under Act n° CXXX of 2003. Consequently, in cases belonging under Act n° CXXX of 2003, the European arrest warrant issued subsequently does not interrupt the limitation period: it only replaces the international arrest warrant, as if the arrest had been started originally with the European arrest warrant. This rule, however, cannot be applied to persons against whom extradition was initiated pursuant to Act n° XXXVIII of 1996, since the rule can be applied only in the EU and in cases belonging under Act n° CXXX of 2003. Considering the fact that an arrest warrant issued pursuant to the Code of Criminal Procedure can be directly targeted at a foreign country, further circumstances may rise, which will necessitate the issuance of a national arrest warrant. A national arrest warrant issued in this way cannot be considered an administrative step, therefore it shall have an interrupting effect on the period of limitation. A further important statement of the decision was that an extradition request lodged by the Minister of Justice also interrupts the limitation period because pursuant to provisions of Act n° XXXVIII of 1996 the Minister proceeding in the matter shall be considered an authority.

32.5

The Direct Application of Community Law in Cases of Incomplete Rule (Frame Statutory Definition of Offences)

The Criminal Department of the Curia has recently passed an important, guiding decision from the aspect of the practical application of Community law. Decision n° Bfv.II.222/2012/5 was rendered in a criminal case of tax fraud, but the principles laid down in the decision can be guiding in the judicial practice of numerous other types of crimes. The regulation of tax fraud is an incomplete rule. Incomplete rules do not contain all the constituent elements of an offence, in other words they do not meet the requirements of nullum crimen sine lege. Missing elements are defined in other legal rules. Tax obligation, which is in the focus of tax fraud, is not a criminal but an administrative law concept whose detailed definition is given in legal rules on taxation. The EU is entitled to create rules on taxation that Member States are obliged to implement into their national law. Member States have to ensure that both national legislation and national judicial practice comply with community regulation and the case-law of the Court of Justice of the European Union. As the Curia pointed out, the criminal courts proceeding in tax fraud cases are also obliged to create a judicial practice that complies with Community law. Therefore, in the

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criminal case instituted in VAT fraud, the Curia took into account community regulation and the case-law of the Court of Justice of the European Union when examining the legislative conditions of tax fraud. Sixth Council Directive 77/388/EEC of 17 May 1977 regulated the harmonization of the laws of the Member States relating to turnover taxes, it provided a common system of value added tax and a uniform basis of assessment, and then, as of 1 January 2007, it was replaced by Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax. According to Recital 3 in the preamble to Directive 2006/112/EC, in order to ensure that the provisions are presented in a clear and rational manner, it was appropriate to recast the structure and the wording of the Directive although this did not bring about material changes in the existing legislation. Upon requests for a preliminary ruling submitted by Hungarian courts, the Court of Justice of the European Union gave a ruling on the interpretation of the common system of VAT in 2012, too. Such was the judgement of 21 June 2012 in joint cases C-80/11 and C-142/11, which was given as an answer to the questions asked in proceedings where the dispute arose between Mahagében Kft. (Ltd.) and a Regional Directorate-General of the National Tax and Customs Authority (C-80/11), and Péter Dávid and another Regional Directorate-General of the National Tax and Customs Authority (C-142/11). The referred questions concerned Council Directives 77/388/EEC and 2006/112/EC. In paragraph 3 of ‘legal context’ the Court pointed out that Directive 2006/112 repealed and replaced, as from 1 January 2007, European Union law on VAT, including the Sixth Directive. According to Recitals 1 and 3 in the preamble to Directive 2006/112/EC, the recasting of the Sixth Directive was necessary to ensure that all the applicable provisions are presented in a clear and rational manner in a revised structure and wording while, in principle, no material changes are made. The provisions of Directive 2006/112/EC are therefore, essentially, identical to the corresponding provisions of the Sixth Directive. In paragraph 38 the Court held that the right to deduct provided for in Articles 167 et seq. of Directive 2006/112/EC is an integral part of the VAT scheme and in principle may not be limited. In particular, the right to deduct is exercisable immediately in respect of all the taxes charged on transactions relating to inputs. Pursuant to paragraph 39, the deduction system is intended to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures neutrality of taxation of all economic activities, whatever the purpose or results of those activities, provided that they are themselves subject in principle to VAT. In paragraph 40 the Court ruled that the question whether the VAT payable on the prior or subsequent sales of the goods concerned has or has not been paid to the public purse is irrelevant to the right of the taxable person to deduct input VAT. VAT applies to

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each transaction by way of production or distribution after deduction of the VAT directly borne by the various cost components. In paragraph 41 the Court recalled that preventing possible tax evasion, avoidance and abuse is an objective recognised and encouraged by Directive 2006/112/EC. In that regard, the Court has already held that EU law cannot be relied on for abusive or fraudulent ends. Therefore, as paragraph 42 stipulates, it is a matter for the national authorities and courts to refuse to allow the right to deduct where it is established, on the basis of objective evidence, that that right is being relied on for fraudulent or abusive ends. These rules and principles were applied by the Curia when it examined the petition for a judicial review that had been lodged with it by the defence attorney of a second accused. The Curia pointed out that the ruling of the Court of Justice of the European Union in the above case shall be guiding in cases that are subject to incomplete rules in the Criminal Code. That is, the missing elements of the offence subject to incomplete regulation are defined by community norms. Such norms include, among others, damage to the environment (Article 241 of the Criminal Code), damage to the natural environment (Article 242), violation of waste management regulations (Article 248), money laundering (Chapter XL), acts of terrorism (Articles 314-319), abuse of weapons prohibited by an international treaty (Article 326), violation of international trade restriction (Article 327), abuse of military products and services (Article 329), abuse of dual-use items (Article 330), criminal protection of products subject to customs and excise duty. This list neatly illustrates the wide scope of the direct application of Community law in criminal jurisprudence and in the judicial practice of the Curia.

32.6

Summary

In the field of criminal justice, the European Union regards ensuring uninterrupted judicial cooperation in criminal matters as its most important task. One of the undesirable consequences of the completion of the four fundamental freedoms in today’s Europe is that crime knows no national borders. In the light of this phenomenon, criminal law enforcement can work effectively only if it were able to overcome the difficulties emanating from state sovereignty, and from the shortcomings and erratic functioning of law enforcement bodies and judicial authorities. In the traditional areas of criminal law, the Union exerts no significant influence on the determination of criminal acts. Nonetheless, the so-called technical pieces of criminal law, as the ones referred to above, are gaining ever more ground in the Member States’ criminal legislation. Some argue that the number of technical pieces of criminal law will eventually exceed the number of traditional criminal acts of law. In addition, the essential

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contents of traditional criminal law are increasingly defined by EU norms that are directly applicable by the national courts. In its adjudicating activities, the Curia also has to ensure the application of a number of other norms that are referred to by the domestic pieces of criminal legislation. These other norms include all the important pieces of international humanitarian law (such as the Hague Conventions, the Geneva Conventions, and the Statute of the International Criminal Court as one of the United Nations’ most fundamental pieces of humanitarian law) and the European Convention on Human Rights.6 At the same time, the Curia takes into consideration the case-law of the European Court of Human Rights, the Fundamental Law of Hungary and the case-law of the Constitutional Court as well. The Criminal Department of the Curia has to take account of the above norms in both its day-today adjudication and its jurisprudence-unifying tasks. By taking into account the foregoing, it is expected that, in the coming years, the Curia’s role in interpreting the law and unifying the case-law of the lower instance courts will be gradually extended and completely fulfilled.

6

Hungary enacted the Convention for the Protection of Human Rights and Fundamental Freedoms signed on 4 November 1950 in Rome and eight of its protocols by Act n° XXXI of 1993.

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‘You Could Have Put It More Politely’ – Remarks on the Constitutional Regulations of Freedom of Assembly

Barnabás Hajas* A lot of criticism has been voiced against the Hungarian regulatory system of freedom of assembly contesting its obsolescence and need-of-change in the past years. As a scholar researching the topic, I was looking forward to the formulation of freedom of assembly in the new Hungarian Constitution with heightened waiting. In advance I am telling that substantially – except for the need of qualified majority1 – the constitutional rule of the freedom of assembly is appropriate for me. On the other hand, my opinion is that the new Hungarian Constitution could have been capable of reacting suitably in the light of the 21st century’s challenges to create a new law of freedom of assembly. While writing this study I had double purpose in mind: on one hand, the examination of the suspected new law of freedom of assembly’s regulatory prerequisites and its underlying constitutional provisions. In doing so, I was reviewing Article VIII of the Fundamental Law if it complies with the challenges of the age, namely how it matches other European countries’ constitutions or rather how it serves the standards of international and regional human rights’ documents. In this context I reviewed if the relevant provisions of the Fundamental Law occur any difference from the previous interpretation or legislation. On the other hand, I was endeavouring to mark the issues that could have been differently defined or a better way interfaced with the foreign standards. (Moreover I did not conceive de lege ferenda suggestions.) If we compare the old and the new, Article 62(1) of the former Constitution stipulated that the Republic of Hungary recognizes freedom of peaceful assembly and provides the free exercise of this right. To adopt the law of freedom of assembly, the majority of two thirds of the members of the Parliament present was required – added paragraph (2). Nonetheless, Article VIII(1) of the Fundamental Law of Hungary – which regulates the freedom of assembly besides the right of association containing the freedom to

* 1

Adjunc professor, Péter Pázmány Catholic University; Deputy Head of Department, Ministry of Justice. E-mail: [email protected]. Agreeing with András Jakab’s constitutional draft (András Jakab 2011. évi … törvény. A Magyar Köztársaság Alkotmánya. Magántervezet, szakmai álláspont kialakítása céljából. PPCU FLPS, 10 January 2010, www.jak. ppke.hu/tanszek/alkotm/letolt/alkt.pdf).

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organise and the freedom of establishing a party –is merely about that ‘Every person shall have the right to peaceful assembly.’. It’s notable that the pertinent provisions of Hungary’s Fundamental Law do not contain any specifications about the majority of two thirds in the subject.

33.1

Is It Appropriate to Regulate the Freedom of Assembly in the Same Provision with the Freedom of Association?

It can be a question, if freedom of assembly’s constitutional regulations’ formulation matches the foreign and international practice. According to my research which covers thirty documents, six national constitutions2 and three regional documents,3 regulates the freedom of assembly and freedom of association at the same provision. This method is not unprecedented; however it cannot be called as an average jurisprudence. As far as I’m concerned – simply in the light of the fundamental rights’ dogmatics, considering the significance of the fundamental right mentioned above – it could have been more appropriate to regulate each of the fundamental rights in separate provisions.

33.2

The Human Right-Aspect of Freedom of Assembly

Freedom of assembly developed with the first generation of fundamental rights, which means it is one of the political and communications freedom rights according to its content and function. The human right-aspect of the freedom of assembly – in relation to the other human rights – was fairly lately accepted.4 At the time of the establishment of nation-states, constitutions and law regulated freedom of assembly as a part of legal rights.5 According to Drinóczi and Petrétei ‘since the middle of 20th century, international expectations had an effect on each states’ constitution-making and legislation – with rare exceptions – and it can stated that during the new procedures of drafting and adopting period of constitutions freedom of assembly was spreading as a part of human rights.’6 As exceptions, the Greek

2 3 4 5

6

Cyprus, Finnish, Irish, Maltese, Swedish and Slovenian constitutions. Universal Declaration of Human Rights (1948), European Convention on Human Rights (1950), Charter of Fundamental Rights of the European Union (2009). There is a literary position from 19th century which says, even if there is lack of regulation, it cannot be questioned, that freedom of assembly is free for everyone, not just for those who have political rights. T. Drinóczi and J. Petrétei, ‘a gyülekezési jog a Magyar Köztársaságban’, 1 Jura (2002), fn. 13th – Cf. I. Szikinger, ‘A gyülekezési jog szabályozásának mai kérdései’, 1 Új rendészeti tanulmányok (1996), p. 21, I. Szikinger, ‘Gyűléshatár’, 1 Fundamentum (2002) – points the Belgian Constitution of 1831. Drinóczi and Petrétei, p. 22.

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Constitution of 1975 and the Portuguese Constitution of 1976 can be mentioned.7 The Greek Constitution lives with the phrase ‘the Greeks have the right’ (Οι ΈλλΗνες έχουν το δικαίωμα) to mark the subjects of freedom of assembly (Article 11). Monitoring that the Greek Constitution uses the same or similar phrases for almost every fundamental rights, moreover if the citizenship has significance, the constitution appoints with the word πολίτΗς (for instance: Article 4(3)-(5)-(7) and Article 29(1)). Because of the similarity it is reasonable to pay attention to the followings: Article 8 of the German Constitution (GG) uses ‘every German has the right’8 phrase, so in this case it seems like the document regulates the assembly as a legal right; on the other hand, the Law on Freedom of Assembly (VersG) and its jurisprudence is clear and unbroken about the fact that freedom of assembly is essential right for everyone.9 Article 45 of the Portuguese Constitution defines the subjects of assembly with the phrase ‘citizens’ (cidadãos). According to the legal rights (for instance: Article 4 – citizenship, Article 14 – protection of Portuguese citizens residing abroad, Article 15(2) – political rights, Article 33 – prohibition of Portuguese citizens’ expulsion, Article 121 – right to vote, Article 150 – right of eligibility, Article 164 – exclusive legislation objects), however the document uses the Portuguese citizens (cidadãos portugueses) phrase. Nevertheless the Portuguese regulation of the freedom of assembly does not provide Szikinger’s line which is preferred by Drinóczi and Petrétei. According to this issue it is reasonable to refer to former examples in which I mentioned that in a number of European constitutions freedom of assembly (same as other freedom rights) is regulated as the right of ‘citizens’10 or the right of those citizens who belong to the titular nation.11 From this fact the conclusion cannot be that assembly is the part of civil liberties, for the constitutions in the context of civil status use different, specific phrases.12

7

According to Drinóczi and Petrétei, fn. 14th, ‘Exceptions Include the 1975 Greek and the 1976 Portugese Constitutions’. Cf. Szikinger, 1996 (fn. 5) p. 21. 8 Commonly with freedom of association (GG Art. 9), free choice of place of stay (GG Art. 11), free choice of profession (GG Art. 12). 9 The German Law of Assembly, which was adopted in 1953, uses the ‘everyone has the right to’ phrase, but several regional Law of Assembly define freedom of assembly as a human right. 10 Art. 26 of the Constitution of Belgian Kingdom (‘Les Belges ont le droit’ and ‘De Belgen hebben het recht’), but the Art. 25 of the Constitution of Luxemburg has mainly same content. 11 See: Art. 88 of the Danish Constitution. 12 S. Ripke interprets the topic as a French-Belgian effect. See more: S. Ripke, Europäische Versammlungsfreiheit: das Unionsgrundrecht der Versammlungsfreiheit im Grundrechtsschutzsystem aus Grundrechtecharta, EMRK und gemeinsamer Verfassungsüberlieferung, Mohr Siebeck, Tübingen 2012, pp. 14-43.

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In my point of view the constitutions followed by the World War II basically defined freedom of assembly as a fundamental right – different wording but with the same conception.13 The conception of the Fundamental Law of Hungary matches the trend, and regulates freedom of assembly as a human right and lives with the ‘everyone has the right’ phrase. The subjects of the right are not purely the citizens of the state, according to the general jurisprudence none of the European states provide only for their citizens the right for assembly.

33.2.1

Peaceful Aspect

Same as the former Hungarian Constitution, the new Fundamental Law of Hungary provides freedom of assembly, but also requires the peaceful aspect of it. The regulation contained in the Fundamental Law of Hungary complies with the foreign and international jurisprudence: twenty-two of the examined legal documents protect exclusively the peaceful freedom of assembly.14 It is obvious that most of the international documents and the national constitutions recognize not simply the freedom of assembly rather identify and provide the peaceful aspect of it. It is true that the restless freedom of assembly can accomplish the dogmatic criterions15 of assembly; however it is surely not under the freedom of assembly’s constitutional protection. The peaceful aspect is inseparable and an essential element16 of the constitutional meaning of the freedom of assembly, not the special limitation17 of this right. It is appropriate to mention that Hungarian jurisprudence has not tried to give a handhold to the phrase of ‘peaceful aspect’ yet. In concrete cases the court established, that the certified behaviour did not lead to ruin the peacefulness of the event, therefore it was unlawfully cancelled; however clear requirements have not been laid down.

13 Constitutions are not differentiated according to the part-eligibilities, therefore they don’t have special provisions whether organisations enjoy the right of organization. 14 Besides the Belgian, Cyprus, Czech, Estonian Greek, Irish, Latvian, Lithuanian, Luxembourg, Maltese, German, Italian, Portuguese, Romanian, Spanish, Slovakian, Slovenian constitutions; UDHR, American Declaration of Human Rights (ADHR), ECHR, the Charter of Fundamental Rights of the EU, and the International Covenant on Civil and Political Rights. 15 See more: B. Hajas, ‘A gyülekezési jog tárgya: A gyülekezés fogalma’, 12 Új magyar közigazgatás (2009), pp. 36-48. 16 Rényi considers the same, when he mentions that ‘it would be a smaller mistake if the »peaceful-aspect« would be left out of law, not like the lack of prohibition of »armed« assembly. Peaceful assembly […] generally comes from the freedom of assembly’s right interpretation […]’, J. Rényi, A gyülekezeti jog – tanulmány a rendőri közigazgatás köréből, Lampel Róbert, Wodianer és Fiai, Budapest, 1900, p. 155. 17 Contrary to: Drinóczi and Petrétei, p. 29; M. Kniesel and R. Poscher, ‘Die Entwicklung des Versammlungsrechts 2000 bis 2003’, 7 Neue Juristische Wochenschrift (2004), p. 424.

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The requirement of peace relates to the whole event and it means violence is forbidden against others and material assets, moreover – as VersG uses – loss of ‘rebellious’18 behaviour is needed. According to the facts mentioned above the event cannot be stated ‘peaceful’ which contains violence – either against others or material assets. Conforming to the German jurisprudence it is enough to lose the peacefulness of the event if the violence is indispensable – not to mention the concrete violence.19 But this can be only awarded from case to case considering all the circumstances. (Masking the face – even of the masses – cannot support it.)20 To allocate the loss of peaceful-aspect, the overall impression of the event should be violent. One person’s or smaller part of participants’ violent behaviour will not lead to lose the peaceful-aspect, until mass of the participants take part in the breach of peace or someone assume solidarity with them. For instance the people, who do not take part in the breach of peace, close the way from police to protect the riots and they prevent the appropriate fight or support the riots.21 The passive introspection of the participants cannot be considered as taking part in solidarity.22 The target of violence is irrelevant, so if there’s violation against person or object it can state the loss of peaceful-aspect even if it is directed to the participants of the event. However the violence is caused not by the participants, loss of peaceful-aspect cannot be stated. It is understood that the most important attitude of loss of peace is physical violence which is committed by the participants of the event and it is against person or object.23 Demonstrations do not lose the peaceful-aspect if participants live with freedom of expression in a very direct way – for instance about the police or government – because

18 VersG § 5. Nr. 3, § 13. (1) No. 2. 19 G.M. Köhler and C. Dürig-Friedl, Demonstrations- und Versammlungsrecht: Versammlungsgesetz mit Auszügen aus Grundgesetz, StGB, StPO und OWiG, Polizei- und Ordnungsgesetze und Bannmeilengesetze der Länder, Textausgabe mit Erläuterungen, C.H. Beck, München, 2001, Art. 8. GG number of margin 16. 20 A. Dietel et al., Versammlungsgesetz, Kommentar zum Gesetz über Versammlungen und Aufzüge, Heymann, Köln – München 2008) § 1, number of margin 14. 21 R. Keplinger, Versammlungsrecht, Kurzkommentar zum Versammlungsrecht samt Judikatur, Linde, Wien 2002, p. 38. 22 The Constitution Protection Office issued a message in autumn of 2006, in which it warned the citizens about the possible criminal sanctions according to the passive participation in unlawful activities (psychical accessory). For the summary of the Ombudsman’s test (OBH 4583/2007) according to the topic see: B. Hajas (Ed.), Gyülekezési jogi projekt [ÁJOB project booklets, 2009/1.], Budapest, Országgyűlési Biztos Hivatala 2009, p. 91. 23 According to the topic it is appropriate to mention that the guiding phrase is not in the criminal meaning (‘violence’, ‘violent behaviour’), rather in the vulgarly meaning: ‘actual violence’. It turns out, that the possibility of violence is not enough. The use of violent, offensive or degrading phrases, will not lead to the loss of peaceful-aspect, whether it is on the placards, or participants shout them. So it might be frightening, but it will not lead to the loss of peaceful aspect, if participants shout: ‘Get armed! Get armed!’

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it is not lucky to yell at the police, freedom of political expression is not forbidden, it is part of these events.24 The requirement of peacefulness applies to the demonstration’s measure, not the purpose or object; therefore a demonstration will not become restless, if participants endanger public policy, social peace or damage peace – against a neighbour country declaring war – with their requirements. The criteria of peaceful aspect does not mean that the demonstration has to be free from feelings, conflicts or anger with passengers and the loud debates of the event will not make it restless. Although the demonstration was announced, restless assembly cannot be under the protection of Article VIII of the Fundamental Law of Hungary – by contrast, not announced but peaceful demonstrations. Restlessness is not a synonym of infringement, not even of impact of criminal law, so infringement or crime commission will not lead in particular to the lack of peaceful-aspect.25 As a summary and simplification, the requirements of assembly’s peaceful-aspect is the prohibition of violent behaviour.26 The loss of peaceful-aspect is not causing any penalty, however restless demonstrations cannot stand under the protection of the Fundamental Law of Hungary. (Ever since this method was suitable if an originally peaceful demonstration lost its aspect and it could result disband.27 However disband is the final device, if other methods are useless to keep the demonstration’s peaceful-aspect.28). There is a strong connection between peaceful-aspect, prohibition of armed forces appearance and requirement of unarmed appearance. The parliament did not capture this criteria as important to fix it in the previous Constitution of Hungary or in the new Fundamental Law – neither in 1989, nor in 2011. However, eleven European or NorthernAmerican constitutions29 and HRAC gives protection to the unarmed, weaponless assembly. It would be incompatible with the peaceful-aspect – as a grammatical interpretation – that participants of the demonstration would take part armed. According to Article 12(2) of the Law of Assembly – in absence of constitutional provisions – this trivial prohibition is repeated, moreover Article 14(1) second indent defines as a cause of disband if ‘partici-

24 Supreme Court judgment No. Kfv. 39.077/2006/6. In the actual issue anti-governmental demonstrators were aware of their event’s lawfulness and the unlawful procedure of Police; and they started to offense the acting policemen. 25 However it does not mean, that demonstration should not be disbanded, if it carries out a crime or call for a crime. 26 Dietel et al., op. cit. § 1, margin number 140. 27 Decision of the Constitutional Court No. 55/2001 (XI. 29) AB, ABH 2001, p. 442. 28 BVerfGE 69, p. 315. 29 Thus Belgian, Danish, Greek, Irish, Lithuanian, Luxembourg, German, Italian, Portuguese, Romanian and Spanish constitutions.

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pants of the demonstration appear by displaying a deadly weapon or by carrying a deadly weapon’. Article 15 lit. b) of the Law of Assembly also defines ‘by displaying a deadly weapon’ and ‘by carrying a deadly weapon’ phrases in appearance. As for the experiences it is almost sure that participants’ appearance ‘by displaying a deadly weapon’ or ‘by carrying a deadly weapon’ will lead to the loss of peaceful-aspect. The Law of Assembly’s ministerial justification mentions ‘to keep the peaceful and legal aspect of the demonstration, the Proposal – same as the international jurisprudence – prohibits the ‘by displaying a deadly weapon’ and ‘by carrying a deadly weapon’ appearance […].’30 The purpose of prohibition of carrying a weapon is to protect the process of the demonstration from violence and to minimalize the danger. On one hand, this is necessary because of the protection of public policy and public security. On the other hand, the communication law aspect of freedom of assembly protects free communication: either individual behaviour or social process. It is easily acceptable that in the shadow of violence, free communication cannot be recognized. A question appears in this context: why did not Fundamental Law of Hungary take the weaponless criteria as a basic phrase of freedom of assembly according to the mentioned foreign examples? It is almost impossible to define the purpose of the constitution-makers, for example Draft Resolution No. H/2057 of the Parliament does not contain any referrals to Hungarian Constitution’s provisional principles and during the adoption of the Fundamental Law of Hungary it was not a question of interests, and it was not mentioned either in the ad hoc committee work, or in the Parliament’s debate.

33.2.2

‘Recognizes and Provides’ versus ‘Has the Right to’

It is outstanding, that the former Hungarian Constitution used ‘recognizes and provides’ terminus, while the new Fundamental Law of Hungary mentions ‘has the right to’ phrase in Article VIII. This regulation method is also known in foreign constitutions and international documents, for those regularly use ‘has/have the right to’,31 ‘eligible’,32 ‘shall apply in’,33 ‘it is free to’34 etc. forms. It is a question if the provision’s meaning changed comparing to the old Hungarian Constitution, namely: did Article 62(1) have the meaning which is not equal with the Fundamental Law of Hungary – not only Article VIII (1)! – provision? The term ‘recognizes’ does not have this differentiated meaning.

30 C.f. the detailed explanatory memorandum to Art. 12 of the Law of Assembly. 31 The EU Charter of Fundamental Rights, ADHR, UDHR, Estonian, German, Portuguese, Danish, Finnish, Belgian, Italian, Greek, Lithuanian constitutions. 32 Thus in the Danish and Finnish constitutions. 33 See: Canadian and Cyprus constitutions. 34 E.g.: Romanian and Spanish constitutions.

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We have to scan the question of the lack of the term ‘provides’: does Article VII(1) of the Fundamental Law of Hungary replace the relevant provision of the previous Hungarian Constitution, or is there any rule of the Fundamental Law which makes unjustified or unnecessary the previous regulation? The question is interesting, for seven European constitutions35 use the phrase ‘provides’ according to the practice freedom of assembly and the Latvian Constitution regulates the protection of freedom of assembly. According to Article I(1) of the Fundamental Law of Hungary, ‘[t]he inviolable and inalienable fundamental rights of MAN shall be respected.’ It shall be the primary obligation of the state to protect these rights. To ensure the basic human rights this provision regulates negative and positive behaviour of the state. On one hand the respect of fundamental rights obligates abstention36 – without determinate consignee, form everyone, from public body, from natural persons, from legal persons also –, on the other hand protection of fundamental rights shall be an active behaviour of the state. So the Fundamental Law of Hungary – according to every fundamental rights – regulates that every right has a subjective side (the chance to exercise the exact right, which needs to be respected by everyone) and an objective side, which means the obligation of the state according to the rights’ protection and application. In most of the provisions of the Fundamental Law, the obligation of the state’s protection and application of fundamental rights does not appear – notwithstanding Article 62(1) of the Hungarian Constitution. Article I(1) of the Fundamental Law of Hungary fills this gap, for it makes the protection of fundamental rights the object of general obligation of the state. As the Constitutional Court of Hungary pointed out in an early decision37: the state’s obligation is not finished with abstention from infringement of subjective fundamental rights, but also contains to take care and provide the conditions for the proper application. Human exercise their fundamental rights

35 Thus the Czech, the Irish, the Polish, the Luxembourg, the Swedish, the Slovakian and Slovenian constitutions. 36 Art. 8 of the former Constitution defined ‘shall respect’ as the mission of the state. 37 The Constitutional Court of Hungary in Decision No. 22/2012 (V.11) AB pointed that ‘whether the same provisions appear in the previous Constitution and in the Basic Law of Hungary it is useless to justify the transposed principles from early decisions, rather justification is needed where these principles are ignored’. However the Constitutional Court in its Decision No. II/3484/2012 AB highlighted that the provisions of the decision concerned are ought to be examined according to the 4th Amendment of the Fundamental Law in connection with the usability earlier resolutions. The Court stated that ‘the Constitutional Court of Hungary can only use repealed resolutions if they define them as a source; they shall refer to appropriate amount operational, textual parts or quote the arguments or principles. The justification and constitutional sources shall be knowable and verifiable in a democratic state governed by the rule of law, moreover legal security shall be transparent and followable. Public argument is the basis of the decision’s justification. The Constitutional Court of Hungary always examines the arguments’ usability form early resolutions from case to case, in the context of each, actual matter.’.

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‘You Could Have Put It More Politely’ – Remarks on the Constitutional Regulations of Freedom of Assembly in the context of their individual freedom and personal needs. On the other hand – besides the protection of subjective fundamental rights –, the state needs to ensure the life situations and values themselves also, they shall be protected according to other fundamental rights, not only related to the personal needs. For the state the protection of fundamental rights is part of maintenance and operation of the whole constitutional order. Having regard to other fundamental rights and constitutional missions, the state establishes the required legislation and organisation conditions; moreover it provides the most favourable interests of each rights promoting the consistency with fundamental rights. According to the holder of a fundamental right, and the criteria of the state, the fundamental right’s subjective and objective side may be different. In addition the topics of a subjective basic right’s protection, the state can define the same right’s objective side of it. This matter comes alive if the individual exercise of a freedom right does not seem endangered, but overall the freedom or the life situation guaranteed by the basic right is threatened.38

From Article I(1) of the Fundamental Law of Hungary comes the obligation of the fundamental rights’ protection, which requires a system of criteria for the area of these rights. It contains the obligation of regulation (establishment of organizational and proceeding securities), the obligation of financial support, and the obligation of existing or required protection of institutional forms of the Fundamental Law of Hungary from the aspect of fundamental rights’ enforcement (and also residence from the operational interference), and the protection of the forums are also part of the obligation where impairment of fundamental rights can be remedied, but for the state it’s a general obligation to protect the whole system of fundamental rights (as a system of values). It should be pointed out that objective obligation of fundamental rights’ protection supposes the existing of the rights’ subjective side, but typically do not impose subjective rights on the side of individuals, therefore they cannot be directly enforced. The state’s obligation for fundamental rights’ protection is wider than ‘the possibility of operation’, the appropriate fundamental right shall be taken under protection generally, in an abstract way as a value. In principle, every fundamental right – as ‘constitutional values’ – has an institutional side, but as a priority, the protected values contain the life and human dignity, the pluralism of opinions, or the freedom of conscience. Moreover it comes from the fundamental right’s nature, that what kind of and how much state obligation is needed to exercise it. As the Constitutional Court of Hungary pointed out in Decision No. 30/1992 (V. 26):

38 Decision No. 64/1991 (XII. 17) AB, ABH 1991, pp. 297, 302-303.

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[b]esides the subjective side of the individual freedom of expression, Article 61 of the Constitution mentions the obligation of the state is to provide the origin requirements and sustainable operation of the democratic public. The freedom of expression’s objective side does not only refer to freedom of the press, educational freedom, etc., but refers to the side of institutional system, which puts the freedom of expression generally next to other protected values. Therefore freedom of expression’s constitutional borders should be defined to take into account on one hand the expresser’s subjective right, on the other hand the interests of the public – origin and free figuration – from the aspect of democracy. Decision No. 55/2001 (XI. 29) AB of the Constitutional Court stated that there are positive obligations of the state according to the peaceful freedom of assembly to provide the stability of this institution – as a prior fundamental right of communication. Freedom of assembly is also needs to be protected from the state’s unauthorized intervention and for instance from the demonstrator who is against the demonstration or disorderly people. The Constitutional Court of Hungary pointed that the authorities have to provide the lawful demonstrations, even with force, if it is necessary and have to prevent from other’s disturbance. It is appropriate to mention that comparing the objects of other communication rights, assembly cannot reach the level of ‘institutionalness’ like freedom of the press, for its limited in time. That is why my opinion is that Article I(1) of the Fundamental Law – and also Article 1 of the Law of Assembly – protects the exercisers of freedom of assembly (organiser, manager, director, participant), not the assembly itself. The European Court of Human Rights in Strasbourg – also referred by the case-law of the Constitutional Court of Hungary – mentioned that the limit of the peaceful freedom of assembly cannot be the possibility of a violent demonstration against the peaceful one, or the accession of extremes whose purposes are not peaceful, or the extremes appearance with violent intentions. The peaceful freedom of assembly shall be protected, moreover the exercise of it must be provided even if there is the possibility that demonstration will turn unrest,39 reasons beyond the organisers. After all, it can be stated that the different definitions used by Article VIII(1) of the Fundamental Law of Hungary – arising from its Article I and inspired by the jurisprudence of the European Court of Human Rights – will not bring change according to the obligation of state’s institutional protection, the jurisdiction of freedom of assembly in connection with mission of the state.

39 Christians against Racism and Fascism v. the United Kingdom, No. 8440/78, Commission decision of 16 July 1980, Decisions and Reports 21, p. 138.

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The provisions of the Fundamental Law of Hungary do not mention – notwithstanding the resolution of the Parliament about the new constitution’s preparation – that freedom of assembly’s rules or constitutional securities shall be regulated by qualified majority. But the reasons of this change do not turn out either from the explanatory memorandum of the Fundamental Law of Hungary, or from the discussions in the Parliament. It is notable that András Jakab’s own constitutional draft40 also proposed to leave out Article 62(2) of the previous Hungarian Constitution, for the object would not contain the qualified majority regulations, because the ex post review of conformity with the Fundamental Law of Hungary in the Constitutional Court’s procedure is able to keep the level of the protection of fundamental rights. [Katalin Szili’s legislative proposal (T/2628) used the regulation of the Hungarian Constitution without any changes.] Basically I agree with András Jakab that the Constitutional Court can keep the level of protection of fundamental rights, however I would also mention the jurisprudence and the effect of the European Court of Human Rights to Hungarian judicial interpretation of the freedom of assembly – it has the same importance.

33.2.3

Unexploited Opportunities

Another exciting topic is what kind of regulation opportunities have been unused by the Parliament according to Article VIII? Limitation of Constitutional Reasons If we have a look at the foreign constitutions and international law documents, we experience that freedom of assembly’s regulation is differentiated; the basic requirements and limits are also stated, not like the ‘minimalist’ Fundamental Law of Hungary. Accordingly, it follows that it could be possible to make special rules to limit freedom of assembly not only because of another fundamental right; so constitution-makers could limit it with the mediation of another institution with underlying instruments, even if it is only an abstract value. According to my analysis, out of thirty documents, twenty contain at least one reason to limitation, or authorization of legislation to limitation. We can say, it is an average tendency, that a number of provisions can limit freedom of assembly – besides other people’s rights and freedom – because of public policy,41 including this we can mention: public morality, public security or traffic. Unfortunately regulations in force have a lot of 40 J. András, ‘évi … törvény. A Magyar Köztársaság Alkotmánya. Magántervezet, szakmai álláspont kialakítása céljából. PPKE JÁK’, 2011, január 10, www.jak.ppke.hu/tanszek/alkotm/letolt/alkt.pdf. 41 About the term of public policy, see: K. Karsai, Az európai büntetőjogi integráció alapkérdései, KJK-Kerszöv, Budapest 2004, pp. 204-207, moreover K. Karsai, ‘A közrend európai (jogi) fogalmáról’, in Gy. Gaál and Z. Hautzinger (Eds.), Rendészeti kutatások – a rendvédelem fejlesztése, Pécsi Határőr Tudományos Közlemények XII, 2011, p. 29.

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challenges according to the presence of limitation clauses. The so-called prohibition cause ‘the traffic cannot be provided on another itinerary’ is a public security clause in most of the cases; and Police often prohibits demonstrations with less participators on the same itinerary according to bigger ones.42 In my opinion it could be greater to approach from the other side the relation between public policy and traffic policy; namely which level of limitation of traffic can endanger public policy or public security.43 It is reasonable to mention that prohibiting demonstrations which seriously endanger public policy or public security – whether or not the effect on traffic – can be needed and proportional limitation of freedom of assembly. However, the Hungarian references refrain from public policy clauses. This limitation of freedom of assembly can provide a higher standard44 according to and besides the Brokdorf decision of the German Constitutional Court.45 According to my opinion, if the Fundamental Law of Hungary had defined the most important regulation points of freedom of assembly, it would have been a useful for the legislator to recodificate the topic. It is notable that international and regional human rights documents, to which Hungary is a party, allow freedom of assembly’s legal limitation according to abstract values without any constitutional provisions.46 ‘Without Permission’ According to my analysis, one third of the documents regulate that it is not required for exercising freedom of assembly to allow47 or announce48 the demonstration. Latvian, Italian and Spanish constitutions prominently regulate the need of announcement of the 42 For the first time the Commissioner for Civil Rights in AJB 6021/2009. report had a critics about the jurisdiction of the ‘same itinerary’ which he mentioned as inconsistent; and laid down that measures of the Police caused maladministration according to absence of discrimination in connection with the prohibition of demonstrations on Andrássy Avenue and on Hero’s Square. The ombudsman’s statement could be complemented with that, the judges’ jurisdiction seems to be similarly inconsistent. 43 H. Hofer-Zeni, ‘Versammlungsfreiheit in Österreich’, 11(13) Europäische Grundrechte Zeitschrift (1984), p. 360. 44 BVerfGE 69, p. 315. 45 In Hungarian summary: P. Sólyom, ‘Demokrácia és gyülekezési szabadság’, 1 Fundamentum (2007), pp. 1213. 46 Art. 12(2) of ECHR stipulates: No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State. ICCPR Art. 21. second sentence: No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.. 47 See: Belgian, Czech, Danish, Finnish, Luxembourg, Portuguese, Spanish, Slovakian constitutions. 48 According to the German Constitution, freedom of assembly can be practiced without notification or permission. (According to the GG., outdoor demonstrations can be limited, and VersG. prominently requests these events’ notification.)

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demonstration. The lack of provision in the Fundamental Law of Hungary is not causing any regulation and jurisdictional difficulties, for Decision No. 55/2011 (XI. 29) AB of the Constitutional Court, that obligation for announcement is only needed if the demonstration is held on public ground – public ground means: road, street, square according to Article 15 lit. a) of the Law of Assembly. The availability for everyone means that the participants and other people have to be capable of using public grounds. The opportunity of using public grounds is also a requirement of another fundamental right called freedom of movement. Freedom of movement’s most frequent scene is road and public ground. The practice of the Hungarian Constitutional Court is consistent about that state’s obligation to provide and to protect fundamental rights, and it is not finished with abstention from infringement; obligation also contains for the state to provide the requirements for application of these rights. To prevent freedom of assembly and freedom of movement from any conflicts, authorities shall have access by legislation to provide both of the fundamental rights’ application and if it is not possible, the state’s obligation is to limit one of them only on the most necessary level. After all, it is reasonable for authorities to get information in time about demonstrations held on public ground, and announcement in advance also serves this purpose. I can partly agree with the Constitutional Court’s analysis, because announcement is essential for freedom of assembly’s exercise, not for freedom of movement. We can find interesting regulations in some European constitutions. At first it gives total freedom for freedom of assembly and at the second look the constitutions define special regulations for demonstrations held on public grounds, or give authorization for special regulations. According to this, in the Belgian Constitution, outdoor demonstrations are under the regulation of the Law of Police, then Greek Constitution allows presence for policemen during outdoor events, last but not least the Czech and Slovakian Constitutions only allow presence of police during demonstrations held in public places.

33.3

Summary

After having taken a look at the content of the constitutional regulation – according to the international documents and the case-law of the Hungarian Constitutional Court – it does not bring any change except for the lack of so called two-thirds of fundamental rights. The lack of provisions that could make Article VII complete, does not cause any jurisdictional difficulty; it could have made sense about the regulation principles of the new Law of Assembly, about the institution’s development, and about definition of legislation’s notion. It is notable that the legislator chose the shortest, conflict-less choice of words about the definition which is equivalent to other countries’ constitutions; it is a ‘security’ definition, saving it from home and foreign criticism.

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Since the Fundamental Law of Hungary is in force, the Constitutional Court of Hungary used Article VIII(1) at once in a decision based on a constitutional complaint initiated by political party ‘Lehet Más a Politika’ (‘Politics Can Be Different’).49 During these two years there was not any relevant problem for which the Constitutional Court of Hungary should have changed its practice relating to the freedom of assembly.

49 Decision No. 3/2013 (II.14) AB of the Constitutional Court.

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Agnes Lux*

34.1

Introduction

Article XVI of the new Hungarian Fundamental Law (Constitution) contains a special provision on children’s rights, reading: ‘Every child shall have the right to the protection and care necessary for his or her proper physical, intellectual and moral development.’ The provision sets forth a crucial task and obligation for all parents, caretakers, but requires also the commitment from the side of the state. Since there is no special ombudsman for children’s rights in Hungary, the Parliamentary Commissioner for Civil Rights acts in this quality on the basis of Art. 11 of Act XXXI of 1997 on Child Protection. The Fundamental Law and Act CXI of 2011 on the Commissioner for Fundamental Rights (Act on CFR) entered into force on 1 January 2012. In accordance with the provisions of this act, the single institution of the Commissioner for Fundamental Rights pays special attention to the protection of the rights of children, the rights of nationalities living in Hungary, the interests of future generations and the rights of the most vulnerable groups. It is no surprise that children usually do not turn directly to the ombudsman (10-12% of all submitted complaints – the total number of complaints are approximately 8000/year – are related to children’s rights, submitted mainly by adults (parents/professionals). Beginning with 2008 the Commissioner fulfilled this role more effectively by launching a special, proactive method with annual children’s rights projects dedicated to special issues. In 2008 the ombudsman focused on awareness-raising concerning children’s rights, in 2009 on children’s right to protection against violence, in 2010 on children in care, in 2011 on children’s right to the highest possible standard of physical-mental health, in 2012 on child-friendly justice and in 2013 on the right to a healthy environment.1 In Hungary today, approximately 200 000 children are registered as at risk and thousands of children are taken into child protection care. Tens of thousands of children and juveniles are in the criminal justice system and about 6000 children/year become the victim * 1

PhD candidate, Deputy-head of the Equal Opportunities and Children’s Rights Department, Office of the Commissioner for Fundamental Rights. E-mail: [email protected]. The results of the inquiries on the above mentioned dedicated annual working programs were published in project-books available onthe Office’s website, www.ajbh.hu/projektfuzetek;jsessionid=459FD6FA19C29FD02 CB5F4D1B85F2D42.

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of a violent crime. In this context, numerous questions arise. Can the child protection system offer an effective response in case of abuse? And how are professionals prepared to deal with children in general, especially with victims, offenders, witnesses or children of parents undergoing a divorce. Under what conditions and how are children heard or interrogated, what awaits them at a police station, juvenile correctional center or in a penitentiary institution? Through which channels and from whom they may seek help and assistance in a closed facility if they have problems with one of the inmates or nurses or if they simply need information, legal or other advice? What are the prospects of a young person who committed a crime or misdemeaneour due to his/her vulnerable situation and was sanctioned by the state primarily with criminal law instruments? In 2012, the Ombudsman, based on the Council of Europe’s Guidelines on Childfriendly Justice,2 started to explore the gaps between law and practice by conducting several inquiries resulting in lengthy reports on the fulfillment of international obligations concerning child-friendly justice3; the functioning of the victim support system4; the general evaluation of the juvenile justice system (criminal, civil and administrative procedures) from the aspect of children’s rights5; mediation and other forms of restorative justice6; child-focused training of justice professionals7; the situation of unaccompanied minors8 and on-site inquiries regarding penitentiary institutions for juvenile offenders.9 The Ombudsman discussed the experiences gathered on several occasions with the representatives of national civil organizations (Family Child Youth Association, Blue Line Child Crisis Foundation, UNICEF National Committee), international NGOs (Eurochild, Eurochips, International Juvenile Justice Observatory, Children’s Rights International Network) and government officials from the National Institute of Criminology and the Crime Prevention Department of the National Police Headquarters.10

2

Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice. Adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers’ Deputies. https://wcd.coe.int/ViewDoc.jsp?Ref=CM/Del/Dec(2010)1098/10.2abc&Language=lanEnglish&Ver=app6& Site=CM&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383. 3 Report No. AJB 3070/2012. 4 Report No. AJB 2617/2012. 5 Report No. AJB 2324/2012. 6 Report No. AJB 2986/2012. 7 Report No. AJB 2614/2012. 8 Report No. AJB 7120/2009 and AJB 733/2012. 9 At Tököl – Report No. AJB 2323/2012; at Pécs (Baranya county) – Report No. AJB 4495/2012; at Kecskemét (Bács-Kiskun county & special mother-baby ward) – Report No. AJB 3616/2012; at Szirmabesenyő – Report No. AJB 3704/2012. 10 Through its professional and financial support the Council of Europe made the organization of an international conference titled ‘Child-friendly justice – from Hungary to Europe’ on 22 November 2012 in the Office of the Commissioner for Fundamental Rights. Representatives of the European Commission, the Council of Europe, the UN CRC Committee and the EU Fundamental Rights Agency and highly recognized national experts attended the event.

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Since there is no opportunity to give an exhaustive summary about the hundreds of cases per year concerning children’s rights, in the following overview I will briefly present the status and tasks of the Hungarian Ombudsman, turning then to the most relevant international law related issues in the ombudsman’s practice of the recent years, namely the comprehensive investigation on child-friendly justice and the latest report of Hungary to UN CRC Committee.

34.2

Status and Tasks of the Commissioner for Fundamental Rights (Ombudsman)

In accordance with Article 1(2) of the Act on CFR In the course of his or her activities the Commissioner for Fundamental Rights shall pay special attention, especially by conducting proceedings ex officio, to the protection of a) the rights of children. The work and the mandate of the Commissioner for Fundamental Rights and his Office are determined by Article 30 of the Fundamental Law of Hungary and the Act on CFR. The Commissioner delivers an opinion on the draft rules of law affecting his/her tasks and competences; on long-term development and land management plans and concepts, and on plans and concepts otherwise directly affecting the quality of life of future generations; furthermore, the Ombudsman may make proposals for the amendment or the adoption of laws affecting fundamental rights and/or the recognition of the binding nature of an international treaty. The Commissioner surveys and analyzes the situation of fundamental rights in Hungary, and prepares statistics on those infringements that are related to fundamental rights. The Commissioner submits his/her annual report to the Parliament, in which he/she gives information on his/her fundamental rights activities and gives recommendations and proposals for legislation or possible amendments. The Parliament shall debate the report in the course of the year of its submission. (In reality, since 2009 the Parliament has failed to debate the Ombudsman’s report). As a new mandate, the Commissioner for Fundamental Rights may initiate the review of legal acts by the Constitutional Court as to their conformity with the Fundamental Law. Furthermore, the Commissioner participates in the preparation of national reports based on international treaties relating to his/her tasks and competences, monitoring and evaluating the enforcement of these treaties under Hungarian jurisdiction. The Parliament elects the Ombudsman (upon nomination by the President) and his/her Deputies for a six-year term. Anyone may turn to the Commissioner, if his/her fundamental rights were infringed or in case of an imminent danger thereof, through the activity or

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omission of the public and/or other organs performing public duties. The Commissioner for Fundamental Rights may also conduct ex officio proceedings for an inquiry into specific misconduct affecting an unidentifiable group of natural persons or a comprehensive inquiry related to the enforcement of a fundamental right. In the course of his/her inquiries, the Commissioner for Fundamental Rights – may request data and information from the authority subject to inquiry on the proceedings it has conducted or failed to conduct, and may request copies of the relevant documents, – may invite the head of the authority, the head of its supervisory authority or the head of the organ otherwise authorized to do so to conduct an inquiry, – may participate in a public hearing, and – may conduct on-site inspections.

34.3

Special Reports on Child-Friendly Justice with International Law Aspects

In 2012, within the framework of the Children’s Rights Project and following the agendas of the European Union, the Council of Europe, the European Network of Ombudspersons for Children (ENOC)11 and the special programme on the topic launched by the Ministry of Public Administration and Justice a Project on Child-Friendly Justice,12 the Commissioner has focused on problems concerning child friendly justice. Choosing this topic was very reasonable since thousands of children may get involved with justice systems, whether as victims, defendants, witnesses, at risk, taken into care or as criminal offenders. Since 2010 the Ombudsman is the national focal point of the Council of Europe,13 the most important regional organization dedicated to the protection of human rights. The Council of Europe plays a leading role in defending children’s rights, especially since the transversal programme ‘Building a Europe for and with children’14 was launched in 2006 in response to a mandate resulting from the Third Summit of the Heads of State and Government of the Council of Europe (Warsaw, 2005). The Council of Europe’s Strategy on the rights of the child 2012-2015 proposes a vision for the Council of Europe’s role and action in this field, taking into account the progress achieved during the previous policy 11 See ENOC Position Statement on ‘The rights of children/young people in conflict with the law’, www.crin.org/docs/FileManager/enoc/ENOC_position_statement_on_the_rights_of_children_in_conflict_with_the_law.pdf. 12 http://gyermekbarat.kormany.hu/. 13 The Council of Europe, based in Strasbourg (France), now covers virtually the entire European continent, with its 47 member countries. Founded on 5 May 1949 by 10 countries, the Council of Europe seeks to develop throughout Europe common and democratic principles based on the European Convention on Human Rights and other reference texts on the protection of individuals. 14 www.coe.int/t/dg3/children/.

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cycles, the needs expressed by governments and the challenges identified by the international community. In the current strategy the programme focuses on the following four strategic objectives: 1. promoting child-friendly services and systems; 2. eliminating all forms of violence against children; 3. guaranteeing the rights of children in vulnerable situations; 4. promoting child participation. In 2010, the Council of Europe adopted the Guidelines on Child-friendly Justice intended to enhance children’s access to and treatment in justice; a specialty of these guidelines is that children an young people were also involved in the drafting process. The Guidelines formed the basis of the ombudsman’s investigations. The Guidelines are a set of comprehensive and very concrete rules that help Governments make sure that children are treated properly by and in the justice system. The rules have to be applied to everyone under 18 years. They apply whenever children come into contact with the justice system, for example when they break the law, when their parents get divorced and when someone who has abused a child is sanctioned. Child-friendly justice means in Council of Europe terms that decisions are made about children in a way that respects their rights before, during and after any procedure. Decisions should be made quickly, taking the child’s age and needs into consideration, taking the child’s views seriously and respecting his or her privacy. Children and their parents should be given information about the child’s right to be treated fairly and properly. Information and advice should be explained to the child in a way that he or she can understand it, with due consideration to the child’s background. The main principles of child friendly justice are as follows: 1. Participation: Governments must make sure that children know their rights, and know how to get in touch with those who can help them. Children have the right to be heard in decisions that affect them, and adults must take children’s views seriously. 2. Best interests of the child: When decisions are being made about children, the most important thing is what is right for them. Officials must also listen to what children have to say. They should make sure that children’s rights are respected, and take into account all their needs. Judges usually take decisions about children, but they should be assisted by others – such as like psychologists and social workers. 3. Care and respect: Children must always be treated with care and respect, taking into account that they are all different. 4. Equal treatment – Non-discrimination: Children must all be treated equally, regardless of origin, social class, religion or language. Children who have disabilities, are homeless or do not live with their parents, members of minorities or immigrants may need special help.

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5. Rule of law: Children have rights in the legal system; they should be treated fairly. If they are in trouble, they should have access to a lawyer. Children have the right to complain about their treatment to an independent forum. The UN Convention on the Right of the Child (UN CRC) also defines legally binding obligations related to child-friendly justice, as follows: – Article 1. Every human being is a child under the age of 18; – Article 3. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration; – Article 37. Deprivation of liberty must only be a last resort resolution (for the shortest possible period)15; – Article 40. The right of every child alleged as, accused of, or recognized as having infringed criminal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society. At this point we must also mention the 10th General Comment of the CRC Committee (2007),16 which states: the reaction given to an abuse of law committed by a child shall be proportional with the age, maturity, necessities and circumstances of the child, taking into account the long-term interests of society (education, reintegration, not pure punishment).

34.4

How Does the Hungarian Justice System Meet to the Council of Europe’s Child-Friendly Justice Model Requirements?

The ombudsman launched a comprehensive, ex officio investigation17 monitoring the implementation of the child-friendly justice model’s requirements in Hungary. He requested the Minister of Public Administration and Justice to provide relevant information with the help of the Inter-ministerial Working Group for Child-friendly Justice and all competent ministries. In addition, the Commissioner addressed a number of NGOs and juvenile 15 The Commissioner for Fundamental Rights in a press release (published in May 2012) expressed that he is deeply concerned about the draft of the Hungarian Criminal Code decreasing the minimum age of criminal responsibility (MACR) from 14 to 12 years in some cases, which may result also deprivation of liberty if they will be found guilty. 16 General Comment No. 10. (2007) Children’s rights in juvenile justice. CRC/C/GC/10 25 April 2007, www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf. 17 Report No. AJB 3070/2012.

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correctional facilities and penitentiary institutions. The addressed organs received the same questions which had been compiled in compliance with the provisions of the UN CRC and the Council of Europe Guidelines on Child-friendly Justice. According to the main findings of the Ombudsman, the UN directives and Council of Europe recommendations clearly indicate that a complex, inter-professional, holistic view is required for the treatment of the problematic behaviour of children and juveniles. Criminal justice is just one, but not the most important element of the complex system in which the problem must be dealt with. Juvenile delinquency cannot be fought by the justice system alone. Cooperation between the health care, education, social and welfare service systems as well as the justice systems is inevitable. According to the Ombudsman, in the course of the proceedings and the enforcement of the decisions of the authorities, it is quintessential to elaborate a multidisciplinary common assessment framework for the lawyers dealing with children, psychologists, policemen, social workers, etc. to ensure implementation of measures and circumstances that best suit the age, mental and physical conditions of the child. The absence of the above gives rise to the direct jeopardy of the child’s right to protection and care. As indicated by NGOs, in the course of age assessment in asylum and alien control proceedings the multidisciplinary approach is not applied in all cases. Age assessment of seeking asylum occurs in practice if the authority finds that the age declared by the asylum seeker is doubtful. In practice, age assessment involves X-ray examination, collarbone or hand bone examination. However, there are no examinations carried out by psychologists and social workers, which stands in stark contrast to the widely accepted international professional standpoint. The Commissioner concluded that in the course of age assessment of unaccompanied minors, avoiding examinations carried out by psychologists and social workers, corresponding to the international practice and considering psychic maturity and ethnical and cultural aspects as well, infringes the enforcement of the highest interest of the child and the provisions of the Fundamental Law on the adoption of the generally recognized rules of international law and the enforcement of the child’s right to protection and care necessary for his or her proper physical, intellectual and moral development. The ombudsman asked the Minister of the Interior to consider establishing an Expert Working Group in order to adopt legislation corresponding to international. In compliance with Council of Europe Guidelines, all experts working with children must receive an interdisciplinary training on the rights and necessities of children of different ages and the adjustedment of the procedures to children. In the course of the inquiry, the Commissioner concluded that the absence of regular, interdisciplinary (communication, legal, psychological, child protection, sociological) training of experts working with children (policemen, prosecutors, judges, defence lawyers, etc.) impedes the full enforcement of children’s rights. The Guidelines set out that the justice organs and other authorities have to provide the appropriate information corresponding to the child’s age and maturity both at the

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beginning and in the course of the proceeding as well. As indicated by NGOs and some correctional facilities, the information provided did not take the age of the children and juveniles into consideration. The information is formal and experts have not been convinced if children really understood the information provided to them. In their experience, the experts do not know the cognitive abilities and psychic characteristics of the age groups and they have not been prepared for how they should communicate with children. According to information provided by the experts, such knowledge is completely missing from the curriculum of the institutions preparing them for their carreer. According to the Commissioner, to ensure the provision of information corresponding to the child’s age and maturity, it is quintessential to train experts coming into contact with them in the framework of a comprehensive obligatory training. The protection of the child’s privacy and personal data in the various proceedings is an important principle of the Guidelines. This means that especially in the media no information or personal data shall be published or made public from which directly or indirectly the personal identity of the child can be established, including photos, detailed descriptions about the child or his or her family, audio and video recordings. In compliance with the rules in force, the right of the press to information is always evaluated together with the right to the protection of personal data of the person affected. These rules notwithstanding, the website of the Media Council of the National Media and Infocommunications Authority features several cases from 2012 where minors’ human dignity was infringed through the media. The Media Council analyzed all such infringements in detail and applied appropriate sanctions. Considering that an inquiry into the operation of commercial media providers does not pertain to the competence of the Commissioner, the Ombudsman could only issue proposals, for example addressed to the National Media and Infocommunications Authority to consider organizing training for the media providers to familiarize them with legal provisions on broadcasting children and juveniles in the media. In the context of victimization, several respondents mentioned the shortcomings of the children’s psychiatric and psychological care and the absence of the treatment of the injured in cases of abuse. They pointed out the shortcomings of the operation of the child protection signaling system and that there is currently no methodical guidance or training system which would provide justice experts with suitable information as to how a child may be interviewed successfully keeping in mind the imperative of causing as little harm as possible. In compliance with the Guidelines, States shall make efforts to avoid turning to the court, bringing children rehabilitation and the restorative approach to the fore. However, this is not guaranteed by the misdemeanour procedure in force. In the interest of children’s welfare, their appropriate education and development, institutions ensuring restoration should be applied in the case of massively occurring minor infringements. Extension of

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mediation to misdemeanours would not only efficiently contribute to the re-adaptation of juveniles to society but would also achieve coherence with respect to restorative justice between misdemeanour proceedings and criminal proceedings, accelerating proceedings and decreasing the burden of the judges, while contributing to the defendant’s fast reimbursement for his or her damage. The absence of the elements of restorative justice in the framework of misdemeanour proceedings infringes the principle of observing the child’s highest interest, creating the imminent danger of the infringement of the child’s right to protection and care. Beyond Article 12 of the UN CRC, the child’s right to express his views as well as his right to be heard is set out as an important principle in the Council of Europe Guidelines. The use of a language corresponding to the age and mental development of the child, the so-called child-friendly language, the assurance of a child-friendly environment, the application of child-friendly interrogation techniques, restricting interviews to as few occasions as possible, with the best possible training of interviewing experts are all set out in the Guidelines. Experts claim that at the same time it is not the infringement of the freedom of expression that constitutes the biggest problem but the appearance of this right as an obligation, in some cases in the form of repeated testimonies. Experts do not have sufficient knowledge and appropriate training for interrogating child perpetrators/victims, they are not aware of children’s necessities. There is no suitable methodological guidance or training system which would prepare justice experts for how a child can be interviewed without causing secondary victimization. The Guidelines emphasize the importance of avoiding unreasonable delay in the course of all proceedings affecting children.18 All procedural rules in force set out concretely the extraordinary procedure or such principles from which the application of the principle of urgency follows in the course of proceedings affecting children. However, experts complain of lengthy proceedings: most answers received from the penitentiary institutions for juveniles and correctional facilities mention that in case of the juveniles monitored by them the extraordinary procedure is not triggered, while some proceedings are delayed for years. Prolonging the judgment period and the pre-trial detainment render the efficient implementation of measures with an educational objective more difficult. The Ombudsman also inquired into the enforcement of children’s rights in the framework judicial enforcement proceedings. As indicated by civil society organizations, the insufficient preparedness of the experts participating in enforcement gives rise to problems. Bailiffs and policemen participating in enforcement do not have information and knowledge about the situation of children and their needs. This is the reason why 18 The latest proposal to amendment terminated the exclusive jurisdiction of local courts acting within the seats of county courts because the legislature found that all local courts was able to fulfill specific requirements originally applied to local courts dealing with juvenile offenders. The amendment also aimed to speed up and make more uniform these procedures however the result is still questionable.

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misconducts occur, for example the use of shackles and physical violence in relation to children. The legislation on child-friendly justice and related legal practice on it must be regularly reviewed and evaluated. In the monitoring of the implementation of the Guidelines, civil society organizations dealing with the support and the protection of children’s rights must also play a role. The Commissioner concluded that the absence of the monitoring system related to the implementation of child-friendly justice infringes the highest interest of the child and the right to protection and care, as well as the right to due process. Based on the above findings it may be stated that one of the greatest obstacles to chieldfriendly justice in Hungary is the lack of comprehensive training of experts in the justice system dealing with children. Since this constitutes a major risk of infringement of children’s rights, the Commissioner proposed – among others – the elaboration of obligatory, comprehensive training programs to prepare experts for the needs and the charachteristics of different age groups under 18.

34.5

Reporting to the UN CRC Committee

In the context of the international monitoring of children’s rights, perhaps the most important task of Hungary is to report to the 67th Session of the UN Committee on the Rights of the Child in September-October 2014 about the progress in last 5-6 years. Related to Hungary’s so-called 3rd to 5th periodic Hungary, the ombudsman invited all relevant NGOs dealing with child protection and children’s rights for a dialogue and expert consultation in May 2011 held in the Office of the Commissioner for Fundamental Rights contributing actively to the ‘Alternative – NGO – Report on the Implementation of the UN CRC in Hungary 2006-2012’.19 This report was the first non-governmental professional report on the UN CRC in Hungary. The Ombudsman also provided information about the latest developments in 2013 related to children’s rights inquiries upon the request of the editors of the NGO report in November 2013, which they compiled in the additional report. The Ombudsman invited the representatives of the relevant NGOs to his Office for an expert meeting in January 2014 to support their preparation for the reporting process in February 2014 before the UN CRC Committee. In the recently submitted supplementary report of the NGOs the folloing issues were highlighted: Childpoverty: According to the National Social Inclusion Strategy 21% of Hungarian children (~ 380,000) were living in poverty in 2009. According to the results of the study

19 www.csagyi.hu/images/stories/kutatas/civiljelentes/civil_angol.pdf.

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conducted by the UNICEF National Committee in 2012, the number of children at risk of poverty has increased since 2009, currently every second child is deprived. There is a (sub)regional gap in access to adequate healthcare and social services and education in Hungary. In the most deprived regions (e.g. North-Eastern Hungary) especially access for 0-6 year olds to pediatric, health visitation and family support services are problematic, however, even cities are facing severe and increasing problems. There is no interdisciplinary definition of the terms ‘at risk’, ‘maltreatment’, ‘abuse’. For several reasons intersectoral cooperation is scarce, allocation of resources is further weakening the system. Inquiries demonstrate malpractice and lack of adequate support. Child participation: The UNICEF National Committee launched the ‘CRC in the eyes of the children’ project between March and July 2012. Altogether 2800 children between the age of 5 and 18 were involved. Children from various social groups of society participated in the project: children in alternative care, children with disability, Roma children, both from the capital and the rural areas. The results of the survey suggest that children in general are aware of their rights. In spite of delivering correct answers, situational questions and interactive courses revealed that children’s rights remained an abstract knowledge for most of the children, and they did not realize that they are present in their own life. The survey showed that two out of three children experienced mental abuse (63%), but many of them reported mental health issues (15%), peer bullying (11%), material deprivation (6%), and physical abuse (5%). Education: The new legislation (Act CXC of 2011 on public education) reduced the age of compulsory education from 18 to 16 as of 2012. The quality of vocational schools’ requirements and curriculum have also been reduced, therefore, more young people are leaving the education system without qualification and chances for employment according to the experiences gathered in the first year of introducing the new provisions. Schools’ management was centralized causing anomalies many of which continue to exist. There is a new, central institution managing and directing state operated schools, called KLIK (Klebelsberg Intézményfenntartó Központ). In the investigation of the operation of the KLIK the Ombudsman found the breach of the rule of law, for lack of remedy available against its decisions and inadequate handling of parents’ complaints. According to the new legislation enrollment and attendance of kindergarten will be compulsory from the age of three, however, implementation was postponed to September 2015, due to the lack of kindergartens. Roma segregation is still an issue, which was further deepened through the centralization of public schools. The state failed to tackle the nationwide segregation of Roma and disabled children and those with special needs, legally binding court decisions on terminating segregation are left unimplemented. It is worth noting, that the European Court of Human Rights obliged Hungary to take positive measures against the systematic misdiagnosis of Roma children as disabled.

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Children in alternative care: Child welfare, child protection and social care institutions were transferred under central management. As of January 2014 children under 12 years of age cannot be placed into children’s homes (de-institutionalization)/DE-I), only foster families, with the exception of chronically ill, disabled children, or multiple siblings. Children with disabilities: The UN Committee on the Rights of Persons with Disabilities assessed Hungary and was concerned about the large number of children living in institutional settings and about the fact that many children with disabilities received institutional rather than home care. The De-I of children with disabilities does not show any progress. Under current legislation there is no possibility to provide daycare in institutions for children with disabilities under 3 years. Juvenile justice: Act LXII of the 2012 modified certain laws in order to implement childfriendly justice. Child friendly witness inquiry rooms were set up at least in one police station in each county. However, discrepancies still abound. Act II of 2012 on Misdemeanour Procedure regarding juveniles results in an absurd and unacceptable situation: according to the law there is still a possibility of confinement for juvenile offenders, as well as for the transfer of a fine into confinement in case the fine is not paid. According to the law only juvenile offenders over 16 years of age can be sanctioned with community service. Detention of juveniles for petty offences is a violation of children’s rights, based on this argument, the ombudsman submitted a petition to the Constitutional Court (which was refused in 2013). The interest of criminal procedures can easily override the best interest of the child, for example the pre-trial detention of juvenile offenders (older than 14) shall be carried out in either juvenile reformatories or penitentiaries, according to the decision of court. In practice this means that if there are no juvenile reformatory institutions within a reasonable distance of a given court, the young offender will most likely be placed in a prison near the court to ensure his/her presence. Due to a new provision of the law, the police to take measures against pupils younger than 14 who skip school without permission, albeit school attendance is not an issue of criminal law. The Ombudsman turned to the Constitutional Court also in the case of school truancy, his petition was refused in 2013.

34.6

Conclusion

The Ombudsman is strongly committed to represent the approach: human rights begin with children’s rights. Despite the fact that Hungary ratified the UN CRC in 1991 and a relatively detailed child protection law was developed, change is still needed in the approach and the practice of relevant authorities.

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Children’s Rights in the Hungarian Ombudsman’s Practice

A European survey (Flash Eurobarometer 235: The Rights of the Child)20 was conducted in 2008 to determine how much young people (15-18 years old) knew about the rights of the child, the extent to which these rights were protected and which actions should be taken as a priority at national and European levels. Two-thirds (67%) of young people (1518 years old) were aware that children enjoy specific rights compared to adults, while onethird (33%) were not aware of children’s rights. The survey showed that Hungarian respondents were the least informed (38%). Hungary was also the only country where a majority of respondents were unaware of the specific rights of persons under the age of 18 (61%). Therefore, we may say that statistically speaking, Hungary has a long road ahead in entrenching the idea of child friendly justice, the first steps of which were assisted by the Ombudsman.

20 http://ec.europa.eu/public_opinion/flash/fl_235_en.pdf.

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The Effectiveness of the Principle of Equal Pay in Hungarian Judicial Practice

With Special Attention to the New Directions of European Legal Practice Márton Leó Zaccaria*

35.1

Introductory Thoughts – Equal Pay on the Level of Legislation and Jurisdiction

The principle of equal pay for equal work as one of the oldest and fundamental aspects of equal treatment1 is present in the Hungarian legal system, namely Act CXXV of 2003 Act on Equal Treatment and Promoting Equal Opportunities (hereinafter: Ebktv.) and Act I of 2012 Act on the Labour Code2 contain certain rules in connection with this principle.3 Due to the particularities of these pieces of legislation it is mainly up to the courts to interpret and develop this principle to give it full effect. Based on an assessment of the judgments of the Curia of Hungary (hereinafter: Curia) we may make the general statement that it is often difficult for courts to apply this principle together with other equality norms – to synchronize them – in legal disputes, which raises a further problem: to what extent can domestic judicial practice fulfil the criteria of the common application and common interpretation set forth under Article 2 of the Ebktv.? Enforcing the principle of equal pay for equal work in connection with other notions such as wage paid as performance pay,4 the obligatory minimum wage,5 the concept of the elements of wage6 is particularly difficult, since these pose challenges of interpretation of their own.7 * 1

2

3

4 5 6 7

Assistant Lecturer, University of Debrecen, Faculty of Law. E-mail: [email protected]. S. Bornstein et al., ‘Discrimination against Mothers Is the Strongest Form of Workplace Gender Discrimination: Lessons from US Caregiver Discrimination Law’, 28(1) International Journal of Comparative Labour Law and Industrial Relations (2012), pp. 45-62. We must mention here the predecessor of the Mt. because before the entry to force – 1 July 2012 – of the Mt. Act XXII of 1992 Act on the Labour Code (former Labour Code) also contained these kind of rules and these rules were/are taken into consideration in the Hungarian legal practice because of the ‘young age’ of the new Mt. In spite of the fact that the latter rules are not interpreted separately in the resolutions, it is worthy to mention them, since in my opinion the Ebktv’s interpretation and protection scope is closer to the norms of the EU. See e.g. Resolution 219/2012, Equal Treatment Authority. KGD 5/2013 and BH 210/1997, Curia of Hungary. EBH 2425/2011 and EBH 2343/2011, Curia of Hungary. EBH 1899/2008, Curia of Hungary. BH 423/2007, Curia of Hungary.

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Among the rules of the European Union – as well as the system of international labour law8 – the requirement of equal treatment is of exceptional importance and in fact, its origins lie in the principle of equal pay for equal work.9 Though the principle is not new in EU law, it can be observed that in the last two decades new tendencies have emerged in connection with it, which does not mean that the ‘classical’ elements have disappeared, they are much rather undergoing further development. The respective new judgments turned out to be frequently cited milestones in the practice of the Court of Justice of the European Union (hereinafter: CJEU) such as the Defrenne or Barber cases.10 These developments are complemented by a special tendency, where the CJEU occasionaly faces undefined labour law concepts that are directly connected to the principle of equal wage (employment relationship,11 employee, and wage).12 In the following I shall examine Hungarian legal practice in light of the CJEU’s jurisprudence focusing on the equal pay for equal work principle. The strict criterion of equal pay should be interpreted in connection with the prohibition of gender discrimination, and it is clear from judicial practice that the principles should be applied in compliance with the relevant directives. This way, important questions such as the concept of remuneration, the aspects of equality and the legality of discrimination are examined also in the light of the ‘classical’ principles governing differences between the remuneration of women and men. In most of these cases the courts – and also the Curia – seek to answer following questions in their judgments: should the principle of equal pay for equal work be applied to the employees concerned, and if so, what may be regarded equal or unequal pay in the context of the given position; how can the injured party’s situation be compared with that of other employees; what was the basis for the different treatment; can the discrimination in question be regarded lawful? The latter two aspects are often jointly assessed in the judgments, therefore, I shall examine them together exploring the necessary connection below.

8 9

See especially ILO Convention No. 100, No. 111 and No. 156. See e.g. Judgment of 1 April 2008 in Case 267/06 Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen, [2008]. 10 See e.g. Judgment of 3 October 2006 in Case 17/05 B.F. Cadman v. Health & Safety Executive [2006], Judgment of 16 February 2006 in Case 215/04 Marius Pedersen A/S v. Miljøstyrelsen [2006], Judgment of 9 December 2004 in Case 19/02 Viktor Hlozek v. Roche Austria Gesellschaft mbH. [2004], Judgment of 13 January 2004 in Case 256/01 Debra Allonby v.Accrington & Rossendale College, Education Lecturing Services, trading as Protocol Professional and Secretary of State for Education and Employment [2004] and Judgment of 9 February 1999 in Case 167/97 Regina v.Secretary of State for Employment, ex parte Nicole Seymour-Smith and Laura Perez [1999]. 11 See B. Waas, ‘The Legal Definition of the Employment Relationship’, 1(1) European Labour Law Journal (2010), pp. 45-57. 12 See especially Judgment of 1 March 2012 in Case 393/10 Dermod Patrick O’Brien v. Ministry of Justice, [2012].

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35.2

The Effectiveness of the Principle of Equal Pay in Hungarian Judicial Practice The Scope of Application of the Principle

First of all, the problem resurfacing in both Hungarian and European legal practice the scope of application of the equal wage principle, namely, for which groups of employees and on the basis of which aspects of equality should the principle be applied. Since Hungarian legislation follows the Directives of the European Union, the new problems and challenges in both Hungarian and EU legal practice can be examined in parallel.

35.2.1

Personal Scope

The method of assessment of the Curia depends on the legal title of the pecuniary claim.13 The Curia – in accordance with European Union law – normally orders the application of the principle of equal pay for equal work for all groups of employees14 quite independently of the fact whether the person concerned is employed in an economic – classical – employment relationship in the private sector or in public/civil service.15 It must be added that the relevant Directives allow Member States to depart from these norms to a minor extent, however, such cases have not reached the Curia so far. It is important to state that from the point of view of the applicability of the principle, the nature of the employment relationship is not decisive; however, in cases where the amount of the compulsory remuneration of public servants lies at the heart of the labour law dispute, judicial practice seems less strict.16 The requirement of equal treatment must be enforced both under Act CXCIX of 2011 Act on the Legal Status of the Public Servants (hereinafter: Kttv.) or Act XXXIII of 1992 on the Legal Status of Civil Servants (in the following: Kjt.), in accordance with the earlier case-law of the Curia earlier.17 This is of great importance since public service-type legal relationships are different than economic-type employment relationships; what is more, the main departure from the classical employment relationship being the statutorily defined, typically cogent rules related to wage.18 In spite of this – in my opinion – the Curia applies the principle of equal pay for equal work correctly to the public service legal relationship,

13 The finding regarding the infringement of equal treatment in itself is not enough; the court has to decide on the damages and other sanctions as well. 14 Parliament and Council Directive 2006/54/EC Para. 4. referring to Art. 141 of the Treaty Establishing the European Community (Art. 157 of the Treaty on the Functioning of the European Union). 15 See e.g. BH 74/2012 (public servants), EBH 2175/2010 (civil servants) and EBH 2103/2009 (employees), Curia of Hungary. 16 EBH 2175/2010 and BH 250/2008, Curia of Hungary. 17 See e.g. EBH 2424/2011, Curia of Hungary. 18 T. Prugberger, Európai és magyar összehasonlító munka- és közszolgálati jog, CompLex Kiadó Jogi és Üzleti Tartalomszolgáltató Kft., Budapest 2006, pp. 189-192.

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Márton Leó Zaccaria due to the broad scope of the principle, and the most basic social function of the wage.19 However, it is worth noting that Hungarian courts do not interpret the principle – not even the Curia – in these cases as widely as would be necessary; in cases where the Curia does not make any real comparison between the employees and only refers to the cogent type of the law, it actually contravenes the legal practice of the CJEU.20 The situation is further complicated in special cases where a part of the remuneration is not covered by law and its payment depends exclusively on the discretion of the employer.21 At this point it is worth mentioning a relatively new European case22 in which the CJEU had to decide the questions mentioned above: to what extent can the concept of employee be connected to the strict concept of employment relationship when the part-time worker’s employment relationship differs from the ‘regular’ employee’s labour relationship to such an extent that the two working activities cannot be compared; and whether on that basis of the problem of the equality of wages could emerge. The CJEU analyzed this question in detail and finally arrived at the conclusion that – departing from the General Advocate’s opinion23 – in the ambit of the labour law of the European Union establishing a uniform concept of employee is inconceivable, therefore, this question is left up to the Member States to decide, on condition that they should comply with the relevant directives. Such a complex system does not exist in Hungarian law either but practical experiences show that the courts follow the consistent practice according to which the principle of equal pay must be applied for every employee working in both the private and the public sphere.24

35.2.2

The Aspects of the Equality of Wage

The next important point is that courts must examine under what circumstances the wage of employees concerned may be considered equal to the wage of those who are in a comparable situation.

19 Gy. Kiss, Munkajog, Osiris Kiadó, Budapest 2005, pp. 123-127. 20 See e.g. Judgment of 18 November 2004 in Case 284/02 Land Brandenburg v. Ursula Sass [2004]. 21 In these cases the Curia seems to forget that if the employer grants privilege in a form of extra remuneration to certain groups of employees of its own choice, discrimination may emerge between persons in a comparable situation, even if the remuneration does not have a concrete legal basis. Though such cases abound in the world of private labour law too, they are extremely frequent in the sphere of civil and public servants. See for example: EBH 1980/2009, BH 74/2012, BH 250/2008, BH 52/2008, BH 423/2007, BH 593/2001, BH 610/1998, BH 449/1998 and BH 210/1997, Curia of Hungary. 22 Case 393/10, O’Brien. 23 See Rec. 32-34. of the judgment and Rec. 42-46. of the opinion of the Advocate-General. 24 Otherwise it must be added that since the concept of employment relationship is partly undefined in Hungarian law it is problematic to decide how the principle of equal wage can be applied not in labour law but typically in civil law legal relationships (agency contract, enterprise). According to the Commitment No. 384/2/2008 of the Council Board of the Equal Treatment Authority it is necessary to correspond the principles in these cases, too.

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The Effectiveness of the Principle of Equal Pay in Hungarian Judicial Practice

The problem can be expressed – as it emerged in several judgments25 – by asking whether it is even feasible to achieve the equal wage of the persons affected. If the court decides that it is not possible, then the employee’s demand is not substantiated, since the employer’s procedure was not discriminative or there are other circumstances – for example special legal provisions26 – that justify the difference between the respective wages.27 In these cases we can arrive at the conclusion that the courts have to balance the aspects of equal pay broadly; although in most cases the interpretation of the legal problems of the judgments is correct, this approach in judicial interpretation is often too narrow.28 With respect to the issue of equality the comparison of scopes of activities is always necessary, i.e. if two or more positions have the same or at least similar attributes and the employer does not have any other legitimate reason for differentiation,29 the wages of those involved must be equal. This basic principle appears markedly in the European legal practice,30 but it plays an important role in Hungarian legal practice as well. At the same time, in the domestic judicial practice it is a recurrent problem that in most cases defining the relationship between parties’ positions is rather difficult,31 or even impossible, therefore, the discrimination test cannot be carried out with due care. Thus, it can be stated that the most important aspect is the comparison of the parties’ positions, which is rarely accompanied by a comparison of activities, while in the practice of the European Court this is the dominant aspect.32 From the resolutions of the Equal Treatment Authority it can also be inferred33 that the assessment of the given position is not necessarily sufficient to decide whether the employer’s act was discriminative or not. From the point of view of the judicature the application of Article 12 paragraph 3 of the Labour Code would be the correct solution, namely, the comparison should be made on the basis of the systematic aspects laid down in the said provision. However, it is also doubtful whether these aspects were adjusted to the individual job positions or activities, since several judgments34 reveal that even if the law lists several aspects of comparison, courts rarely explore the real circumstances of the wage on this basis. In my opinion, these aspects may even give rise to different conclusions.35

25 26 27 28 29 30 31 32 33 34 35

See e.g. EBH 2155/2010 and BH 298/2012, Curia of Hungary. See e.g. EBH 2343/2011. EBH 2155/2010 and KGD 10/2011, Curia of Hungary. See especially EBH 1980/2009, Curia of Hungary. E.g. service period, further position, the type of other tasks. G. Beck, ‘The State of Anti-Sex Discrimination Law and the Judgment in Cadman, or How the Legal Can Become Political’, 32(4) European Law Review (2007), pp. 549-562. EBH 2343/2011, EBH 2175/2010, EBH 2155/2010, EBH 1899/2008 and BH 74/2012, Curia of Hungary. See Judgment of 10 March 2005 in case of 196/02 Vasiliki Nikoloudi v. Organismos Tilepikoinonion Ellados AE, [2005]. See Resolution 831/2007 and 700/2007, Equal Treatment Authority. EBH 1980/2009, EBH 2155/2010 and BH 74/2012, Curia of Hungary. See in connection with sex-discrimination: Parliament and Council Directive 2006/54/EC Para. 9.

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Furthermore, the Curia interprets the principle of equal pay in connection with job classification as it follows from the EBH 2343/2011. It states that besides examining the attributes of a given job position it is at least as important to examine the existence of the necessary conditions to fill this position – qualifications, education, practice etc. – because if discrimination is justified on the basis of these conditions, then the principle of equal pay cannot be infringed. A further question regards the legal consequences of an employer employing somebody notwithstanding the fact that the person concerned lacks certain prerequisites, but the employer regards her to be the most suitable candidate for the position.36 In such a scenario, the employees’ situation is comparable to those who satisfy the conditions laid down in the Labour Code. In its decision the Curia stated that the employee is only entitled to equal pay if she possesses the required qualifications, otherwise the principle of equal treatment would be infringed, since the Labour Code also stipulates that possessing the qualifications necessary for filling the position is one aspect to be assessed when deciding about the equal value of the work. The reasoning of the Curia – and also the court of first instance – seems logical, but we cannot disregard that in the Labour Code there are other aspects to be taken into account besides qualification. This is actually contrary to Union law, since the case-law of the Court of Justice of the European Union indicates that the principle of equal pay is the most fundamental element of the requirement of equal treatment, which should be interpreted narrowly.37 The findings in EBH 1980/2009. about wage discrimination in connection with the attributes of a job position are also inconsistent. The Curia declares in the cited decision that depending on the place of work, different sums and allocation of remuneration in kind is not discriminative. The applicants in the case referred to the infringement of the requirement of equal treatment and the principle of equal pay claiming that the employer granted a double sum of allowances in kind to those, who worked at the headquarters, as compared to those, who could not use hot meal vouchers at the same place, receiving cold meal vouchers of half the value. The first instance labour court refused the action, but it did not state the reasons for the lack of discrimination. From its reasoning it may be inferred that the mere fact that the vouchers differ in the aspect of applying to hot or cold meals is insignificant.38 The court of second instance agreed with this judgment but complemented

36 BH 103/2013 and BH 298/2012, Curia of Hungary. 37 See Case 19/02 Hlozek, Judgment of 7 January 2004 in Case 117/01 K. B. v. National Health Service Pensions Agency, Secretary of State for Health [2004] and Judgment of 17 September 2002 in Case 320/00 A.G. Lawrence and Others v. Regent Office Care Ltd., Commercial Catering Group, Mitie Secure Services Ltd. [2002]. 38 In my opinion, the latter arguments are superficial and meaningless, because on the one hand in connection with work the Ebktv. itself prohibits all kinds of discrimination independently from its ‘measure’ and importance, and on the other hand the essence of the principle of equal treatment should keep the employer back/ prevent/ discourage the employer from performing any discrimination among/between (the) employees. See B. Nacsa, ‘Jogharmonizáció: diszkrimináció helyett egyenlő esélyek az EU-ban és a Munka Törvénykönyvében’, 3(6) Cég és Jog (2001), pp. 41-45.

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The Effectiveness of the Principle of Equal Pay in Hungarian Judicial Practice

the first instance judgment. It declared that the employer differentiated lawfully on the basis of the place of work, because under the given circumstances it would have been impossible to grant the same remuneration to the parties. Following the applicants’ petition for review the Curia totally agreed with the merit and justification of the final judgment in spite of the fact that the employees’ argument seemed convincing.39 According to the applicants the differentiation was not proportional and the reason underlying it was neither relevant, nor legal. The Curia held that the employees’ positions were not comparable because of the different workplaces, allowing for lawful differentiation. Altogether we can say that according to the judgment the requirement of equal pay – following from the judgment in general the requirement of equal treatment – can be lawfully infringed on the basis of the place of work, even if the employment relationship of the employees concerned are the same regarding all further essential elements.40 Furthermore, it must be added in connection with the above cited judgment that the principle of proportionality should be considered with more emphasis in discrimination cases.41 This case is a good example, for even if we accept that differentiation shall be lawful on the basis of the place of work, the question may arise whether the aim the employer tries to achieve is legitimate and whether the chosen means are proportional or not.42 It must assessed whether or not the extent of the legal injury can be justified. In my opinion, the nature43 of the right to equality and the need to protect workers’ rights especially in connection with remuneration must be duly considered. A further judgment of the CJEU44 should also be mentioned. In the Lawrence case the Court did not exclude the possibility of applying the principle of equal wage to several employees who, albeit not working for the same employer, carried out the same activity. Although such an approach would be suitable in the public sphere; in case of individual employment contracts this kind of interpretation seems overly extensive.45 Although a similar example cannot be found in Hungarian legal practice, the above described cases suggest that wage discrimination is not allowed on the basis of the workplace – with a little exaggeration – even in the case of different employers unless it has some legal cause.

39 Naturally, the legal situation could have been different if the employer would have marked such further conditions. See T. Gyulavári, ‘Egyenlő bánásmód és esélegyenlőség’, 13(47-48) Café Bábel (2004), pp. 111129. 40 It is interesting to remark that according to the 45. § (3) of LC – differently from the previous regulation – the place of work does not belong to the obligatory content elements of the employment contract. 41 N. Hős, ‘Az Európai Bíróság életkoron alapuló hátrányos megkülönböztetéssel kapcsolatos joggyakorlata, különös tekintettel az arányossági teszt alkalmazására’, 15(3) Európai Tükör (2010), pp. 57-75. 42 T. Kalas, ‘Egyes jogelvek szerepe az Európai Bíróság ítélkezési gyakorlatában’, 56(7-8) Jogtudományi Közlöny (2001), pp. 313-320. 43 Because it is a fundamental human right and its source is the right to human dignity and the equal dignity. 44 Case 320/00 Lawrence and Others. 45 In this respect, the collective agreements are legal regular norms, so in case of their infringement to refer to the infringement of the principle would be possible.

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35.3

The Interpretation of the Criteria of Comparability

The next aspect for assessment is the criteria of comparability. The legal basis of comparability is the list of concepts included in the Ebktv. comprising direct and indirect discrimination, furthermore, the aspects referring to equal pay enshrined in the Labour Code. In general, the essence of comparability regarding equal pay requires that the prohibition of discrimination should not become boundless, i.e. adjudicating the differences between persons or groups should be meaningful.

35.3.1

The Role of Comparability

The aspects on the basis of which the persons or groups are compared should be defined, so it cannot happen that two persons – in our case workers – are compared whose situations, circumstances are so different that in their case it would be impossible to speak about discrimination. At the same time, comparison also aims at examining specific attributes leading to discrimination. Basically, the aspects of comparability must be objective, however, in some cases it is necessary to take the employees’ subjective circumstances into consideration.46 Since Hungarian law affects only certain segments of comparability in the equality of employment, the practice of the Constitutional Court47 and consequently the Curia determines the direction to be followed. In general, it can be stated that in Hungarian judicial practice the principle is interpreted in accordance with relevant Union law, however, legal development in domestic law is scarce. The biggest problem is that courts narrow down the personal scope excessively when assessing comparability,48 and it is also typical that even in case of infringement affects a single individual they insist on discovering groups in similar situations.49 In my opinion, from the content of the Labour Code and the Ebktv. we cannot arrive at this conclusion, but it is also true, that a meaningful comparison of the employees’ situation is very difficult, leaving lawyers and judges with the disquieting sense that such an examination is forced and fails to take into consideration the real circumstances of employees.

46 C. Costello and G. Davies, ‘The Case Law of the Court of Justice in the Field of Sex Equality Since 2000’, 43(6) Common Market Law Review (2006), pp. 1567-1616. 47 See 9/1990 (IV. 25) AB, Resolution of the Hungarian Constitutional Court. 48 EBH 2424/2011, EBH 2155/2010, EBH 1980/2009 and BH 74/2012, Curia of Hungary. 49 See e.g. EBH 2155/2010 and BH 74/2012, Curia of Hungary.

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35.3.2

The Effectiveness of the Principle of Equal Pay in Hungarian Judicial Practice Comparability in Practice

In connection with the requirement of equal pay the Curia makes important statements in the EBH 2155/2010, where the judgment centred on the criteria of comparability and the definition of ‘equal situation’. From a dogmatic point of view it is interesting that the plaintiff based his claim on Article 8 item t) of the Ebktv – direct discrimination – namely, the obligation of joint application. The Curia found the employees’ situation not to be comparable, because the necessary education requirement for the position was different even though the employees’ positions were basically the same. In spite of this, during the employment relationship the employer classified the plaintiff in the same way as those, who had the necessary education, but later a difference emerged in their wages. Although the entry level court found that since the employer was an extremely large company with several places of business all over the country and the tasks were not quite the same, it could not be substantiated that the plaintiff’s wage was unreasonably lower than that of some of the colleagues’. Thus, the conclusion of the court was that the fact that in the given position the wage of only a small number of employees – who were otherwise in the same situation – was higher than the plaintiff’s, cannot be regarded as discrimination. In consequence, it was not examined whether wage discrimination emerged on the basis of other circumstances referred to. The court of second instance correctly held that in connection with wage discrimination the Ebktv. and the Labour Code cannot be interpreted too narrowly and strictly since the principle of equal pay is protected by an express provision of the Constitution of Hungary.50 Therefore, the exclusive assessment of the plaintiff’s marked attribute is insufficient, in particular, because in this case ‘other situation’ is interpreted correctly if it is examined in the light of whether it is closely connected to the employee’s employment situation. On this basis, the Curia’s legal conclusion was that the wage and wage developing conditions laid down in the individual employment contract are basically adapted to the circumstances stipulated in the collective agreement in force at the employer, i.e. they are defined as a consequence of the social partners’ bargaining process. It is important to add that in respect of such a large employer it would be a fundamental requirement that the parties conform to the requirements of equal treatment as it is a common practice in the other Member States of the European Union,51 however, this was not the case. According to the Curia’s opinion, as a consequence of the new classification the plaintiff did not suffer an unlawful disadvantage, since his wage could not be higher on the basis of his classification. In my opinion, the Curia’s argument – according to which the wage of the employee, 50 This norm is missing from the Basic Law /Fundamental Law, but it can be deduced from the domestic legal practice and the European and international labour law principles, so in my opinion the principle of equal wage for equal work is characteristic at a higher protection level. 51 A. Supiot, Beyond Employment, Oxford University Press, Oxford 2005, pp. 174-189.

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who was in a comparable situation to the plaintiff, was fixed higher not because he had subjective right to such a wage on the basis of the law, collective agreement or the employer’s regulation, but much rather because the employer defined a higher wage for the employee based on its discretion – is irrelevant. Altogether this argument would suggest that employers can violate the requirement of equal treatment supposing they refer to the fact that the decision about wage is based fully on their own discretion. By contrast, we should not forget that – in most cases – directives deem employer’s decisions to be discriminative in case these are based on the employer’s discretion.52 Finally, the Curia did not adjudge the employee’s demand even though his situation could be compared to those who received higher wages under the same conditions, since only the wages of certain employees of the same classification wages were higher, and on this basis the Curia found that the plaintiff did not suffer a real disadvantage. In my opinion, this interpretation is rather narrow, since there are no rules in the law on equal opportunities on the basis of which it would be necessary to compare the employee’s situation, who suffered disadvantage, in connection with that of other employees, since it was unambiguous in the present case that the disadvantage actually originated from unjustified differentiation. The Curia gives a broader interpretation of comparability in its Judgment BH 74/2012, where it declares that the employer is obliged to pay for the surplus work according to the surplus burden for every employee working under the same circumstances, and the employer may only depart from this rule for appropriate reasons. In the action there were no important differences between the civil servants’ work, only their workplaces were different. In spite of this, the employer paid less benefits to the plaintiff than the colleagues in a comparable situation, undoubtedly infringing thereby the requirement of equal treatment. The employer referred to the fact that it paid risk benefit on the basis of the collective agreement, but the higher wage was not adjusted to the job position but much rather to the organisational unit and what is more, the maximum number of staff was also stated. As a result, the employer came to the conclusion that on the basis of the collective agreement it could decide in it own discretion which employees shall receive the surplus benefits. In my opinion, it was not necessary to find a real cause for discrimination because this could be inferred from the provisions of the collective agreement. Altogether, according to the respondent employer the employees’ situations cannot be considered to be comparable and as a consequence, they cannot suffer discrimination since none of the civil servants had a subjective entitlement to the benefits in question, thus, the plaintiff would not be entitled to it even in case of discrimination. It must be added that in most cases the employer made payments without a legal basis in contravention to the collective

52 Gy. Kiss, ‘Az egyenlőségi jogok érvényesülése a munkajogban’, 8(1) Jura (2002), pp. 48-60.

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agreement, thus, according to the respondent’s standpoint the plaintiff could not invoke loss of pay because these had no legal basis.53 In its decision the Curia pointed out that it is irrelevant on what legal title the payment was made, since the plaintiff employees suffered discrimination and their situation was comparable.54 Since the employer did not have a legitimate reason to substantiate that it acted in accordance with the requirement of equal treatment, the Curia essentially only examined whether the employees had suffered any disadvantages or not. It is remarkable that by this judgment the Curia tries to define the interpretational aspects in two further directions in connection with equal treatment: on the one hand, it accepts that concerning the wage the principle must be applied to every element of remuneration, including additional benefits, while on the other hand, it interprets the criteria of comparability from the point of view of labour protection. Finally, it is worth pointing out that the Curia also mentions that in course of the application of the principle of equal pay included in the Labour Code, the assessment of the employee’s real disadvantage is indispensable and in such cases it is of secondary importance whether the employee can substantiate that she possesses protected attributes.

35.4

The Causes of Wage Differentiation Based on Its Legality

The next aspect of assessment in domestic legal practice is the examination of the question whether wage discrimination actually occurred or which aspect or circumstance served as a basis for differentiation.55 It is clear from Hungarian judicial practice that courts try to expose the reasons which lead to discrimination, albeit these are taken into consideration to a different extent.56 Naturally, there are extreme cases – not exclusively in connection with remuneration – where the employer discriminates for revenge,57 as a consequence of 53 Although the Curia did not consider these arguments to be correct and we must pay attention to the fact that according to the adequate interpretation of the wage such ‘nonexistent’ elements form part of the wage in case they are paid in connection with the performance of the employment contract. See Art. 1 of ILO Convention No. 95 reads as follows: ‘In this Convention, the term wages means remuneration or earnings, however designated or calculated, capable of being expressed in terms of money and fixed by mutual agreement or by national laws or regulations, which are payable in virtue of a written or unwritten contract of employment by an employer to an employed person for work done or to be done or for services rendered or to be rendered.’ The CJEU follows the same interpretation in connection with Art. 141 of the Treaty Establishing the European Community (Art. 157 of the Treaty on the Functioning of the European Union). 54 The Curia did consider it important to carry out the detailed examination of comparability, because it was unambiguous that the job positions are the same and in this case the judicature does not have to compare all the elements of the work activity; the cause for comparability was the type of the legal relationship. 55 It is of high importance from the point of view whether discrimination is lawful or not, but sometimes exploring the real causes of discrimination results in the findings revealing the essence of discrimination. 56 EBH 2343/2011, EBH 2175/2010, BH 298/2012, BH 73/2012, KGD 5/2013 and KGD 10/2011, Curia of Hungary. 57 BH 347/2011, Curia of Hungary.

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Márton Leó Zaccaria some personal conflict,58 but in my opinion the number of cases where incorrect interpretation of the legal regulation results in discrimination is rather high.59 The employer’s behaviour can be interpreted in several ways in light of the prohibition of discrimination, however, in line with the resolutions of the Equal Treatment Authority60 the courts adjucating employment cases should pay much more attention to the real causes of discrimination, because a discrimination case may lead to other serious infringements on the employee’s side and in this respect the judicature bears great responsibility because it is difficult to control this field. In connection with this, the Curia makes relevant statements in Decision BH 103/2013. as follows. Discrimination on the plaintiff employee’s part emerged for several reasons, since this case concerns questions of both wage and advancement. It is interesting that the requirement of equal treatment appears indirectly in the case, which is a recurrent problem also in the European equal opportunities law.61 The plaintiff employee complained that he suffered discrimination because after fulfilling the requirements of the contract for studies he was not classified into a higher category that would suit his new qualification. This case is extremely interesting from the aspect of equal opportunities because the plaintiff did not refer to any attributes as the basis of discrimination and the situation turned to the absurd when the plaintiff stated that the performance of the contract justified the discrimination.62 The Curia found in its ruling that in case the employee does not refer to any attributes that are unrelated to his legal relationship and on which basis he suffered a real disadvantage, the infringement of equal treatment, i.e. the principle of equal pay is exclusive. Thus, the Curia held that the legal basis of discrimination may be any circumstance in connection with the employment relationship, which has an effect on the performance of the employment contract, at the same time, the employer’s action cannot be traced back to any of the employee’s personal attributes. This principle is authoritativ) from the point of view of both remuneration and advancement. The adjudication of situations where the employer – due to coercion or its own economic or other circumstances – cannot observe the requirement of equal pay is problematic, since in these situations it is not certain that the employer’s behaviour may be traced back to some discriminative cause.63 In such cases the Curia has to decide whether discrimination

58 59 60 61

BH 132/2012 and BH 349/2011, Curia of Hungary. See e.g. BH 204/2011, Curia of Hungary. See Resolution 585/2012, 245/2012, 219/2012 and 700/2007, Equal Treatment Authority. See especially Judgment of 12 October 2004 in Case 313/02 Nicole Wippel v. Peek and Cloppenburg GmbH.& Co. KG. [2004]. 62 Altogether the existence or non-existence of other agreements in connection with the employment relationship can be regarded as an employment situation, but in such a situation the further conditions of discrimination must be examined more strictly. The plaintiff employee’s situation is not necessarily comparable to the others’ working in the same job position. 63 It is also true that infringement performed from this aspect has greater importance than the original cause.

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based on a quasi operational cause may be deemed lawful or not. The Curia states that as a main rule this cannot be lawful because in this case the basis for the discrimination is the employer’s behaviour (BH 210/1997). The employer fails to perform one of its main obligations when paying the employees unequally and from this perspective the cause is irrelevant. In the concrete case the employer did not give any real reasons for paying a reduced premium to the plaintiff, even though the specialities of the job position – management activities – could have justified it. The employer discriminated against the employee beyond doubt (he was the only person who did not get the whole sum). Consequently, discrimination cannot be deemed lawful if the employer – seemingly – differentiates unlawfully and disproportionately between the employees in connection with wage for economic reasons or due to coercion.64

35.5

Conclusion and Final Thoughts

On the basis of the relevant BHs and EBHs the principle of equal pay for equal work is generally interpreted correctly, but the use of the concept of equal pay for equal work remains problematic. It is not clear either how this principle may be enforced within the framework of special forms of employment relationship65 in light of the parties’ private autonomy which is a fundamental principle in civil law.66 The aspects of equal pay are not uniform in Hungarian legal practice: while it is clear from the commitment of the Council Board of the Equal Treatment Authority67 which elements of remuneration should be taken into consideration, and what are the real elements of equal pay, judicial practice disregards these elements and often applies the principle of equal pay inconsistently with an overly general approach. In my opinion, the Ebktv. and the connected jurisprudence corrected partly rectified this tendency, but Hungarian interpretation of the principle of equal pay is, for the time being, far removed from the interpretation followed by the Court of Justice of the European Union. The application of the criteria of comparability in Hungarian legal practice is more often than not deceivingly ambiguous. In approximately 50% of the cases the courts – and also the Curia – pay no attention to the criteria of comparability since they first examine the existence of a protected attribute and the cause for differentiation, while in the end,

64 Cs. Kollonay Lehoczkyné, ‘Árnyak és árnyalatok az egyenlő bánásmód európai uniós elvének alkalmazása körül’, 2(1-2) Fundamentum (1998), pp. 88-93. 65 L. Vékás, ‘Egyenlő bánásmód a polgári jogi viszonyokban?’, 61(10) Jogtudományi Közlöny (2006), pp. 355364. 66 Gy. Kiss, ‘Munkajog a közjog és a magánjog határán – egy új munkajogi politika kialakításának szükségessége’, 63(2) Jogtudományi Közlöny (2008), pp. 70-81. 67 Commitment No. 384/2/2008. of the Council Board of the Equal Treatment Authority.

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Márton Leó Zaccaria the assessment of the comparable situation turns out to be obsolete.68 This practice is contrary to the practice of the CJEU.69 A negligible part of the cases are more progressive, since in its new judgments70 the Curia interprets the requirements of comparability in a rather wide spectrum by considering the same scope of activities – even if only their denominations are the same71 – sufficient to determine comparability. Although this approach is going in the right direction, in light of EU legal developments the aspects of this examination should be more elaborate and should not only deal with the ‘classical’ aspects of comparability. It is clear that in Hungarian legal practice the real cause for discrimination is often left unexplored, rendering the determination of comparability and unlawful treatment more difficult. In this respect, courts seem satisfied with exploring only one of the causes even if it is not a real cause.72 Thus, the aspects for assessment are rather restricted, in particular, when the attribute referred to by the employee belongs to the category of ‘other circumstance’. Meanwhile, according to the European jurisprudence the basis for differentiation can be any attribute, circumstance, situation, perception which is characteristic of the employee concerned, as a result, the courts or authoritys must examine all related aspects.73 In particular, according to European legal practice attributes in connection with the employment relationship must be considered as protected, meaning that the infringement of equal pay may occur even if there is no named protected attribute.74 However, we can only find very few examples for this approach in Hungarian judicial practice, since courts rarely apply the principle of proportionality even if it were necessary in order to strengthen employees’ legal protection. Typically, the judicial practice of the Curia regards unequal wages lawful in case the difference does not affect the base wage75 with the employer invoking its own discretionary powers or substantiating discrimination by seemingly justifiable aspects.76 The result is the same in case the employee cannot indicate a protected personal attribute on which the discrimination was based.77

68 EBH 1980/2009, Curia of Hungary. 69 K. Kodlinská, ‘Case Law of the European Court of Justice on Sex Discrimination 2006-2011’, 48(5) Common Market Law Review, (2011), pp. 1599-1638. 70 EBH 2424/2011, EBH 2103/2009, BH 74/2012, BH 52/2008 and KGD 5/2013, Curia of Hungary. 71 EBH 2343/2011 and BH 74/2012, Curia of Hungary. 72 See especially EBH 1980/2009, Curia of Hungary. 73 C. Tomuschat, ‘Case C-85/96 María Martínez Sala v. Freistaat Bayern, Judgment of 12 May 1998, Full Court. [1998] ECR I-2691’, 37(2) Common Market Law Review (2000), pp. 449-457. 74 L. Waddington and M. Bell, ‘More Equal Than Others: Distinguishing European Union Equality Directives’, 38(3) Common Market Law Review (2001), pp. 587-611. 75 EBH 2175/2010, EBH 1899/2008, BH 103/2013 and BH 610/1998, Curia of Hungary; Personal base wage before 1 July 2012. 76 EBH 2343/2011, EBH 2155/2010 and EBH 1980/2009, Curia of Hungary. 77 EBH 2155/2010, EBH 1980/2009, BH 103/2013 and KGD 10/2011, Curia of Hungary.

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In view of the above, it is clear that the criteria of equal pay are often applied directly in Hungarian judicial practice, with consideration to the criteria elaborated by the CJEU. However, jurisprudence often seems a little superficial as if the courts consider the protection of the requirement of equal treatment to be superfluous or at least they do not recognize the magnitude of the problem. In my opinion, this one of the greatest flaws of the relevant jurisprudence, since the courts’ task would be to apply relevant labour law protection rules correctly. Since the rules of both the Ebktv. and the Labour Code must comply with the requirements set out under EU law, it would be advisable for labour courts to take into consideration both European case-law and the practice of the Equal Treatment Authority. It remains to be seen, how effective judicial labour protection in Hungary really is, of which the effective enforcement of the principle of equal pay for equal work forms an undoubtedly core part.

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Summary of Decision No. 14/2013 (VI. 17) AB of the Constitutional Court of Hungary

On The Constitutionality of Article 17(3) of the Act No. CXCVI of 2011 on National Assets and of Article 4 of the Act No. LXXI of 1994 on Arbitration

I 1. On 11 June 2013, the Constitutional Court of Hungary rejected the petition submitted by the Commissioner for Fundamental Rights aimed at establishing: i) the unconstitutionality of Article 17(3) of Act No. CXCVI of 2011 on National Assets (hereinafter: National Assets Act) and of the following passage of Article 4 of Act No. LXXI of 1994 on Arbitration (hereinafter: Arbitration Act): ‘…furthermore, in cases where the subject of the legal dispute is a national asset being on the territory within the borders of Hungary and falling within the scope of the Act No. CXCVI of 2011 on National Wealth, and any right and claim related to it…’ and also at establishing ii) that the above-mentioned legal rules are contrary to international treaties to which Hungary is a party. 2. Refering to its competence defined by Article 46(3) of Act No. CLI of 2011 on the Constitutional Court, on the grounds of the Paragraph (1) of Article B) and also of Paragraph (2) of Article Q) of the Fundamental Law, the Court simultaneously established as a constitutional requirement i) that the last clause of Article 17(3) of the National Assets Act (‘Furthermore, for settlement of such legal disputes, the contracting party entitled to dispose of the national asset cannot stipulate arbitration proceedings.’) should be interpreted and applied jointly with the first clause of Article 17(1) of the National Assets Act (‘The National Assets Act shall be without prejudice to rights and obligations acquired legally and in good faith before the entry into force of this Act.’). This requirement refers to investment agreements and

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undertaking matter covered by the National Assets Act and in force on 1 January 2012 which have been signed by the Hungarian State and a legal person of the other Contracting State, and ii) that the following passage of Article 4 of the Arbitration Act: […] furthermore in cases where the subject of the legal dispute is a national asset being on the territory within the borders of Hungary and falling within the scope of the Act No. CXCVI of 2011 on National Assets, and any right and claim related to it […], and also Articles 55(1) lit. b) and 55(2) lit. a) of the same Act should be interpreted and applied jointly with the first clause of Article 17(1) of the National Assets Act (‘The National Assets Act shall be without prejudice to rights and obligations acquired legally and in good faith before the entry into force of this Act’). This requirement refers to investment agreements and undertaking matter covered by the National Assets Act and in force on 1st January 2012 which have been signed by the Hungarian State and a legal person of the other Contracting State. 3. The Constitutional Court established as a constitutional requirement, that the articles of bilateral agreements for protection of investments providing for settlement of legal disputes between the sovereign states by constituting of arbitral tribunal do not fall within the scope of the Arbitration Act, respectively of Article 17(3) of the National Assets Act.

II 1. In December 2011 the Hungarian Parliament acting within its competence defined by Article 38(1)-(2) of the Fundamental Law adopted the National Assets Act. This Act is classified as a cardinal Act, the adoption or amendment of which requires the votes of twothirds of the Members of Parliament present [Fundamental Law, Article T), paragraph (4)]. Most of the provisions of the Act, including the one challenged by the Commissioner for Fundamental Rights, are effective as of 1 January 2012. In its Article 38(1), the Fundamental Law defines the property of state and of local governments as national assets. The National Assets Act regulates the requirements for preserving and protecting national assets, as well as for the responsible management thereof, and determines the scope of the exclusive property and of the exclusive economic activities of the state, as well as the limitations and conditions of the alienation of national assets of outstanding importance for the national economy.

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Summary of Decision No. 14/2013 (VI. 17) AB of the Constitutional Court of Hungary

Paragraph (2) of the same Article itemizes the objects of national assets, e.g.: the exclusive and other property and also the financial assets of the state and of the local governments, and any shares owned by them, the airspace above the territory defined by Hungary’s borders, the Kyoto units, natural and cultural heritage values, etc. Appendix No.1 of the National Assets Act lists assets being the exclusive property of the Hungarian state: i) rivers, brooks, backwaters, river tributaries, and all their beds, water installations, and also natural lakes (Balaton Lake, Velence Lake, Fertő Lake, Hévíz Lake), and ii) the national trunk railway lines. Appendix No. 2 lists as national assets of particular importance for Hungarian economy numerous forestries, the HungaroControl Magyar Légiforgalmi Szolgálat Zrt. (Hungarian Aircontrol Service Private Company Limited by Shares), the Szerencsejáték Zrt. (Gambling Services Private Company Limited by Shares), the Bábolna Nemzeti Ménesbirtok (National Stud-farm), the Kincsem Nemzeti Lóverseny és Lovasstratégiai Kft. (National Horse-races and Equestrian Strategy Ltd.), the Diákhitel Központ Zrt. (Student-credit Private Company Limited by Shares), and some other private companies limited by shares under the control of Ministry of Defence. National assets belonging to this group are also the statues at Kossuth Square, including the Equestrian Statue of Francis II Rákóczi, the Kossuth memorial, the memorial for the 1956 Hungarian Revolution, the statue of the poet Attila József sitting on the bank of the river as described in his poem ‘By the Danube’. The Appendix includes furthermore a list of protected monuments and buildings, starting with those in Budapest: the Sándor Palace, which is at present the Hungarian President’s official residence, the Royal Palace in Buda, the ruins of the tower and the walls of the Maria Magdalene Church, the Gül Baba Tomb, a Turkish Bath, the ruins of the Roman Civil Town of Aquincum, the Citadel of Gellért Hill, the Heroes Square with its monuments, the Vajdahunyad Castle. In the county Baranya, national assets are the Siklos and the Szigetvár fortress, the Jakováli Hasszán mosque, and the Cella Septichora in the county seat Pécs; in the county Borsod, the Fazzola ancient smelting furnace, the Boldogkőváralja fortress, the Diósgyőr fortress, the Sárospatak fortress, the Fűzér fortress ruins, the Ónod fortress ruins, the Regéc fortress ruins, the Bükkszentlélek cloister ruins, the Mártony cloister ruins, the synagogue in Mád, the L’Huillier-Coburg manor-house in Edelény; then in the county Heves, the fortress and the minaret of Eger; and in the county Zala, the Festetics Palace in Keszthely etc. According to Article 2 of the National Assets Act, its scope does not extend to a. financial possessions of agencies and persons who are part of the administration of state finances; b. claims and payment obligations; c. social insurance; and d. state records defined by law as national data assets

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Due to these concrete legal rules of the National Assets Act and its appendices, the administrative authorities and the actors of the economic life have at their disposal accurate information for the natural, cultural and property components of the national assets; consequently the National Assets Act is in conformity with Paragraph (1) of Article B) of the Fundamental Law. 2. As mentioned above, the adoption of the National Assets Act has been prescribed by Article 38 of the Fundamental Law with the view to regulating the means of preserving and protecting national assets, as well as for the responsible management thereof. The aim of the management and protection of national assets shall be to serve the public interest, to satisfy common needs and preserve natural resources, and to take into account the needs of future generations. For achievement of this aim the regulation concerning the national assets provides for some limiting conditions on exercising the proprietor’s rights. Such a restriction is prescribed by Article 17(3) of the National Assets Act: If a civil law contract concerns the national assets on the territory of Hungary delimited by its borders, the contracting party entitled to dispose of the national asset should stipulate the exclusive application of the Hungarian language and Hungarian law and – in case of legal dispute concerning the national asset – the exclusive jurisdiction of Hungarian courts, not including the arbitration courts. Furthermore, for settlement of such legal disputes the contracting party entitled to dispose of the national asset cannot stipulate arbitration proceedings. This legal rule is effective as of 1 January 2012. For securing legal coherence with this rule, on 5 June 2012, the Hungarian Parliament amended Article 4 of the Arbitration Act as follows: ‘No arbitration court – either ad hoc or permanent, with place (seat) either in Hungary, or outside Hungary – may proceed in the procedures regulated by Chapters XV–XXIII of the Code of Civil Procedure (CCP), furthermore in cases where the subject of the legal dispute is a national asset being on the territory within the borders of Hungary and falling within the scope of the Act No. CXCVI of 2011 on National Assets, and any right and claim related to it, respectively, as well as in cases where an act excludes the settlement of a legal dispute in the framework of arbitration.’ This legal rule is effective as of 13 June 2012. It shall apply in the proceedings commenced after the entry into force of this Act. Summarizing the above: the challenged rule of the National Assets Act excludes the stipulation of arbitration in the contracts concerning national assets, and the challenged rule of the Arbitration Act precludes the arbitration procedure in legal disputes where the subject is a national asset.

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Summary of Decision No. 14/2013 (VI. 17) AB of the Constitutional Court of Hungary

3. In his petition, the Commissioner for Fundamental Rights asserted that both legal provisions are contrary to the European Convention on International Commercial Arbitration (signed in Geneva, 21 April 1961, the ‘Geneva Convention’, entry into force: 7 January 1964), to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (signed in New York, 10 June 1958, the ‘New York Convention’, entry into force: 7 June 1959) and to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (signed in Washington, 18 March 1965, the ‘Washington Convention’, entry into force: 14 October 1966). According to his reasoning, since the challenged provisions generally preclude arbitration in matters concerning items of national property located in Hungarian territory they are in conflict with these conventions, considering that Hungary is a party to all of them. Consequently the constitutionality of these provisions is also contested, as far as Paragraph (2) of Article Q) of the Fundamental Law states that in order to comply with its obligations under international law, Hungary shall ensure that Hungarian law be in conformity with international law.

III 1. First and foremost the Constitutional Court points out that Article 17(3) of the National Assets Act and Article 4 of the Arbitration Act have no impact on the validity of arbitral clauses provided for (or to be provided for) in international investment, undertaking and other treaties of similar nature which do not fall within the scope of the National Assets Act, therefore by no means concern the national assets. That is, the issue of conflict of these legal provisions with international treaties such as the New York Convention, the Geneva Convention, the Washington Convention or the bilateral agreements to which Hungary is a party does not arise. 2. Furthermore, the Constitutional Court notes that the consideration of the economic benefits, detriments and other relevancies of the challenged provisions does not fall within its competences. 3. Accordingly, the assertion of conflict Article 17(3) of the National Assets Act and Article 4 of the Arbitration Act with international treaties has been examined by the Constitutional Court from the following aspects: i. the international investment, undertaking etc. agreements in force shall concern the national assets; ii. they shall include an arbitral clause;

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iii. directly or indirectly they shall fall within the scope of either a bilateral investment protection agreement between states, either the New York Convention, either the Washington Convention, either the Geneva Convention. 4. The grounds of the Arbitration Act and the arguments of the Commissioner for Fundamental Rights both indicate that the challenged passage of Article 4 of the Arbitration Act ([…] furthermore in cases where the subject of the legal dispute is a national asset being on the territory within the borders of Hungary and falling within the scope of the Act No. CXCVI of 2011 on National Assets, and any right and claim related to it […]) has been formulated with regard to Article 17(3) of the National Assets Act. As a consequence, due to the close correlation between these two legal rules, and also taking into consideration their textual similarity and identical purpose, the Constitutional Court examines simultaneously the conformity of the challenged rules with the Fundamental Law. 5. The issue of conflict of Article 17(3) of the National Assets Act and Article 4 of the Arbitration Act with international treaties has been examined by the Constitutional Court based on the following aspects: a. Is there any conflict with bilateral investment protection agreements? b. Is there any conflict with the Washington Convention? c. Is there any conflict with the Geneva Convention? d. Is there any conflict with the New York Convention?

IV Is there any conflict with bilateral investment protection agreements? No. The bilateral investment treaties (BIT) arranging such relationships are literally almost identical, the contracting parties usually look for a model BIT in the database of the United Nations Conference on Trade and Development (UNCTAD), which is the most comprehensive BIT database. The purposes of the constitutional review may be served adequately by a typical example of BIT as is the one between Hungary and Azerbaijan promulgated by Act No. CVIII of 2007. The issue of breach of bilateral agreements may arise:

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Summary of Decision No. 14/2013 (VI. 17) AB of the Constitutional Court of Hungary

i. in the context of a legal dispute between the state and an investing national of another state; ii. in cases unrelated to the above-mentioned legal dispute i) Is there any conflict with bilateral agreements in the context of a legal dispute between the state and an investing national of another state? No. Article 8 of the bilateral investment protection treaty regulates the settlement of investment disputes between a contracting party and an investor of the other contracting party as follows: ‘1. Any dispute which may arise between an investor of one Contracting Party and the other Contracting Party in connection with an investment on the territory of that other Contracting Party shall be subject to negotiations between the parties in dispute. 2. If any dispute between an investor of one Contracting Party and the other Contracting Party cannot be thus settled within a period of six months following the date on which such negotiations were requested in written notification, the investor shall be entitled to submit the dispute either to: a) the competent court of the Contracting Party in the territory of which the investment has been made; or b) the International Centre for Settlement of Investment Disputes (ICSID) having regard to the applicable provisions of the Convention on the Settlement of Investment Disputes between States and Nationals of other States opened for signature at Washington D.C. on 18 March 1965, in the event both Contracting Parties shall have become a party to this Convention; or c) ad hoc arbitral tribunal established under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL). The parties to the dispute may agree in writing to modify these Rules.’ It is unambiguous that if the dispute is arranged by negotiations (paragraph 1), the challenged provisions in concreto do not conflict with Article 8 of the BIT, and they do not conflict with it in the case the negotiations are not effective, but the contracting parties agree to submit the dispute to the competent Hungarian court [Para 2. a)]. If none of these solutions are accepted by the contracting parties and ICSID arbitration is demanded, the conflict with it may be precluded with regard to considerations concerning the Washington Convention set forth below. In case the setting up of an UNCITRAL ad hoc arbitral tribunal is requested, it should be noted that the Arbitration Rules of the United Nations Commission on International

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Trade Law, enshrined by UN General Assembly Resolution 31/98, themselves have effect on contracts with arbitration provision which entered into force prior to the UNCITRAL Arbitration Rules. To avoid the conflict between the Article 17(3) of the National Assets Act, respectively Article 4 of Arbitration Act, and the ICSID respectively the UNCITRAL Rules, the Constitutional Court deems necessary the establishment of a constitutional requirement according to which the effect of the provision of Article 17(1) in any case, without exception, concerns the international agreements of private law nature with contracting parties a state and an investor/national of another state which are in force on 1st January 2012. It provides that ‘the National Assets Act shall be without prejudice to rights and obligations acquired legally and in good faith before the entry into force of this Act. Should the duration of contracts concluded prior to the entry into force of this Act be extended after the entry into force of this Act, this extension shall be deemed conclusion of a new legal contract, except for the cases defined by Article 6(8), Article 11(10) and Article 12(3).’ The Constitutional Court notes that prior to the expiry of the duration of such agreement the Government should act in accordance Article 17(3) of the National Assets Act and Article 4 of Arbitration Act to renegotiate the agreements if it considers necessary or expedient the continuation of the legal relationship established by it. ii) Is there any conflict with bilateral agreements in cases unrelated to the above-mentioned legal dispute? No. According to Article 9 of the bilateral investment protection agreement regulating the settlement of disputes between the two contracting states: ‘1. Disputes between the Contracting Parties concerning the interpretation or application of this Agreement shall, if possible, be settled through consultation or negotiation. 2. If the dispute cannot be thus settled within six months, it shall upon the request of either Contracting Party, be submitted to an Arbitral Tribunal of three members, in accordance with the provisions of this Article.’ It is unambiguous that if the dispute is arranged by negotiations (Article 9(1) of the bilateral investment protection agreement), the challenged provisions in concreto do not conflict with Article 9 of the BIT. During the negotiations the representative of the Hungarian Government should emphasize that according to the established constitutional requirement neither Article 4 of the Arbitration Act, nor the Article 17(3) of the National Assets Act should be correlated with articles of bilateral agreements for protection of investments

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providing for settlement of legal disputes between the sovereign states by constituting of arbitral tribunal. If the state does not act as a sovereign but as an economic actor the situation is different. Some provisions of the National Assets Act concern foreign states too, primarily those according to which agreements for utilization of national assets may be concluded only by physical persons and transparent organizations and the foreign states and the organs of the foreign states are qualified as transparent organizations. Since in these cases the state acts through its organs, if the organ of the foreign state is in the position of the investor, the same principles are valid for him, as those set forth by the Constitutional Court herein above concerning the settlement of investment disputes between the Hungarian state and an investor national of another state. (In the case it yet acts as a sovereign state, the constitutional requirement established in Section I/3 refers to it.) Consequently the foreign state may be involved either i) as the state whose national the investor is, or to which he linked, or ii) as the acting economic actor itself. Therefore the constitutional requirement declaring that concerning the international investment protection and economic-natured agreements, Article 17(3) of the National Assets Act and Article 4 of the Arbitration Act should be interpreted with regard to Article 17(1) of the National Assets Act has been established irrespectively to the above-mentioned legal positions of the state. It is the task of the Government to act in accordance with Article 17(3) of the National Assets Act and with Article 4 of the Arbitration Act to renegotiate the agreements if it considers necessary or expedient the continuation of the legal relationship or to terminate them if it does not meet the intent of the other contracting party.

V Is there any conflict with the Washington Convention? No. Articles 25 and 26 of the Washington Convention contain the following provisions: ‘Article 25 1. The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre. When the parties have given their consent, no party may withdraw its consent unilaterally. 2. ‘National of another Contracting State’ means:

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(a) any natural person who had the nationality of a Contracting State other than the State party to the dispute on the date on which the parties consented to submit such dispute to conciliation or arbitration as well as on the date on which the request was registered pursuant to paragraph (3) of Article 28 or paragraph (3) of Article 36, but does not include any person who on either date also had the nationality of the Contracting State party to the dispute; and (b) any juridical person which had the nationality of a Contracting State other than the State party to the dispute on the date on which the parties consented to submit such dispute to conciliation or arbitration and any juridical person which had the nationality of the Contracting State party to the dispute on that date and which, because of foreign control, the parties have agreed should be treated as a national of another Contracting State for the purposes of this Convention. 3. Consent by a constituent subdivision or agency of a Contracting State shall require the approval of that State unless that State notifies the Centre that no such approval is required. 4. Any Contracting State may, at the time of ratification, acceptance or approval of this Convention or at any time thereafter, notify the Centre of the class or classes of disputes which it would or would not consider submitting to the jurisdiction of the Centre. The Secretary-General shall forthwith transmit such notification to all Contracting States. Such notification shall not constitute the consent required by paragraph (1). Article 26 Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy. A Contracting State may require the exhaustion of local administrative or judicial remedies as a condition of its consent to arbitration under this Convention.’ The effect of the jurisdiction of the ICSID (mentioned above as the Centre) may actually be influenced by the government of a state by taking the opportunity provided for by Article 25(1). In other words, the denial of the contracting state to sign the prescribed written consent is one of the obstructions offered by the Convention to the parties to it. Since the list of the ‘constituent subdivisions or agencies of a Contracting State designated to the Centre by’ may be subsequently amended, the Hungarian Government should make the necessary steps to update the list with regard to domestic authorities entitled to dispose of national assets if they are on the list. According to Article 25(4) there is no time-limit

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Summary of Decision No. 14/2013 (VI. 17) AB of the Constitutional Court of Hungary

for such a notification. Another opportunity for Hungary to avoid the conflict of the Article 17(3) of the National Assets Act and Article 4 of the Arbitration Act with the Washington Convention is the necessity of the consent of the state provided for in Article 25(3) of the Convention which the state is not bound to give. Consequently, the conflict of the challenged provisions with the Washington Convention may be prevented without recourse to the constitutional requirement established above.

VI Is there any conflict with the Geneva Convention? No. Articles I, II and X of the Geneva Convention contain the following provisions: Article I – Scope of the Convention 1. This Convention shall apply: (a) to arbitration agreements concluded for the purpose of settling disputes arising from international trade between physical or legal persons having, when concluding the agreement, their habitual place of residence or their seat in different Contracting States; (b) to arbitral procedures and awards based on agreements referred to in paragraph 1(a) above. 2. For the purpose of this Convention, (a) the term: ‘arbitration agreement’ shall mean either an arbitral clause in a contract or an arbitration agreement, the contract or arbitration agreement being signed by the parties, or contained in an exchange of letters, telegrams, or in a communication by teleprinter and, in relations between States whose laws do not require that an arbitration agreement be made in writing, any arbitration agreement concluded in the form authorized by these laws; (b) the term ‘arbitration’ shall mean not only settlement by arbitrators appointed for each case (ad hoc arbitration) but also by permanent arbitral institutions; (c) the term ‘seat’ shall mean the place of the situation of the establishment that has made the arbitration agreement.

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Article II – Right of Legal Persons of Public Law to Resort to Arbitration 1. In cases referred to in Article I, paragraph 1, of this Convention, legal persons considered by the law which is applicable to them as ‘legal persons of public law’ have the right to conclude valid arbitration agreements. 2. On signing, ratifying or acceding to this Convention any State shall be entitled to declare that it limits the above faculty to such conditions as may be stated in its declaration. Article X – Final Clauses 7. The provisions of the present Convention shall not affect the validity of multi-lateral or bilateral agreements concerning arbitration entered into by Contracting States. 9. Any Contracting Party may denounce this Convention by so notifying the Secretary-General of the United Nations. Denunciation shall take effect twelve months after the date of receipt by the Secretary-General of the notification of denunciation. The issue of conflict of the challenged provisions arises with regard to the term ‘arbitration agreement’ defined both as an arbitral clause in contract, and also as an arbitration agreement itself. The answer of this question should be detailed in the relation of i) investment (private international law) agreements in force and ii) agreements which are not signed yet. In the case of the investment agreements in force the constitutional requirement based on Article 17(1) of the National Assets Act precludes any interpretation dispute, i.e. in their relationship there is no conflict with the Geneva Convention. A different issue to be examined: is it possible to deduce from the Geneva Convention and in particular from its Article II(1) an obligation for the state to make possible for the ‘legal persons of public law’ to enter into arbitration agreements pro futuro, i.e. does it protect not only the agreements already in force or it also establishes for them so to say a general facultas de contrahenda? The opportunity for the state to make a declaration under the Article II(2) (by it the state may declare the limits of such activities, prescribed by some particular provision of its domestic law) at first sight supports such an interpretation based on a contrario reasoning. However, it should be stressed that both the English and the French version (which are authentic texts of the Convention) Article I(1) of the Geneva Convention are formulated in past tense (contrary to Hungarian version using present tense): ‘La présente Convention s’applique (a) aux conventions d’arbitrage conclues […].’

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Summary of Decision No. 14/2013 (VI. 17) AB of the Constitutional Court of Hungary ‘This Convention shall apply: (a) to arbitration agreements concluded […].’

This should be taken into consideration since Article II refers to Article I. At the same time the English and the French version of Article II(1) is formulated in present tense (with a Hungarian version conform with them). The Constitutional Court examined the interpretation of the Geneva Convention based on the practice of its application. Some of the parties to this Convention are members of the European Union, but the majority of the EU members are not parties to it. Hungary has entered into bilateral investment agreement with most of the party countries. Belgium and Latvia made declarations in accordance with Article II(2). The Belgian Government declared that in Belgium only the State has, in the cases referred to in Article I(1), the faculty to conclude arbitration agreements. Latvia declared that Article II(1) should not be applied for state authorities and local government authorities. The Constitutional Court notes that France without making such a declaration, in practice limits the opportunities of its local government to enter into arbitration agreements (see articles 2059-2061 of Code Civil). Hungary has not made a declaration. The principle of reciprocity may be validated in relation to the states, which made declarations, or which restrict ex lege their legal persons of public law in entering into arbitration agreements. With regard to the provision of Article X(7), the Constitutional Court refers to its ascertainment in Section 6a)-ii) concerning the bilateral agreements between states. Accordingly, only the pro futuro precluding of the arbitral clause might – in certain interpretation – conflict with the Geneva Convention and only in the case when the activity under the National Assets Act is of commercial nature in the sense of the Geneva Convention. The National Assets Act covers at least one activity of commercial nature: the offer for sale of the Kyoto units under the Kyoto Protocol to the Framework Convention on Climate Change, since the Kyoto units ar classified as national wealth by Article 1(2f) of the National Assets Act. Nevertheless, the Constitutional Court takes the standpoint that the option of the denunciation under Article X(9) is open and it is up to the Government to choose – if necessary – the way to preclude conflict with the Geneva Convention which may be: i) the denunciation of the Geneva Convention; ii) the denunciation of the Geneva Convention and re-accession to the same with a concurrent declaration precluding the conflict with domestic provisions.

VII Is there any conflict with the New York Convention? No.

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Articles I and II of the New York Convention contain the following provisions relevant to the issue: Article I 1. This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought. Article II 1. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration. The Constitutional Court ascertains that in regard of the ‘differences between persons, whether physical or legal’ the Article I of the New York Convention shall apply to the arbitral awards already made and the Article II of the same Convention refers to the agreements in force which provide basis for the awards. Since the provisions of the Article 17(3) of the National Assets Act and of Article 4 of the Arbitration Act a priori do not relate to the previously made arbitral awards and since the constitutional requirement established in regard to Article 17(1) provides sufficient guarantees for the international agreements of private law nature in force, a conflict with the New York Convention cannot arise.

VIII 1. The Constitutional Court came to the conclusion that protection of established rights needs an establishment of a constitutional requirement concerning the interpretation of Article 17(1) of the National Assets Act. Consequently, the conformity of domestic law with international law provided for by Article Q) of the Fundamental Law does not require the establishment of unconstitutionality of Article 17(3) of the National Assets Act and Article 4 of the Arbitration Act and their annulment. Therefore the Constitutional Court rejected the petition submitted by the Commissioner for Fundamental Rights.

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Summary of Decision No. 14/2013 (VI. 17) AB of the Constitutional Court of Hungary

The Constitutional Court is entitled to establish a constitutional requirement by Article 46(3) of the Act No. CLI of 2011 on the Constitutional Court and by proceeding in line with it the Court also took into consideration its continuous practice to show forbearance towards the legal rules in force. 2. The extension of the constitutional requirement to Article 55(1) lit. b) and (2) lit. a) of the Arbitration Act is necessary due to the close correlation of these provisions with Article 4 of the same Act. 3. The Constitutional Court observes that in the course of the duration of the abovementioned agreements of private law nature and also of the bilateral interstate agreements the Hungarian party may initiate the modification of such an agreement in order to enforce the provisions of the Article 17(3) of the National Assets Act and Article 4 of the Arbitration Act but such a modification may be reached only with the consent of the other contracting party. A dissident opinion signed by two judges was attached to the decision.1 This document is only a summary and it does not bind the Court. The full text in Hungarian can be read on the site of the Constitutional Court: www.mkab.hu.

1

The reporting judge of the Decision was Judge Péter Kovács.

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Mónika Ganczer*

37.1

Petition

Article 38 of the Fundamental Law of Hungary provides that ‘[t]he property of the State and of local governments shall be national assets’, which shall be regulated by cardinal act.1 The Act No. CXCVI of 2011 on National Assets (hereinafter: Act on National Assets) was accordingly adopted and entered into force on 1 January 2012, containing a prohibition for those who are entitled to dispose of national assets within the borders of Hungary to stipulate in civil law contracts records to arbitration in cases of disputes.2 The Act No. LXXI of 1994 on Arbitration (hereinafter: Act on Arbitration) was amended by Act No. LXV of 2012 in conformity with this prohibition, precluding procedures before ad hoc or permanent arbitrary tribunals premised (seated) within or outside Hungary in cases where the subject-matter of the dispute is a national asset located in Hungary or any right, claim, demand pertaining thereto.3 The amending act further set forth that this rule has to be applied in procedures initiated after the entry into force; that is after 13 June 2012, of the amendment. The petition was received by the Constitutional Court on 18 December 2012, in which Máté Szabó then Commissioner for Fundamental Rights requested the review of conformity with the Fundamental Law and the examination of conflicts with international treaties of the aforementioned provisions of the Act on National Assets and the Act on Arbitration on the basis of Articles 24(2) and 32(2) of the Act No. CLI of 2011 on the Constitutional Court. Explaining his request, the petitioner pointed out that the provisions concerned, by prohibiting the stipulation of procedures of arbitrary tribunals and precluding such proceedings in certain cases, were in conflict with Article II(1)-(2) of the European Convention on International Commercial Arbitration of 1961 (hereinafter: the Geneva Con-

*

1 2 3

Research fellow, Hungarian Academy of Sciences, Centre for Social Sciences, Institute for Legal Studies; Assistant professor, Széchenyi István University, Deák Ferenc Faculty of Law and Political Sciences. E-mail: [email protected]. The Fundamental Law of Hungary, Art. 38(1)-(2). Act No. CXCVI of 2011 on National Assets, Art. 17(3). Act No. LXXI of 1994 on Arbitration, Art. 4, amended by Act No. LXV of 2012.

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Mónika Ganczer vention),4 Article II(1) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (hereinafter: the New York Convention),5 and Article 25 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 1965 (hereinafter: the Washington Convention).6 The Commissioner also referred to Article Q) (2) of the Fundamental Law, of which ‘Hungary shall ensure that Hungarian law be in conformity with international law’ as well as to several Constitutional Court decisions. The petitioner submitted that the objectionable provisions were incompatible with the rule of law. He claimed that the provision of the Act on National Assets was not sufficiently precise and clear, and confounded the subjective and objective sides of the legal relation sought to be regulated, thereby violating the requirement of clarity of norms. In addition, the provision of the Act on Arbitration excluded the procedure of arbitration tribunals rather than the submission to arbitration. The petitioner suggested that the paragraph could be interpreted in a way that procedures before arbitration tribunals cannot take place on the basis of arbitration clauses of agreements concluded prior to its entry into force. Thus he also claimed that the provision violated the rule of law by rendering agreements concluded before its entry into force inapplicable, and would unilaterally affect the implementation of international treaties mentioned above.

37.2

Majority Decision

The rapporteur of the case was Judge Péter Kovács; the decision7 was adopted by the majority of the Court, with two judges dissenting. Members of the Constitutional Court first examined the possibility of conflict between the provisions and international treaties. The Constitutional Court recalled the obvious fact that the provisions under review did not have a bearing on arbitration clauses of agreements concerning a subject matter other than national assets. Hence the Court examined the provisions of the Act on National Assets and the Act on Arbitration in a specific context. It maintained that these provisions could only affect previously concluded investment agreements concerning national assets, containing an arbitration clause, and as such could directly or indirectly affect international treaties. Consequently it analysed the possibility of conflicts with bilateral investment agreements, the Washington Convention, the Geneva Convention, and the New York Convention.

4 5 6 7

1961 European Convention on International Commercial Arbitration, 484 UNTS 349. 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 330 UNTS 3. 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 575 UNTS 159. Decision No. 14/2013 (VI.17) of the Constitutional Court.

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The Constitutional Court first examined the bilateral investment treaties, and stated that Article 3(2) of the Act on Arbitration ‘could, in principle, be applied to the state as an economic operator, and, by way of grammatical interpretation, even to the state as the bearer of sovereignty’. This paragraph indicates that if an act permits, the procedure of arbitration tribunals can be stipulated even if the requirement that at least one of the parties must be a person engaged in economic activities as a profession and the dispute concerns that activity is not met. The Court did not survey the almost sixty bilateral investment treaties of Hungary, but took the treaty concluded with Azerbaijan in 20078 as a model, which was almost literally identical with other treaties of Hungary, and corresponded to the sample treaty prepared by the United Nations Conference on Trade and Development. The need for arbitration may arise on the basis of these bilateral agreements between the state and an investor of the other state, if they cannot settle the dispute by negotiations, and the investor does not submit the dispute to the competent court of the state. In this case, the investor is entitled to submit the dispute to arbitration tribunals: to the International Centre for Settlement of Investment Disputes (ICSID) under the provisions of the Convention on the Settlement of Investment Disputes between States and Nationals of other States, or to an ad hoc arbitral tribunal established under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL). The majority decision of the Court pronounced that Article 17(1) of the Act on National Assets – rights and obligations acquired lawfully and in good faith before the entry into force of the act are not affected by the act, but the extension of duration of these agreements qualifies (save for a few exceptions) as an establishment of a new legal relation – ‘applies in any case to agreements (of international investment, economic nature) in force on 1 January 2012 between state organs and investors’ had to be formulated ‘as a constitutional requirement’, ‘so that no violation occur in relation to either ICSID or UNICITRAL’. The Court arrived at a similar conclusion with respect to cases, where a state was an economic partner, and as such, was in a position of an investor in relation to another state. Therefore, the Court deemed it necessary to note that the government – if it wishes to uphold the given legal relation – must ensure the renegotiation of these agreements before their expiry. The Constitutional Court likewise analysed potential disputes between contracting states concerning the interpretation or application of these bilateral treaties, where the submission of the dispute to an arbitral tribunal might be called for. The Court ‘stated as a constitutional requirement’ that the Act on Arbitration and Article 17(3) of the Act on National Assets ab ovo could not be applied to the arbitral regulations of these treaties (i.e. to those, which deal with the settlement of disputes between two sovereign states).

8

2007 Agreement between the Republic of Hungary and the Republic of Azerbaijan for the promotion and reciprocal protection of investments, Baku, 18 May 2007.

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In spite of all that, the Court suggested the government to take action with a view to re-concluding bilateral agreements in the light of the new provisions of the Act on Arbitration and the Act on National Assets, or to withdraw from such agreements, should these conditions prove unacceptable for the partner state. The Court then turned to examine the conflict with the Washington Convention, the Geneva Convention, and the New York Convention. It pointed out that the jurisdiction of ICSID as laid down by the Washington Convention could be influenced by states through the consent in writing required by Article 25(1), the modification of the list of constituent subdivisions or agencies of the state, or the approval of the state following the consent of the constituent subdivisions or agencies included in Article 25(3). The majority decision of the Court declared that the government must take appropriate measures in order to designate national assets as a limitation for listed organs, and to remove organs from the list that have the right to dispose of national assets. It qualified all of these measures sufficient to ‘prevent the emergence of the conflict […] even without’ declaring Article 17(1) of Act on National Assets as a constitutional requirement in line with what has been mentioned above. The Court indicated that in the case of investment agreements already concluded under the purview of the Geneva Convention, the conformity of domestic law with international law could be ensured by declaring Article 17(1) of the Act on National Assets as a constitutional requirement, thought it held possible that ‘the state is bound to provide for ‘legal persons of public law’ to conclude arbitral agreements pro futuro’. Thus the body presumed that the exclusion of conclusion of such agreements by the provisions of the Act on National Assets and the Act on Arbitration ‘may be in conflict’ with the Geneva Convention. The majority opinion held that the government had to decide whether it wished to withdraw from the convention, or withdraw from and accede to it by making a restrictive declaration – essentially by making a reservation – according to Article II(2) of the convention in order to ‘preclude the chance of conflict’. As regards the New York Convention, the Court observed that the convention concerned arbitral decisions that had already been made, and existing contracts with a public international law character. Since the Act on National Assets and the Act on Arbitration did not have a bearing on the former, and the rule declared as a constitutional requirement provided guarantee for the latter, the judges could not determine a breach of the New York Convention. The Constitutional Court subsequently carried out a joint review of the conformity of provisions concerned with the Fundamental Law by referring to the close connection, textual similarity and substantive equivalence of the analysed provisions of the two acts. The majority opinion held that the appendices of the Act on National Assets enumerating the natural, cultural and property elements that form part of national assets were sufficient

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to meet the requirement of the clarity of norms, and as such, to preclude a conflict with the rule of law under Article B) (1) of the Fundamental Law. In the course of analysing the obligation of ensuring the conformity of domestic law with international law under Article Q) (2) of the Fundamental Law, the Court referred back to the examination of conflicts with international treaties. The constitutional requirement concerning acquired rights was sufficient to ensure conformity, and offers an adequate means to solve eventual problems. In addition, the Court underlined that ‘a conflict would only occur in case certain conditions prevailed, and certainly not with respect to all affected international treaties (nor all states parties)’. Hence it did not consider necessary to annul the provisions concerned. The Constitutional Court substantiated that by having claimed to proceed under Article 46(3) of the Act on Constitutional Court and its position conformed to the established practice of ‘sparing of laws’. The Constitutional Court rejected the requests to determine the unconstitutionality and conflict with international treaties and pronounce the annulment of Article 17(3) of the Act on National Assets and Article 4 of the Act on Arbitration. The ratio decidendi of the decision was the declaration of three constitutional requirements, the first two of which was based on Articles B) (1) and Q) (2) of the Fundamental Law and consisted of the contextual interpretation and application of legal provisions. First, the Constitutional Court referred to the joint interpretation and application of Articles 17(3) and 17(1) of the Act on National Assets as a constitutional requirement. Consequently, the provision that those who are entitled to dispose of national assets cannot stipulate records to arbitration in cases of disputes does not affect the ‘rights and obligations acquired lawfully and in good faith before the entry into force of the act’. The other constitutional requirement was the joint interpretation and application of the formula ‘and in a case in which the subject-matter of the dispute is a national asset located in the territory confined by the border of Hungary under Act No. CXCVI of 2011 on national assets or any right, claim or demand pertaining thereto’ in Article 4 of the Act on Arbitration and Article 55(1) b) and (2) a) on requests concerning the annulment of arbitration awards, and the aforementioned Article 17(1) of the Act on National Assets. The Court recalled with regard to both constitutional requirements that they pertained to investment and venture agreements between Hungary and legal persons of other states, which were affected by the Act on National Assets, and were in force on 1 January 2012. According to the third constitutional requirement, the Act on Arbitration and Article 17(3) of the Act on National Assets ‘are not applicable to and do not affect’ provisions of bilateral investment agreements, which envisage the establishment of arbitral tribunals for the settlement disputes between contracting parties.

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37.3

Dissenting Opinion

Judge Egon Dienes-Oehm attached a dissenting opinion to the decision, seconded by Judge Péter Paczolay. The dissenting opinion held that the Court should have pronounced that the provisions concerned of the Act on National Assets and the Act on Arbitration were in conflict with international treaties, and should have annulled these provisions, or should have invited the law-maker to take the necessary measures to resolve the conflict. The dissenting opinion qualified the constitutional requirements declared in the decision as hard to follow, and held that the conflict with international treaties could not be eliminated by those requirements, as the ‘fact of violation has already occurred’. Therefore, the dissenting opinion considered it a legal fact that the violation of the Geneva Convention had already occurred by the entry into force of the examined provisions of law. Since Hungary did not make a reservation to the convention, the dissenting opinion declared that the subsequent limitation by domestic law of arbitral procedure ensured by the convention qualified as a breach of an international obligation. As regards bilateral investment agreements, the dissenting opinion recalled the cases, where the state or state organ is involved as a private legal subject with a foreign legal subject as investor. The dissenting opinion underlined that bilateral agreements contained ‘the future possibility of the choice of arbitration as a method of dispute settlement’, which could not be excluded by domestic law. Thus it emphasized that the constitutional requirement concerning acquired rights, as invoked by the majority decision, only protected arbitral agreements concluded on the basis of bilateral international agreements, and did not have a bearing on the general and future possibility of arbitration, e.g. the ICSID established by the Washington Convention, as ensured by those treaties. As regards the Washington Convention, the dissenting opinion – similarly to the majority decision – recalled that according to Article 25(4) states parties may notify the Centre at any time of the classes of disputes, which it would not consider submitting to the jurisdiction of ICSID. However, it underlined that Hungary had not yet made such a notification concerning disputes on national assets. In the course of analysing the conflict with international treaties, the Judges dissenting declared that the provisions examined were in conflict with the Geneva Convention and several bilateral investment agreements, and were not in conformity with other international treaties, as they revoked a possible dispute settlement method, with which the partners could count. In the latter case, the dissenting opinion referred to the Washington Convention, the New York Convention (which was not otherwise mentioned), as well as to the Geneva Convention. The dissenting opinion recalled the fulfilment in good faith of international obligations as an element of the rule of law (Article B) (2) of the Fundamental Law), and the requirement of ensuring the conformity of domestic law with international law (Article Q) (2) of

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the Fundamental Law). The dissenting opinion held that the Constitutional Court should have ‘annul[led], as a general rule, the law conflicting with international law’. The ‘other possibility’ mentioned by the dissenting opinion was that the Constitutional Court should have invited the law-maker to resolve the conflict under Article 42(2) of the Act on the Constitutional Court. The dissenting opinion also suggested as a possible solution the changing of domestic law: the provisions concerned may either be terminated or amended so that they become inapplicable in cases when international treaties stipulate otherwise.

37.4

Assessment

The decision of the Constitutional Court reviewed the alleged conflict with the Fundamental Law and international treaties of provisions held objectionable by the petitioner in a logical and well-structured manner. It duly considered possible scenarios in the conclusion of bilateral investment agreements as well as the relevant multilateral treaties. The point of departure of the decision seems to be the assumption that international treaties in the field of investment only protect already existing bilateral private investment agreements, and as such, they primarily seek to provide a safe and calculable normative environment, including the possibility of having recourse to dispute settlement mechanisms, for investors, who conclude private law contracts with the state or organs of the state. However, prior to the adoption of the decision, a rather different position was articulated in the legal literature, which holds that obligations arising from investment protection treaties have a much wider scope, and offer the possibility of recourse to arbitration as a dispute settlement mechanism to future investors, as well.9 In other words, these treaties likewise formulate demands with regard to the contents of private law contracts that will only be concluded at a later date, and actually seek to secure that states mutually assist their respective investors by laying down the essential conditions of future investments. In the case of bilateral investment agreements the obligation pertains to investments established by private law contracts. The state is obliged to conclude contracts with investors with very specific conditions rather than to generally accept investments for the future. The obligation, therefore, pertains to the contents of future contracts, not the conclusion of such contracts. At present, the Hungarian state cannot conclude private law investment contracts concerning its national assets. If the state concluded such a contract, it would not be able to preclude the stipulation of arbitration on account of its international obligations, but the stipulation of arbitration would contradict its domestic law.

9

L. Kecskés and P. Tilk, ‘A választottbírósági kikötés hazai jog szerinti tilalmának Alaptörvénybe, illetve nemzetközi jogba ütközése’ [The incompatibility with the Fundamental Law as well as international law of the prohibition of the stipulation of arbitration under domestic law] 12(2) Európai Jog (2012), p. 18.

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The Constitutional Court examined three scenarios with respect to bilateral investment protection agreements, the first two of which – namely, the relationship of the state and the investor of another state and that of the state and another state as investor – may be assessed together due to the similarities of relevant findings. In both cases, the Court pronounced the inviolability of acquired rights as a constitutional requirement. This requirement indeed protects private law contracts that were in effect as of 1 January 2012, which rules out the possibility of a conflict with international treaties. The Court only spelled out the objective of the constitutional requirement at issue: to prevent violations in the relations of both ICSID and UNICITRAL. The basis of the constitutional requirement, however, remained in obscurity, though it would have greatly reinforced the adequacy of its invocation. First, the Court could have referred to Article B) (1) of the Fundamental Law, and recalled that the protection of acquired rights originates from the rule of law, and can also be deduced from the prohibition of retroactive effect. Second, with regard to Article 17(1) and (3) of the Act on National Assets, the joint interpretation and application of the act offers an additional basis, which lies in the act, and does not call for its pronunciation as a constitutional requirement. The Constitutional Court rightly observed that the provisions of the Act on Arbitration and the Act on National Assets are not applicable to the third scenario concerning bilateral agreements, that is, when the necessity of arbitration materializes in a dispute between states parties. This conclusion may too be deduced from the contents of these provisions, and as such, its pronouncement as a constitutional requirement does by no means produce, but merely reinforces that outcome. The Constitutional Court, therefore, did not consider the provisions concerned to be in conflict with bilateral international agreements, still it called upon the government to re-conclude such agreements in the light of these provisions before their expiry, or, if the other contracting party does not concur, to withdraw from such agreements. At this point one should recall the peculiar temporal effect of bilateral investment protection agreements. For example, the agreement concluded with Azerbaijan remains in force for a ten-year period, afterwards automatically prolonged for consecutive ten-years periods, until one of the parties notifies the other party in writing about the termination of the agreement at least one year before the end of the actual ten-year period. Another noticeable provision is that in respect of investments made prior to the termination of the agreement; the provisions of the agreement shall continue to be effective for a period of ten years from the date of termination. The Washington Convention envisages the establishment of the ICSID, and prescribes strict requirements for its jurisdiction. I agree with the statement of the Constitutional Court that a conflict between domestic law and international law may not emerge due to

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the fact that consent is required for its jurisdiction,10 and due to the notifications under Article 25(4). Since states are entitled rather than obliged to make notifications (‘may […] notify’), the obligation of the government to take measures as mentioned in the decision may at best be deemed a recommendation. Nevertheless, a notification should be made in order to inform other state parties. As regards the Geneva Convention, we may recall, similarly to the Court itself, the observations of the Constitutional Court concerning bilateral investment agreements. It should be added that the possible interpretation mentioned by the Court in fact covers the meaning of the provision in the sphere of international law.11 If the chance of a conflict truly exists, the recommendation of the Court to withdraw from the convention or later accede thereto with a reservation seems problematic. The convention was promulgated by a law-decree, which shares the position of acts in the domestic hierarchy of sources of law, the eventual conflict of which is not unequivocally regulated by the Act on the Constitutional Court. The formula ‘according to the Fundamental Law, shall not be in conflict’ in that act offers little guidance here.12 Hence the Constitutional Court is free to decide whether it applies Article 42(1) or (2) of the Act on the Constitutional Court, and to suggest the annulation of the law in whole or in part, or to invite the government or the law-maker to take the necessary measures with a view to resolving the conflict.13 The latter can equally mean the adjustment of domestic law to international law or the amendment or termination of the international treaty, as appropriate. It should be emphasized that both the previous regulation and the practice of the Court prescribed14 or favoured15 the annulation of the domestic enactment or its adjustment to international standards – solutions that may too offer guidance in our case. The analysis and conclusion focusing on the New York Convention is adequate, and confirms that at this point a conflict with an international treaty does not occur either.

10 See J. Katona, ‘Néhány megjegyzés a nemzeti vagyont érintő választottbírósági kikötés tilalma és a beruházásvédelem nemzetközi jogi szabályainak konfliktusáról’ [Some remarks on the conflict of the prohibition of the stipulation of arbitration concerning national assets and the international legal rules of investment protection], 12(6) Európai Jog (2012), p. 25. 11 Decision No. 30/1998 (VI.25) of the Constitutional Court; Decision No. 54/2004 (XII.13) of the Constitutional Court, dissenting opinion of Judge István Kukorelli; G. Sulyok, ‘A nemzetközi jog és a belső jog viszonyának alaptörvényi szabályozása’ [The relationship of international law and domestic law under the Fundamental Law], IV(1) Jog – Állam – Politika (2012), p. 33. 12 For the constitutional prohibitions of conflicts see Sulyok, 2012, p. 39, note 94. 13 Cf. L. Blutman, ‘A nemzetközi jog hatásai az alkotmánybírósági eljárásokban’ [The effects of international law in constitutional court procedures], (4) Jogelméleti Szemle (2013), p. 21, note 52; L. Blutman, ‘A nemzetközi jog érvényesülése a magyar belső jogban: joghatások’ [The enforcement of international law in Hungarian domestic law: legal effects], in L. Blutman et al. (Eds.), A nemzetközi jog hatása a magyar joggyakorlatra [The effect of international law on Hungarian legal practice], HVG-ORAC, Budapest, 2014, p. 153. 14 Act No. XXXII of 1989 on the Constitutional Court, Art. 45(1). 15 Decision No. 30/1990 (XII.15) of the Constitutional Court, Decision No. 15/2004 (V.14) of the Constitutional Court.

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Mónika Ganczer

Remarkably, the Constitutional Court did not react to each and every issue raised in the petition concerning the alleged inconformity with Article B) (1) of the Fundamental Law. The objections regarding the clarity of the Act on National Assets were dismissed with reference to the annexes of the act, but failed to refute the statement that the Act on Arbitration prohibits the stipulation of the procedure of arbitration tribunals rather than arbitration itself. The Court extended the review of conformity with the Fundamental Law in the light of its Article Q) (2), which sets forth the obligation to ensure harmony between domestic law and international law. It should be noted as a minor correction that the absence of harmony may be determined even if it does not involve all relevant international treaties and states parties, a single conflict between norms is totally sufficient for that. The principle of rule of law as declared by Article B (1) may likewise be brought to mind here, for it also covers ‘conformity with international legal obligations assumed by the Hungarian state’,16 or in other words, the fulfilment of international obligations in good faith.17 For that reason, the termination of international obligations as a means of ensuring harmony undermines not only the international legal order, but also the rule of law. The importance of the decision is clearly demonstrated by the academic debate that commenced in the wake of the entry into force of the provisions concerned over their conformity with the Fundamental Law and international treaties.18 Nevertheless, its practical effects remain to be seen, and are greatly dependent on the measures the government would take in the field of investment protection.

16 Decision No. 7/2005 (III.31) of the Constitutional Court. 17 T. Molnár, A nemzetközi jogi eredetű normák beépülése a magyar jogrendszerbe [The incorporation of norms originating from international law into the Hungarian legal system], Dialóg Campus Kiadó – Dóm Kiadó, Budapest – Pécs 2013, p. 221. 18 Kecskés and Tilk, 2012, p. 18; Katona, 2012, p. 25.

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The Hungarian Constitutional Court’s Judgment on Hungary’s New Anti-Arbitration Rules

Csongor István Nagy*

38.1

Introduction

In 2011 and 2012, the Hungarian parliament excluded, the possibility to use arbitration for the settlement of disputes concerning (Hungarian) national property. Since the statutory definition of ‘national property’ is very wide and virtually covers all assets owned by Hungary,1 these provisions, in essence, eliminated the possibility of stipulating arbitration in contracts concerning state property. In 2013, the Hungarian Constitutional Court (CC), upon the request of the Commissioner for Fundamental Right, scrutinized the foregoing provisions as to whether they go counter to Hungary’s international obligations, in particular the 1961 Geneva Convention, the 1958 New York Convention, the 1965 Washington Convention and the bilateral investment-protection treaties signed by Hungary (BITs). The new provisions raised constitutional concerns from two perspectives. First, it was doubtful whether these rules comply with the treaty law on arbitration and the requirements of the Hungarian Fundamental Law, that is, whether they are acceptable as to substance (substantive concerns). Second, in case the provisions did not fall foul of the foregoing international norms, it was to be analyzed whether their temporal scope could have retrospective effects, thus resulting in an unconstitutional plight (concerns connected to temporal scope). Although these two facets were not analyzed by the CC separately, in the following these two points will be distinguished. *

1

Ph.D., LL.M., S.J.D, dr. juris, associate professor and head of the Department of Private International Law at the University of Szeged, leader of the Federal Markets “Momentum” Research Group at the Hungarian Academy of Sciences, attorney-at-law admitted to the Budapest Bar, visiting professor at the Sapientia University of Transylvania and at the Riga Graduate School of Law. This paper was written with the generous support of the Hungarian Scientific Research Fund, within the frame of the OTKA PD-101612 research program. The author is indebted to Professor Tibor Várady, university professor at the Central European University in Budapest/New York and professor emeritus at the Emory University in Atlanta, and Dr. Judit Tóth, associate professor and head of the Department of Constitutional law at the University of Szeged, for their help and comments on the earlier draft of this paper. Of course, all views and any errors remain the author’s own. Section 1(2) of Act CXCVI of 2011 on National Property.

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38.2

The New (Anti-Arbitration) Provisions Adopted in 2011 and 2012

The new anti-arbitration regime rests on two pillars: a prohibition against persons (entities) having the right of disposition over national property to stipulate arbitration (either foreign, or Hungarian), embedded in Section 17(3) of the Act on National Property2 (hereafter, by way of shorthand: Section 17(3)), and the pronouncement of disputes concerning national property to be non-arbitrable, enshrined in Section 4 of the Act on Arbitration3 hereafter, by way of shorthand: Section 4). In this paper, the term ‘new provisions’ or ‘anti-arbitration provisions’ refers to these provisions. First, persons (entities) having the right of disposition over national property are prohibited from stipulating arbitration in civil law contracts concerning national property. Section 17(3) provides that in civil law contracts concerning national property located on the territory of Hungary (‘being on the territory delimited by the borders of Hungary’), the person having the right of disposition over the national property can stipulate only Hungarian language, Hungarian law and, for the case of a legal dispute, the jurisdiction of Hungarian courts, with the exclusion of arbitration; the person having the right of disposition over the national property cannot stipulate arbitration for the settlement of these legal disputes. Accordingly, the person (entity) in charge is enjoined from entering into any obligation that would make legal disputes concerning national property subject to arbitration. In respect of the temporal scope of the rules, Section 17(1) of the Act on National Property provides that the provisions of the Act do not concern the rights and obligations that were acquired lawfully and in good faith before the Act’s entry into force. In other words, the prohibition embedded in Section 17(3) has no retrospective effects. Second, the scope of non-arbitrable cases, as defined in Section 4, was extended to legal disputes the subject-matter of which concerns national property that comes under the scope of the Act on National Property and is located on the territory of Hungary (‘on the territory delimited by the borders of Hungary’) or any right, claim, demand related to this.4 Accordingly, this provision made legal disputes connected to national property nonarbitrable. While as to Section 17(3) one could have argued that it embeds only a command addressed to the person in charge of disposing of the national property and this rule does not make the stipulation of arbitration invalid (i.e. it contains no general prohibition on arbitration), the subsequent amendment of Section 4 of the Act on Arbitration lifted this uncertainty and made the exclusion of arbitration watertight – at least on the national level (see prologue).

2 3 4

Act CXCVI of 2011. Act LXXI of 1994. This was inserted by Section 2 of Act LXV of 2012 and entered into force on 13 June 2012.

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Surprisingly, and contrary to Section 17(3), the amendment of Section 4 of the Arbitration Act does not try to obviate retrospective effects: the amending statute provides that the extension of non-arbitrability has to be applied in procedures launched after the amendment’s entry into force, that is, 13 June 2012.5 In other words, the statutory language makes it clear that the rule that legal disputes concerning national property are not arbitrable does apply to covenants lawfully and validly concluded before 13 June 2012. The relevant point of time is the start of the procedure: only pending matters were immune to this rule. Therewith, Section 4 was destined to unilaterally invalidate all arbitration covenants Hungary was party of.

38.3

The Request of the Commissioner for Fundamental Rights

The Commissioner for Fundamental Rights request the CC to establish the unconstitutionality of the new anti-arbitration provisions on the basis that these provisions infringe the 1961 Geneva Convention, the 1958 New York Convention, the 1965 Washington Convention and the bilateral investment-protection treaties concluded by Hungary and go counter to the requirement of legal certainty.6 Article II(1) of the 1961 Geneva Convention expressly establishes that public entities shall have to right to enter arbitration agreements. Although Article II(2) of the Convention permits signatory states to enter a reservation limiting the foregoing right to arbitration, Hungary made no such reservation. It is to be noted that albeit that Article II(2) does embed the possibility to make a reservation, the exercise of this right is limited in terms of time: signatory states can submit such a reservation only when ‘signing, ratifying or acceding’ to the Convention. Article II – Right of Legal Persons of Public Law to Resort to Arbitration 1. In cases referred to in Article I, paragraph 1, of this Convention, legal persons considered by the law which is applicable to them as ‘legal persons of public law’ have the right to conclude valid arbitration agreements. 2. On signing, ratifying or acceding to this Convention any State shall be entitled to declare that it limits the above faculty to such conditions as may be stated in its declaration. According to the Commissioner, the violation of Article II(1) of the 1961 Geneva Convention gives rise also to the violation of Article II(I) of the 1958 New York Convention, which provides that contracting states have to recognize written arbitration agreements covering 5 6

Section 4 of Act LXV of Act 2012. The Commissioner’s request is presented in Paras. 1-12 of the CC’s judgment.

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arbitrable matters: since arbitration agreements entered into by public entities are arbitrable, Article II(I) of the 1958 New York Convention obliges contracting states to recognize these agreements. Article II I. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration. According to Article 25 of the 1965 Washington Treaty, although the jurisdiction of the International Centre for Settlement of Investment Disputes (ICSID) is not mandatory, that is, the ICSID has jurisdiction only if ‘the parties to the dispute consent in writing to submit to the Centre’, once the parties agree to the jurisdiction of the ICSID, ‘no party may withdraw its consent unilaterally.’ However, contracting states may exclude certain classes of disputes from the jurisdiction of the ICSID; the exercise of this right of reservation is not time-barred: this may occur ‘at the time of ratification, acceptance or approval of this Convention or at any time thereafter’. Article 25 1. The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre. When the parties have given their consent, no party may withdraw its consent unilaterally. (…) 3. Consent by a constituent subdivision or agency of a Contracting State shall require the approval of that State unless that State notifies the Centre that no such approval is required. 4. Any Contracting State may, at the time of ratification, acceptance or approval of this Convention or at any time thereafter, notify the Centre of the class or classes of disputes which it would or would not consider submitting to the jurisdiction of the Centre. The Secretary-General shall forthwith transmit such notification to all Contracting States. Such notification shall not constitute the consent required by paragraph (1).

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38.4

The Hungarian Constitutional Court’s Judgment on Hungary’s New Anti-Arbitration Rules

The Judgment of the Constitutional Court

In essence, the CC rejected the request of the Commissioner for Fundamental Rights on the basis that the exclusion of arbitration does not violate treaty law categorically and the frustration of legitimate expectations can be tackled effectively through the adoption of ‘constitutional requirements’, which ensure that the new exclusions cannot be applied to currently effective arbitration agreements and treaties.7 First, as to substantive concerns, it established that the incriminated provisions either do not infringe treaty law, or the tension can be lifted by Hungary, by way of example, through making a reservation or denouncing the relevant convention; although acknowledging that the parliament needs to take the necessary measures, it failed to adopt any disposition calling the parliament to do this. As to the domain of investment protection, the CC established that the BITs effective at the time of the new provisions’ entry into force are not covered by the new anti-arbitration provisions; it is the government’s duty to ensure that the new provisions and future BITs will be in line with each other.8 This covers investor-state disputes, including cases where the foreign state acts as a private investor. The Constitutional Court stated that the new provisions, ratione materiae, do not cover inter-state disputes; hence, the problem non-compliance does not emerge in this regard.9 The CC also found that the new provisions do not infringe the 1965 Washington Convention either, since Hungary has various methods to bring Hungarian law in line with the Convention.10 For instance, according to Article 25(3) of the 1965 Washington Convention, state entities’ assent to the jurisdiction of ICSID can be made dependent on the state’s approval. Article 25 3. Consent by a constituent subdivision or agency of a Contracting State shall require the approval of that State unless that State notifies the Centre that no such approval is required.’ Furthermore, a contracting state can exclude certain classes of disputes from the jurisdiction of the ICSID and this reservation can be submitted at any time.

7 8 9 10

Paras. 21-92. Paras. 40-41 and 48-52. Para. 47. Paras. 55-57.

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Article 25 4. Any Contracting State may, at the time of ratification, acceptance or approval of this Convention or at any time thereafter, notify the Centre of the class or classes of disputes which it would or would not consider submitting to the jurisdiction of the Centre. The Secretary-General shall forthwith transmit such notification to all Contracting States. Such notification shall not constitute the consent required by paragraph (1). The new provisions’ conformity with the 1961 Geneva Convention was more difficult to demonstrate. The CC held that in case Article II(1) of the 1961 Geneva Convention does authorize public entities to enter into arbitration agreements (that is, the Court, notwithstanding the clear treaty language, did not take the existence of such a right as granted), the Convention ensures the possibility for Hungary to opt-out from this.11 The mechanism suggested by the Court is rather odd: albeit that such a reservation limiting the right to arbitration is time-barred (Article II(2) provides that such a reservation can be made only ‘[o]n signing, ratifying or acceding to’ the Convention), Hungary could denounce the Convention on the basis of Article X(9) and then re-enter the Convention, this time with the reservation permitted by Article II(2).12 Such a denunciation would take effect twelve months after the date the Secretary-General receives the notification of denunciation. As to concerns connected to temporal scope, the CC held that it is a ‘constitutional requirement’ that the new rules cannot frustrate legitimate expectations and cannot affect arbitration agreements that were validly concluded before the new provisions’ entry into force. This principle appeared explicitly in Section 17(1) of the Act on National Property; however, no such rule was established as to Section 4; on the contrary, with the exception of pending procedures, the extension of non-arbitrability entered into force with immediate effect.13 Interestingly, the CC extrapolated the rule embedded in Section 17(1) of the Act on National Property (that is, acquired rights cannot be impaired) to new Section 4 of the Arbitration Act, as if Section 17(1) were applicable to the latter as well. This is an odd construction, since the purpose of ‘constitutional requirements’ is not to amend or override the law (if this is needed, the law has to be set aside); ‘constitutional requirements’ can be used when the law can be interpreted in more than one way and, hence, the judge or authority can construct it in a constitutional manner without overriding the law itself. This condition was obviously not met here, since the amending act that extended nonarbitrability to cases concerning national property expressly provides that this exclusion

11 Paras. 64-65. 12 Para. 75. 13 Paras. 40, 51 and 63.

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does intrude into existing legal relationships and solely pending procedures are immune from the rule of non-arbitrability.

38.5

Dissenting Opinion

Justice Egon Dienes-Oehm dissented; his opinion was joined by Justice Péter Paczolay, the CC’s president. He opined that the CC should have quashed the new provisions; or it should have called the legislator to take the necessary measures necessary for lifting the contradiction between arbitration treaty law and the new provisions and set a deadline for this.14 Albeit that the lack of conformity appears in the CC’s decision, it tries to tackle the contradiction with obscure ‘constitutional requirements’. As to the 1961 Geneva Convention, Justice Dienes-Oehm established that the violation of the treaty occurred already at the time the new provisions entered into force.15 Since Hungary made no reservation under Article II(2) of the Convention, it had the duty to ensure that public entities can stipulate arbitration; this right could not be excluded by means of a statute.16 As to BITs, Justice Dienes-Oehm established that with the conclusion of these treaties, Hungary made the choice of arbitration as a future dispute-settlement mechanism possible; this could not be excluded with an internal legal act.17 Although Article 25(4) of the 1965 Washington Convention does authorize contracting states to exclude certain classes of disputes from the jurisdiction of the ICSID, Hungary made no such reservation in respect of legal disputes connected to national property. In sum, Justice Dienes-Oehm and Justice Péter Paczolay held that the new provisions violate the 1961 Geneva Convention, several docents of BITs, the 1965 Washington Convention and the 1958 New York Convention.18

38.6

Assessment

When reading the CC’s judgment, it is not difficult to obtain a critical acumen. First, the CC misapplied the rules of Hungarian constitutional law and applied the concept of ‘constitutional requirements’ in a case this could not have been applied. Second, it seems

14 15 16 17 18

Para. 95. Para. 99. Para. 100. Para. 106. Para. 114.

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that the CC’s judgment failed to construct the applicable international treaties properly and blatantly misinterpreted them. The use of ‘constitutional requirements’, to the extent the CC used them, clearly appears to be flawed, since the new provisions visibly fall foul of arbitration treaty law. As noted above, ‘constitutional requirements’ can be used in case a legal norm can be interpreted in more than one way and there is at least one version of interpretation that is constitutional; with this, the provisions’ constitutionality can be secured through interpretation. However, ‘constitutional requirements’ can certainly not be used as a tool to re-write the law and to vision something into the law that is clearly not part of it. The CC appears to have been exceedingly ‘creative’ as to the interpretation of the new provisions; this culminated in the extrapolation of Section 17(1) of the Action on National Property, excluding all retrospective effects, to new Section 4 of the Act on Arbitration. While Section 17(1) of the Act on National Property does indeed provide that the provisions of this Act do not concern the rights acquired lawfully and in good faith before the Act’s entry into force, the act extending the ambit of non-arbitrability (Act LXV of Act 2012) expressly and crystal-clearly provided that the extension does apply to existing arbitration agreements; the statutory language makes it clear that the rule that legal disputes concerning national property are not arbitrable does apply to covenants lawfully and validly concluded before this rule’s entry into force. The CC, arbitrarily and capriciously, ignored this rule on temporal scope and extrapolated Section 17(1) of the Act on National Property to Section 4 of the Arbitration Act. Of course, the CC could have certainly established that the conformity of new Section 4 can be secured only if its temporal scope is shaped in the way Section 17(1) of the Act on National Property does; however, the temporal scope of Section 4 was blatantly not shaped in this way. Through extrapolating Section 17(1) to Section 4, the CC, in fact, quashed the rule on the temporal scope of Section 4. Accordingly, the use of ‘constitutional requirements’ was exaggerated, since (as Justice Dienes-Oehm puts it) the violation of the Fundamental law occurred already at the time the new provisions entered into force and the rules of new Section 4 on temporal scope cannot be reconciled with the constitutional law. Nonetheless, even if disregarding the above and assuming that the CC, albeit that in a conceptually erroneous manner, succeeded in obviating the frustration of legitimate expectations, it cannot be disregarded that it completely failed to address the violations emerging from the pro futuro application of the new provisions. As Justice Dienes-Oehm held, the CC had, in fact, two options: it could quash the new provisions or, if it found this appropriate, it could call the legislative to lift the tension between the new provisions and arbitration treaty law (through amending (repealing) the new provisions or denouncing the relevant treaties). None of these were adopted. Although the CC’s judgment’s reasoning contends that Hungary has to decide whether to amend (or quash) the new provisions or to submit reservations or to denounce the treaty concerned, this does not appear in the

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judgment’s operative part. The CC failed to call the legislative to take the necessary measures; likewise, albeit that in such cases this has to be done, it failed to set a deadline for the adoption of these measures. As far as the CC’s substantive analysis is concerned, it seems that it either blatantly misinterpreted the relevant rules of arbitration treaty law or it treated rules that blatantly violated the norms of public international law very mildly. Probably, the gravest flaw was that it treated unilaterally terminable obligations as non-existing. Although Article 25(4) of the 1965 Washington Convention does permit contracting states to exclude a class or classes of disputes from the jurisdiction of the ICSID and they can make such a reservation ‘at any time’, Hungary has made no such reservation; thus, its obligations emerging from the Convention are unrestricted. It appears to be easily understandable that the possibility to restrict one’s involvement in a convention does not imply that one’s involvement is restricted. This error is a fortiori present as to the 1961 Geneva Convention, since here the reservation is time-barred; according to Article II(2), it could have been made only ‘[o]n signing, ratifying or acceding to this Convention’. It appears to be even more easily understandable that the possibility to denounce a convention does not imply that one would not be bound by it. The efforts of the CC to intimate that the right of public entities is likely deducible from Article II of the 1961 Geneva Convention but this construction is not unequivocal make the judgment even more frivolous, taking into account, among others, that this is the title of Article II: the ‘Right of Legal Persons of Public Law to Resort to Arbitration’. All the above remarks explaining that the tension between the new provisions and treaty law could be lifted through making a reservation or denouncing the convention clearly suggest that there is such a tension, which has to be lifted. On the contrary, the CC failed to call the legislative to eliminate these contradictions within a certain deadline. How many debtors would applaud a judgment providing that there no need to enjoin the debtor to pay, since the debtor could easily eliminate his monetary obligation through paying? Whether this would be a reasonable judgment; well, the CC’s judgment would suggest: it would.

38.7

Epilogue

It is to be noted that the new provisions raise various concerns also outwith the domain of constitutional law. Although it is a question of feasibility and not of constitutionality, it is noteworthy that the new provisions raise a number of practical problems of enforcement. Although Hungary unquestionably does have the power to enforce the anti-arbitration provisions on its territory, there is, put it mildly, no guaranty that the arbitral awards concerning national

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property will not be enforced abroad. Namely, arbitrabilit is governed by the lex fori. According to Article V(2) of the 1958 New York Convention: [r]ecognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: (a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country. Accordingly, since contracts concerning national property are normally arbitrable, Hungary, with this idiosyncratic rule, erected, on the territory of Hungary, a protecting wall against arbitration but could not immunize its assets outside Hungary from enforcement. Taking into account that currently 150 states are party to the 1958 New York Convention,19 this facet appears to be rather relevant. Furthermore, the new provisions have various other aspects that raise legal concerns. By way of example, Section 17(3) makes the choice of Hungarian language, Hungarian law and, for the case of a legal dispute, the jurisdiction of Hungarian courts mandatory in civil law contracts concerning national property located on the territory of Hungary. This appears be excessively ambitious, since under Article 3 of the Rome I Regulation20 the parties may choose the law of any country (they can even choose the law of a non-EU country) and, likewise, under Article 23 of the Brussels I Regulation21 they have the right to agree to the jurisdiction of the court of any Member State (this rule is preserved in Article 25 of the Brussels I Recast Regulation22)23; this liberty is also embedded in Article 5 of the 2005 Choice of Court Convention.24

19 www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html. 20 Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), OJ L 177, 4 July 2008, pp. 6-16. 21 Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. OJ L 12, 16 January 2001, pp. 1-23. 22 Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 351, 20 December 2012, pp. 1-32. 23 The Brussels I Recast Regulation is applicable as from 10 January 2015. 24 Convention of 30 June 2005 on Choice of Court Agreements, concluded on 30 June 2005.

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Part VI Review of Hungarian and International Scholarly Literature

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About the Monograph on the Incorporation of Norms of International Origin into the Hungarian Legal System

Sándor Szemesi* (Tamás Molnár, A nemzetközi jogi eredetű normák beépülése a magyar jogrendszerbe, Dialóg Campus Kiadó – Dóm Kiadó, Budapest-Pécs, 2013, p 303; ISBN 978 963 9950 894) The profound assessment of the relationship between international law and domestic law is not considered to be a recent phenomenon; neither in the international, nor in the Hungarian legal literature,1 even despite the fact that in the jurisprudence, for a lengthy period of time, the doctrine of unity with respect to international law and domestic law has prevailed over the concept of differences. Nowadays, such unity has undoubtedly become the feature of the past and basically merely those jurists do not distinguish between international law and domestic law who simply deny the existence, or at least the legally binding nature of international law. This trend has become known as international legal nihilism. If we acknowledge the existence and the legal nature of international law, we can still choose between two basic schools of thoughts. Namely, there exists the concept of monism which propagates the unity of law and the primacy of international law; while the concept of dualism, and its subcategories, holds that domestic law and international law are recognised as two different and separate legal orders. These theories have relevance not particularly from the perspective of international law, but rather from the side of domestic law as pursuant to the notion of monism, which stands on the basis of the unity of legal systems, international legal norms become part of domestic law without the application of any further legal acts. Whereas, in dualist systems the rules of international law could only predominate in domestic law if the state transforms them into its own legal *

1

Associate Professor, University of Debrecen, Faculty of Law. E-mail: [email protected]. This research was supported by the European Union and the State of Hungary, co-financed by the European Social Fund in the framework of TÁMOP-4.2.4.A/ 2-11/1-2012-0001 ‘National Excellence Program’. The last time when a monograph was published on the topic prior to Tamás Molnár’s recent book was in 1987 when László Bodnár, international law professor form Szeged, published his work. L. Bodnár, A nemzetközi szerződések és az állam, Közgazdasági és Jogi Könyvkiadó, Budapest 1987.

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system by an additional legislative act. We can discover examples all over the world for the practical application of monism and dualism as well; moreover the domestic legal systems are entitled to choose between the two types of legal theories and legal methods accompanying them. The present-day Hungarian legal system, pursuant to Paragraph 3 of Article Q) of the Fundamental Law of Hungary, definitely follows the dualist approach, as ‘Hungary shall accept the generally recognized rules of international law. Other sources of international law shall be incorporated into Hungarian law upon their promulgation by laws.’ Tamás Molnár emphasises that Paragraph 1 of Article 7 of the previous Hungarian Constitution did not take a univocal commitment on the side of monism or dualism2 as it stated that ‘the legal system of the Republic of Hungary accepts the generally recognized principles of international law, and shall harmonize the country’s domestic law with the obligations assumed under international law.’ It is undeniable that regarding the terrain of theory Tamás Molnár is absolutely right, however if we assess the latter provision in the light of the fundamental decisions of the Constitutional Court, particularly Decision No. 4/1997 (I.22),3 as Tamás Molnár also evaluates it himself,4 the Hungarian legal system could be described as a purely dualist system, thus the relevant provisions of the Fundamental Law cannot be considered as bringing substantial change in this respect and the recent regulation merely expresses clarifications regarding the relationship between international law and Hungarian law. Nevertheless, Article Q) of the Fundamental Law of Hungary resolves and establishes problems at the same time. While the mentioned provision obviously declares the application of the dualist transformation model at the theoretical level, it also raises new questions by the determination according to which ‘other sources of international law’, including basically all forms of written international law such as the resolutions of international organisations, autonomous unilateral legal acts and the judgments of international courts, ‘shall be incorporated into Hungarian law upon their promulgation by laws’ due to rare practical realisation with respect to the domestic legal practice. The book of Tamás Molnár does not stop at this point, however the title of the book might suggest it at first read. In the light of Act L of 2005 on the proceedings in relation to international treaties, which was amended in 2011 (the ‘International Treaty Act’), the book also assesses in-depth how international law could possibly be transformed into the Hungarian legal system. The material scope of the Act is extended to all procedural aspects

2 3

4

T. Molnár, A nemzetközi jogi eredetű normák beépülése a magyar jogrendszerbe, Dialóg-Campus – Dóm, Budapest-Pécs 2013, p. 65. The referential basis of the decision is Paras. 40 and 41 of the Constitutional Court Decision No. 22/2012 (V. 11), (21 June 2012), ABH 2012, p. 97; in addition to Paras. 27-34 of Constitutional Court Decision No. 13/2013 (VI. 17), ABH 2013 issue 13 (24 June 2013) p. 623 confirming the previous decision. Molnár, 2013, pp. 74, 76-77.

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that lead to the conclusion of international treaties, taking into account the preparatory works, which is a mere piece of legislation in domestic law, and the acceptance of binding force. We may think that the daily application of the International Treaty Act does not raise particular questions; nevertheless Tamás Molnár can dispute this standpoint, inter alia, by analysing the word of ‘promulgation’. The act or governmental decree authorising and acknowledging the binding force of the international treaty is not deemed as promulgation in every cases at the same time as it could be possible that the given international treaty does not become binding on Hungary, for instance because the entering into force of the treaty on the international plane has fallen behind.5 In his recently published work, Professor László Blutman finds the usage of the term of promulgation as a terminus technicus worrisome as according to his point of view, the ‘promulgation act’ is rather deemed to be an ‘incorporation act’, in other words, the legislator basically incorporates the international treaty into the domestic legal system and provides its completeness by incorporating the international treaty into an act and the promulgation is purely a requisite regarding the validity of the act concerned.6 In the concrete situation we can effectively contemplate with merging the meaning of promulgation under international law and under domestic law, thus with respect to international law we are faced with an evidently inaccurate term. As Tamás Molnár also mentions, pursuant to the Fundamental Law, other sources of international law, including basically all forms of written international law such as the resolutions of international organisations, autonomous unilateral legal acts and judgments of international courts are incorporated into Hungarian law upon their promulgation by laws.7 According to the standpoint of Tamás Molnár, the promulgation obligation is only applied to those decisions of the courts which resolve inter-state disputes, since pursuant to Article 13 of the International Treaty Act, ‘in case of disputes emerged between Hungary and other legal entities of international law’ promulgation is required. However, certainly the most important human rights forums, such as the European Court of Human Rights, do not fall under the category of disputes concerning inter-state relations.8 I believe, regardless of the fact that the reality seems to confirm the previous approach, that the concept is slightly problematic for several reasons. On the one hand, Article 2 lit. (a) of the International Treaty Act is about ‘other legal entities having the competence to conclude international treaties’, while Article 13 regulates issues relating to legal disputes raised between ‘Hungary and other entities of international law’. In course of the evaluation, it is not hard to discover that the latter provision does not require the ability to conclude a treaty, which wording would evidently exclude natural persons from the conclusion of 5 6 7 8

Molnár, 2013, p. 127. L. Blutman, ‘A nemzetközi szerződések törvénybe iktatása: homokszemek a gépezetben’, 1(8) Közjogi Szemle (2010), pp. 7-14. Molnár, 2013, pp. 78-79. Molnár, 2013, p. 184.

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international treaties. On the other hand, according to Article 416(1) lit. (g) of Act XIX of 1998 on criminal law procedures, it is considered to be a cause for judicial review if an international judicial forum on human rights, which was established by an international treaty, determines that either the conducted procedure, or the final judgement of the domestic court have infringed any provision of the promulgated international treaty. In the light of the above, it is more than troublesome if the possibility could be raised in front of a domestic court that the case-law of the European Court of Human Rights is not binding on domestic courts. Nevertheless, if we commence from the concept set out in paragraph 3 of Article Q) of the Fundamental Law, particularly from its explanatory memorandum, and we accept that judgments of the Strasbourg Court with respect to Hungary appear on the governmental web portal on a case-by-case basis, but they are not officially published in any ways, we can easily come to the conclusion that domestic courts do not consider the case-law of the European Court of Human Rights binding on themselves. Besides the fact that the excellent monograph of Tamás Molnár fulfils a space in the Hungarian international law literature, his work could be bravely regarded as such a successful experiment that intends to prove from different perspectives that assessing international legal queries could be important, useful and instructive also for experts dealing with domestic law and not just for international lawyers.

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Handbook on European Private Law

Tamas Dezso Ziegler* (Mauro Bussani & Franz Werro (Eds.), European Private Law, A Handbook. Stämpfli Publishers, Berne, 2009, p. 586; ISBN 978 3 7272 8870 8) Scholars, who seek to write about comparative private law are in a quite challenging situation nowadays. Numerous scientific groups have emerged1 in Europe which deal with the comparative analysis of the law, especially in the field of contract and consumer law. In the recent years new works started to establish the European Law Institute in order to give advice for EU institutions on the field.2 The Study Group on a European Civil Code published numerous deep and informative books on certain parts of private law, and its academic Draft Common Frame of Reference3 is also an excellent work. The Acquis Group published numerous books, and its consumer law compendium is one of the best in its field in analyzing the domestic environment of consumer law and consumer contract law.4 Moreover, we find general introductory books of private law and business law state-bystate – most of these were created by practical lawyers. Furthermore, some materials connected to EU law can also be of use.5 Thus, in this regard we disagree with the authors of the reviewed book, who state that ‘with few exceptions […] there is little literature available for any lawyer, scholar of student interested in understanding a law in Europe different from her/his own.’6 However, we absolutely agree that the emphasis nowadays was put on the analysis of the domestic provisions and not on the analysis of the background, the broader perspective and the thinking of legal systems. The book tries to cure these problems by with analysing certain questions in their complex relationship with other areas of law *

1

2 3

4 5 6

Research fellow, Hungarian Academy of Sciences – Institute for Legal Studies. E-mail: ziegler.dezso.tamas @tk.mta.hu. The Author of present review would like to thank Ilonka Engelhardt for her observations on the paper. For a comprehensive summary see W. Wurmnest, ‘Common Core, Grundregeln, Kodifikationsentwürfe, Acquis-Grundsätze – Ansätze internationaler Wissenschaftlergruppen zur Privatrechtsvereinheitlichung in Europa’, 11 Zeitschrift für Europäisches Privatrecht (2003), pp. 714-744. R. Zimmermann, ‘Challenges for the European Law Institute’, 16 Edinburgh Law Review (2012), pp. 5-23. Cf. www.europeanlawinstitute.eu/about-eli/ (1 October 2012). Study Group on a European Civil Code & Research Group on EC Private Law (Acquis Group) (Eds.), Draft Common Frame of Reference (DCFR), Full Edition Principles, Definitions and Model Rules of European Private Law, Sellier 2009. H. Schulte-Nölke et al. (Eds.), EC Consumer Law Compendium: The Consumer Acquis and Its Transposition in the Member States, 2008. A.S. Hartkamp (Ed.), Towards a European Civil Code, 4th revised and expanded edn, 2010. See p. 3 of the reviewed book.

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and other countries similar rules. Its editors, Professors Mauro Bussani from the University of Trieste and Franz Werro from the Universities of Fribourg and Georgetown Law are great experts in their fields. The contributors of the book are professors from different countries including Germany, Finland, Hungary, Italy, the Netherlands, Switzerland and the UK. Talking about its structural design, the approach taken by the volume is somewhat surprising. Most of the topics, like property law, obligations, contracts, etc. are divided into ‘Eastern’ and ‘Western’ law sections. As a Hungarian scholar, I found this method surprising, knowing that there may be huge differences among the legal systems between different countries in Eastern Europe. For instance Hungary has taken over several methods and institutions from the German BGB, while other countries like Romania historically were more influenced by the French Code Civil. On the other hand, as the editors of the book expresses, it was intended to be a work which opened up new areas and raised more questions than it provided answers. In this light, the method is interesting, and even if it is uncommon, we enjoyed reading about the different legal systems a lot. Talking about the content: after the foreword, the second, introductory chapter of the book written by Samantha Besson called ‘Fundamental Rights and European Private Law’ explains the connection between legal sources on fundamental rights and private law rules including the direct effect of fundamental rights, the practice of the European Court of Human Rights,7 and certain domestic approaches. The third, ‘Western Property Law’ chapter by Antonio Gambaro serves as an excellent starting point to understand the different legal traditions: it explains the background of the relevant (hardly existing) EU rules, the common law traditions, the civil law method, and the French property law. The fourth chapter by Rodolfo Sacco named ‘A Comparative Analysis: The Contractual Transfer of Ownership of Movable Property’ deals with one of the core problems of property law. It discusses the transfer of ownership in depth – the major historical models, the intent to transfer and deliver, abstraction and casuality, the transfer and attributions of the ownership, the ownership of an object sold but not delivered. The fifth chapter on ‘Western Law of Obligations’ by Geoffrey Samuel could serve for everyone as an introduction into the Western-European law of obligations included subdivisions of civil law as torts, contracts, quasi-delicts and quasi-contracts. Moreover, it contains an overview of common law tradition as well. Carla Sieburgh from the Radboud University Nijmegen wrote in our opinion one of the most important chapters – the chapter ‘Western Law of Contract’. Since the topic would be extremely broad to discuss, she analysed the public order of the EU and contract

7

For an interesting book about the same topic in the Hungarian literature see F. Gárdos-Orosz, ‘Alkotmányos polgári jog?’ Constitutional Civil Law?, Dialóg Campus (2011).

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law, freedom of contract, the reliance principle, the pacta sunt servanda rule, and very shortly some other issues like good faith, social conformity, etc.8 The Eastern contract law chapter (‘Eastern Contract Law’ or Transformation of Contract Law and Civil Justice in New EU Member Countries: The Example of the Baltic States, Hungary, Poland’) discusses the issue of transition of contract law to market economy in the Eastern region. In this chapter, we strongly disagree with the author, Norbert Reich, who states that because in Eastern-European countries there was no freedom of establishment of companies, ‘contract law system existed,… but played a limited role in legal practice’. Moreover, it is claimed that contract law was a ‘rather elaborate, but to some extent irrelevant’ field.9 After making these statements, the author writes about an article of the Russian Civil Code – a clear mistake to cite connection with Hungary as well as other neighboring countries. It is a common mistake of Western-European scholars that they think of the earlier socialist economics as systems in which the state controlled everything and there was no market at all. It is like declaring contract law has a limited role in China – an obviously false statement. In Hungary for example, during the so called ‘Goulash communism’ a mixture of communism and market economy existed from the seventies. Thus, technically speaking, people were allowed to create their own businesses like ‘Business Partnerships’ (‘Gazdasági Munkaközösség’) and were allowed to sell the goods they produced. Later several other forms of co-operations and companies appeared. Moreover, beside business activities, contract law had an importance in sales of private properties like houses, flats and other real estates like land as well. Furthermore, state organizations were present on the market as well. After a while, Hungary adopted its own rules on competition law and had a competition law policy, even in communistic times, as it was necessary to create one. After several other relevant rules, in 1984 a modern competition law was adopted, which prohibited unfair commercial practices, cartels and abuse of dominance. Consequently, to think of these countries as ‘completely state owned markets’ or like countries where a ‘black hole’ or a kind of ‘vacuum of the market’ existed is a huge mistake, which is commonly made by western European scholars who want to see communistic markets in black and white. You cannot compare a Russian system to an East-European system either – the thinking and mentality behind the systems – apart of some countries – were completely different. Contract law played a central role in communistic times in countries such as Hungary. The Civil Code was adopted in 1959, and even though it was amended several times, its basic system and ways of thinking was the same before and after the change of the system.

8

9

Cf. R. Zimmermann and S. Whittaker (Eds.), Good Faith in European Contract Law, 2000; C.D. Miller, ‘Good Faith in Scots Property Law’, in A.D.M. Forte (Ed.), Good Faith in Contract and Property in Scots Law, 1999, pp. 103-127. See p. 210 of the reviewed book.

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After discussing Eastern contract law, the next, eighth chapter on ‘European Consumer Law’ explains the rules of EU consumer law – one of the most popular fields of EU law. The next two chapters – ‘Western Tort Law – A Jurisprudence of Injury’ by Gert Brüggermeier and ‘Eastern Tort Law’ by Attila Menyhárt serve as excellent complementaries of each other. The former chapter focuses on stock taking problems, negligence liability, the liability of principals and agents and damages (incl. personal interests) and non economic loss. The latter discusses the basis of liability, the special forms of liability, and the problems of certain sort of damages. As an additional chapter, ‘The Law of Restitution: a Perspective from Western Europe’ chapter summarizes the differences in Eastern and Western European interpretations of liability. The last four chapters all discuss different, special areas of law. The twelfth chapter is about the Proprietary Security Rights in the Western European Countries, the thirteenth on was written on ‘security Rights in Central and Eastern Europe’. The fourteenth chapter on ‘Family Law’ by Esin Örücü discusses analyses questions like the meaning of marriage, the legal requirements of a valid marriage, legal consequences of a marriage, and some questions of marital property. As the EU did not adopt rules on substantive family law yet, but has some private international law regulations, comparative law has an increasing role in these fields.10 The Law of Succession part by Antoni Vaquer summarises some general problems of successions like freedom to testation, the strengthening of the spouse’s position and the effect of divorce. In conclusion, we can recommend the book for those scholars who want to deal with a part of private law and beside other works analysing the legal systems from provisions to provisions want to gain a broader scope to these areas. Moreover, the book contains lists on literature after every chapter, which may be of use.

10 M. Harding, ‘The Harmonisation of Private International Law in Europe: Taking the Character Out of Family Law?’, 7 Journal of Private International Law (2011), pp. 203-229. Cf. with the activity of the Commission on European Family Law, http://ceflonline.net/.

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The Legal Status of the Arctic in International Law

János György Drienyovszki* (Erzsébet Csatlós, Az Arktisz nemzetközi jogi helyzete. Akadémiai Kiadó 2013, Budapest, p. 237; ISBN 978 963 05 9354 0) The Arctic has always been a region of peculiar characteristics. In the past it aroused major interest because of the challenges it posed to navigation and due to the resources it may conceal. Whilst states’ interest in natural resources does not slack due to the advancement in technology and the ever-increasing effects of global warming, new environmental challenges have arisen which require increasing attention. The unique natural features of this region have always provided legal challenges in international law. Today, the drastic changes in the Arctic give rise to questions and uncertainties surrounding the existing rules and norms which govern the law of the sea, state-sovereignty and environmental protection. Csatlós’ monograph is a significant contribution to Hungarian legal literature. It provides an analytical and comprehensive overview of the different legal challenges which currently concern the Arctic. Probable future challenges are also touched upon as nowadays the concept of sustainable development and environmental protection are becoming ever so relevant. This approach is further supported by the fact that the environmental challenges of the Arctic are simultaneously of an intra-regional and inter-regional nature, hence they not only affect the region concerned, but also have negative impacts on the Earth’s climate, on sea currents as well as on wind and precipitation systems all around the world. The existing literature focuses primarily on specific issue-areas regarding the Arctic, while the monograph at hand aims at incorporating the relevant primary and secondary international and national sources in order to create a truly thorough analysis of the legal questions concerning the region. The monograph is mainly devoted to clarifying the legal status of the Arctic by examining whether the same legal rules apply to the domain of the Arctic as to any other territory of the Earth, or, whether due to its particular and unique features it requires special rules or even the application of new legal categories. After introducing the unique features of the region Csatlós clarifies the classic legal titles of coastal states to the mainland. Then

*

LL.M. graduate in Public International Law, Leiden University. E-mail: [email protected].

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János György Drienyovszki

she proceeds by examining whether the ice (terra glacia) present in the region – to which states attempted to apply titles analogous to terra firma – can be considered a special legal category under international law, or if the condition of its fully or partially frozen surface does not influence the legal status of the Arctic Ocean at all. Based on the outcome of the analysis and on the characteristics of ice the author determines the applicable law. Sector theory is also closely scrutinized with the conclusion that neither the theory of Poirier nor its soviet mutation may be regarded as a legal title for territorial acquisition under contemporary international law. The analysis then turns towards the most disputed issue in the Arctic, namely the legal status of the Northwest and Northeast Passages which are becoming ever so important – and not only to the states represented in the region. The analysis is based on the legal titles of the affected coastal states over water covered areas and it leads to the conclusion that currently neither Passage qualifies as straits used for international navigation. Therefore their respective legal status depends on which legally different maritime areas the sections of the routes touch during their course: internal waters or territorial sea. This is an especially problematic issue with respect to Canada since several states contest its historical title over the territory of the Northwest Passage and are also divided regarding the legality of the title based on the delimitation by straight baselines. In consequence the unstable basis of the titles yields heated debates concerning navigation through the Northwest Passage. Notwithstanding these debates, Csatlós points out that Canada lawfully applies the delimitation by straight baselines. In the next chapter the focus of the analysis shifts towards the issues concerning sovereignty over the continental shelf, and discusses the difficulties arising from the conflicting claims of the Arctic states in light of the recommendations and procedure of the CLCS.1 Subsequently, the existing forms of bilateral, regional and international cooperation are examined including the AEPS,2 the Arctic Council, as well as initiatives inspired by the United Nations and the European Union. In the penultimate chapter the author addresses the key role of environmental protection in the Arctic and provides an overview of its environmental regime which – due to the lack of an international treaty devoted to the Arctic and to the inefficiency of general international law regulations – consists of unilateral actions and international treaties that are applicable either because Arctic states are parties to it, or because they possess territorial jurisdiction in the Arctic. In light of these circumstances the author examines whether the regulatory principles regarding the Antarctic – demilitarization, regulating exploitation of resources – could be applied to the Arctic, including the possibility of classifying the region as part of the Common Heritage of Mankind. In the final chapter Csatlós discusses regulatory options and the possibilities inherent in an Arctic-specific treaty capable of facing challenges arising in the region. Based on the

1 2

Commission on the Limits of the Continental Shelf. Arctic Environmental Protection Strategy.

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The Legal Status of the Arctic in International Law

undertaking described above, Csatlós defines the possible future legal status of the region, albeit from a pragmatic point of view. Referring to the monographs’ main proposition the author concludes that the Arctic possesses a special legal status under international law due to its unique and fragile ecosystem, and in no way due to the legal title for acquiring territory under sector theory as it had been held in the past. These ecological characteristics justify supplementing the deficiencies of international rules currently in force through the adoption of an Arcticspecific international treaty, which, based on the region special needs and its binding character, would place the regions’ aquatic domain under a self-contained regime. The author arrives at the conclusion that apart from the disputes concerning the two Passages and the continental shelves, the legal status of the Arctic is elucidated in compliance with the rules of international law currently in force. Csatlós’ work is not only recommended for legal scholars but also for scholars of any other discipline interested in the subject matter, due to its comprehensibility and logical structure. The easy grasping of the concepts and theories is further facilitated through images, maps and charts. Furthermore, the monograph could also serve as a useful supplement for students of international law who wish to acquire a deeper understanding of the law of the sea and environmental law as it provides real life examples for the application – and challenges – of the United Nations Convention on the Law of the Sea and other relevant international documents. Csatlós provides an informative and useful contribution to the scholarly literature on the Arctic and given the scarcity of publications in this field, an English translation of her work would be highly welcome.

651

Index Petra Bárd European Arrest Warrant mutual recognition mutual trust surrender extradition

469

László Blutman customary international law collective beliefs chronological paradox epistemic deficit summative approach

157

Szigeti Borbála sponsor minimum age language test proportionality

369

László Burián jurisdiction state immunity liability for damages caused by armed conflicts violation of international ius cogens

191

Lóránt Csink & Annamária Mayer regulation (self-regulation, co-regulation) legislation legal system

403

Mónika Ganczer right to a nationality statelessness

15

653

Hungarian Yearbook of International Law and European Law 2014

dual nationality human rights deprivation of nationality arbitrary national asset arbitration investment dispute Fundamental Law International Centre for Settlement of Investment Disputes (ICSID)

619

Laura Gyeney dual citizenship acquisition and loss of citizenship equal treatment national identity free movement

93

Barnabás Hajas Basic Law of Hungary freedom of assembly comparative law constitutional law human rights

559

Gábor Kardos minority autonomy minority rights political culture human security fear

35

Gábor Kártyás employment in civil service freedom of expression loyalty of civil servants access to tribunal union rights of civil servants

131

654

Index

András Koltay censorship media regulation freedom of speech prior restraints article 10

421

Ágoston Korom & Laura Gyeney Beneš decrees collective guilt compensation free movement of capital derogation

289

András György Kovács relationship between the CJEU and the national courts post-accession compliance experience preliminary ruling procedures jurisprudence-analysing working group of the Curia of Hungary EU-conform interpretation of national provisions of law

525

Péter Kovács Council of Europe double citizenship dual nationality jus sanguinis jus soli non-discrimination military service sovereignty international law

3

Gábor Kurunczi representation of minorities preferential mandate minority electoral register national minority list spokesman

507

655

Hungarian Yearbook of International Law and European Law 2014

Petra Lea Láncos ‘one man, one vote’ multiple citizenship voting principles federal systems historical compensation

107

Tamás Lattmann pilot-judgment procedure admissibility excessive length of proceedings significant disadvantage safeguard clause

223

Ágnes Lux children children’s rights ombudsman child-friendly justice UN CRC

573

Gábor Molnár national/European/international arrest warrant extradition period of limitation tax fraud incomplete rule

549

Tamás Molnár nationality arbitrary deprivation statelessness relationship international law and EU law Rottmann case

67

Levente Nyakas TVWF (Television Without Frontiers) Directive AVMS (Audiovisual Media Services) Directive

447

656

Index

media services quota rules cultural objectives András Osztovits appeal against a request for a preliminary ruling parties’ procedural rights subject of the reference for a preliminary ruling interpretation of national law appropriate and necessary referral

535

Katalin Raffai private international law conflict of laws connecting factors (nationality, habitual residence) personal law principles of EU law

327

Anikó Raisz genetically modified organism GMO Hungarian Constitution aggression international environmental law

275

Dinah Shelton Universal Declaration on Human Rights UN Human Rights Council American Declaration on Rights and Duties of Man environmental protection right to a healthy environment

141

Gábor Sulyok interpretation responsibility to protect United Nations World Summit Outcome

207

657

Hungarian Yearbook of International Law and European Law 2014

Mart Susi direct individual measures European Court of Human Rights legislative interference into judicial independence Hungarian constitutional reform separation of powers

121

Sarolta Szabó private international law EU law fundamental rights Charter of Fundamental Rights of the European Union international child abduction

307

Zsuzsa Szakály human rights protection United Nations Council of Europe European Union NGO-s eternity clause

259

Sándor Szemesi pending applications European Court of Human Rights repetitive cases Committee of Ministers structural human rights problem

243

Judit Tóth nationality law genuine link Hungarian citizenship preferences in naturalization

45

Ágnes Töttős legal migration EU Blue Card harmonization

343

658

Index

family reunification migrant Tamás Wetzel & Kinga Debisso assimilation kin-state titular state expansion of voting rights Fundamental Law

57

Márton Leó Zaccaria Curia of Hungary discrimination equal treatment labour law work of equal value

587

Tamas Dezső Ziegler consumer law EU private law private international law contract law state introduction

377, 645

659