The Governance of EU Fundamental Rights 110707049X, 9781107070493

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THE GOVERNANCE OF EU FUNDAMENTAL RIGHTS

In spite of a continued increase in the substantive scope and reach of EU fundamental rights, little attention has been paid to their practical enforcement. In this book, Mark Dawson looks at the mechanisms through which EU fundamental rights are protected and enforced, closely examining the interrelation between the EU’s pertinent legal and political bodies. He argues that in order to understand EU fundamental rights we must also understand the institutional, political and normative constraints that shape the Union’s policies. The book examines the performance of different EU institutions in relation to rights, and studies two important policy fields – social rights and rule of law protection – in depth. mark dawson has been Professor of European Law and Governance at the Hertie School of Governance in Berlin since 2012. He received his PhD from the European University Institute in Florence in 2009 and has been a visiting scholar at the London School of Economics and the Harvard Kennedy School. His recent publications include New Governance and the Transformation of European Law and Beyond the Crisis with H. Enderlein and C. Joerges. He has written peer-reviewed articles for both law and political science journals, including the European Law Journal, Common Market Law Review, European Law Review and Journal of Common Market Studies.

cambridge studies in european law and policy This series aims to produce original works which contain a critical analysis of the state of the law in particular areas of European law and set out different perspectives and suggestions for its future development. It also aims to encourage a range of work on law, legal institutions and legal phenomena in Europe, including ‘law in context’ approaches. The titles in the series will be of interest to academics; policy makers; policy formers who are interested in European legal, commercial and political affairs; practising lawyers, including the judiciary; and advanced law students and researchers. Joint Editors Professor Dr Laurence Gormley, University of Groningen Professor Jo Shaw, University of Edinburgh Editorial Advisory Board Professor Kenneth Armstrong, University of Cambridge Professor Catherine Barnard, University of Cambridge Professor Richard Bellamy, University College London Professor Marise Cremona, European University Institute, Florence Professor Michael Dougan, University of Liverpool Professor Dr Jacqueline Dutheil de la Rochère, Université de Paris II Director of the Centre de Droit Européen, Paris Professor Daniel Halberstam, University of Michigan Professor Dora Kostakopoulou, University of Warwick Professor Dr Ingolf Pernice, Director of the Walter Hallstein Institut, Humboldt University Judge Sinisa Rodin, Court of Justice of the European Union Professor Eleanor Spaventa, Durham University Professor Neil Walker, University of Edinburgh Professor Stephen Weatherill, University of Oxford

Books in the Series The Governance of EU Fundamental Rights Mark Dawson The International Responsibility of the European Union: From Competence to Normative Control Andrés Delgado Casteleiro Frontex and Non-Refoulement: The International Responsibility of the EU Roberta Mungianu Gendering European Working Time Regimes: The Working Time Directive and the Case of Poland Ania Zbyszewska EU Renewable Electricity Law and Policy: From National Targets to a Common Market Tim Maxian Rusche European Constitutionalism Kaarlo Tuori Brokering Europe: Euro-Lawyers and the Making of a Transnational Polity Antoine Vauchez Services Liberalization in the EU and the WTO: Concepts, Standards and Regulatory Approaches Marcus Klamert Referendums and the European Union: A Comparative Enquiry Fernando Mendez, Mario Mendez and Vasiliki Triga The Allocation of Regulatory Competence in the EU Emissions Trading Scheme Jospehine Van Zeben The Eurozone Crisis Kaarlo Tuori and Klaus Tuori International Trade Disputes and EU Liability Anne Thies The Limits of Legal Reasoning and the European Court of Justice Gerard Conway New Governance and the Transformation of European Law: Coordinating EU Social Law and Policy Mark Dawson The Lisbon Treaty: A Legal and Political Analysis Jean-Claude Piris The Ethos of Europe: Values, Law and Justice in the EU Andrew Williams The European Union’s Fight Against Corruption: The Evolving Policy Towards Member States and Candidate Countries Patrycja Szarek-Mason

State and Market in European Union Law: The Public and Private Spheres of the Internal Market before the EU Courts Wolf Sauter and Harm Schepel The European Civil Code: The Way Forward Hugh Collins Ethical Dimensions of the Foreign Policy of the European Union: A Legal Appraisal Urfan Khaliq Implementing EU Pollution Control: Law and Integration Bettina Lange European Broadcasting Law and Policy Jackie Harrison and Lorna Woods The Transformation of Citizenship in the European Union: Electoral Rights and the Restructuring of Political Space Jo Shaw The Constitution for Europe: A Legal Analysis Jean-Claude Piris The European Convention on Human Rights: Achievements, Problems and Prospects Steven Greer Social Rights and Market Freedom in the European Constitution: A Labour Law Perspective Stefano Giubboni EU Enlargement and the Constitutions of Central and Eastern Europe Anneli Albi

THE GOVERNANCE OF EU FUNDAMENTAL RIGHTS MARK DAWSON Hertie School of Governance, Berlin

University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 4843/24, 2nd Floor, Ansari Road, Daryaganj, Delhi – 110002, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107070493 10.1017/9781107707436 © Mark Dawson 2017 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2017 A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data Names: Dawson, Mark, 1983– author. Title: The governance of EU fundamental rights / Mark Dawson. Description: Cambridge [UK] ; New York : Cambridge University Press, 2017. | Series: Cambridge studies in European law and policy | Includes bibliographical references and index. Identifiers: LCCN 2016053733 | ISBN 9781107070493 (hardback) Subjects: LCSH: Civil rights – European Union countries. | Social rights – European Union countries. | Political rights – European Union countries. | Law – European Union countries. | BISAC: LAW / International. Classification: LCC KJE5132 .D39 2017 | DDC 342.2408/5–dc23 LC record available at https://lccn.loc.gov/2016053733 ISBN 978-1-107-07049-3 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party Internet Websites referred to in this publication and does not guarantee that any content on such Websites is, or will remain, accurate or appropriate.

CONTENTS

List of Tables page xi Series Editors’ Preface xiii Acknowledgements xv Introduction

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1 Still an Ever Closer Union in Need of a Fundamental Rights Policy? 1 2 Governance in the European Union 2 3 Governance as a Fundamental Rights Concept 4 4 What Are EU Fundamental Rights for? 7 5 Which Institutions? 9 6 Two Case Studies 11 7 The Book’s Approach 15

1 Critiquing and Theorising the Governance of EU Fundamental Rights 18 1.1 Conceptualising and Justifying EU Fundamental Rights 18 1.2 EU Human Rights Scepticism 21 1.2.1 The Counter-Majoritarian Difficulty 21 1.2.2 The Communitarian Critique – Individualising EU Citizenship 22 1.2.3 The Empirical Critique – What Do EU Rights Add? 25 1.3 A Procedural Approach to Transnational Human Rights Protection? 26 1.3.1 Ely: Democracy and Distrust 27 1.3.2 Habermas: The ‘Internal Relation’ between the Rule of Law and Democracy 29 1.3.3 Proceduralism in European Human Rights Law 31

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co ntents 1.4 Fundamental Rights and Political Disagreement 36 1.4.1 The Normative Value of Disagreement 36 1.4.2 The Collective Enforcement of Fundamental Rights 1.5 Conclusion 44

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2 The Court of Justice in the Governance of EU Fundamental Rights 47 2.1 Introduction 47 2.2 The Margin of Appreciation under the ECHR 49 2.3 Does the Court of Justice Exercise a Margin of Appreciation? The Vertical Dimension 53 2.3.1 The Scope of EU Fundamental Rights 53 2.3.2 Limitations on Charter Rights and the Diversity Variable 58 2.3.3 The Nature of Rights Variable 62 2.3.4 The Procedural Variable 65 2.3.5 Level(s) of Protection 67 2.4 Does the Court of Justice Exercise a Margin of Appreciation? The Horizontal Dimension 71 2.4.1 The Nature of Rights Variable 71 2.4.2 The Procedural Variable 73 2.5 Balancing Different Margins of Appreciation in EU Fundamental Rights 77 2.5.1 Scope: From a Binary Distinction to a ‘Sliding Scale’? 77 2.5.2 The Standard of Review: Towards a Real ‘Process-Oriented’ Approach? 80 2.6 Conclusion 82

3 Fundamental Rights and the Political Institutions

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3.1 Dividing Labour in EU Fundamental Rights 84 3.2 The European Commission 87 3.2.1 Impact Assessment and Establishing a ‘Fundamental Rights Culture’ 89 3.2.2 Fundamental Rights in Decision-Making 95 3.2.3 The Guardian of the Treaties (and the Charter Too?) 95 3.2.4 Post-Legislative Action and Awareness Raising 97 3.3 The European Parliament 100 3.3.1 Politicising EU Fundamental Rights 100 3.3.2 Rights Reporting and the Role of the LIBE Committee 102 3.3.3 Fundamental Rights in the Ordinary Legislative Procedure 104

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c o n te n t s 3.4 The Council 107 3.4.1 Making Council Proposals ‘Fundamental Rights Proof’ 107 3.4.2 Peer Review and the Scope of EU Fundamental Rights 110 3.4.3 Frontex and Agency Governance 111 3.5 Watchdog Institutions 114 3.5.1 The European Ombudsman as a Fundamental Rights Actor 114 3.5.2 The CJEU and the Ombudsman: Working Together to Police Executive Authority? 116 3.5.3 Fundamental Rights in the Political Process 119 3.6 Implementing Institutions 121 3.6.1 Implementing ‘Dynamic’ Rights: The Article 29 Working Party 121 3.6.2 The EU’s Fundamental Rights Agency: The Road Not Taken? 126 3.7 The EU Institutions and the Standard of FR Protection: Tracing Two Legislative Proposals 133 3.7.1 Data Protection and PNR: The Legislative Context 133 3.7.2 Improving the Standard? Legislative Interaction on Fundamental Rights 135 3.8 Conclusion 141

4 Governing Justice and the Rule of Law

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4.1 Justifying EU Rule of Law Oversight 144 4.2 The European Rule of Law in Crisis – Early Warnings 149 4.3 The European Rule of Law in Crisis – Hungary 151 4.3.1 Autonomy 152 4.3.2 Electoral Competition 156 4.3.3 Freedom of Expression and the Media 159 4.4 The European Rule of Law in Crisis – Romania 161 4.5 The Future of EU Intervention on Democracy and the Rule of Law 167 4.5.1 ‘New’ Governance and the Quantification of Democracy and the Rule of Law 167 4.5.2 Command and Control Revisited: The Idea of a ‘Copenhagen Commission’ 170 4.5.3 ‘Reverse Solange’ and the Judicialisation of an EU Rule of Law 173 4.6 The Rule of Law from a Governance Perspective 175 4.6.1 Differentiation 176

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contents 4.6.2 Multilevel Action 176 4.6.3 Governing between Law and Politics 177 4.6.4 Governing Not Government: The Dispersal of Normative Authority 178 4.7 Conclusion – Poland and Beyond 179

5 Governing Fundamental Social Rights

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5.1 What Are EU Social Rights and Why Might We Need Them? 185 5.2 Social Rights in the Age of Austerity 189 5.2.1 Greece 190 5.2.2 Portugal 195 5.2.3 Ireland 198 5.2.4 Common Elements 201 5.3 The Role of the EU Institutions: How Responsible and How Accountable? 203 5.3.1 Allocating Responsibility 203 5.3.2 The European Committee on Social Rights: Evaluating Conditionality’s Social Effects 206 5.4 Four Duties in the Governance of EU Social Rights 212 5.4.1 Assessing Social Impacts 212 5.4.2 Politicising Europe’s Economic and Monetary Union 5.4.3 Dividing Social Rights Responsibilities 217 5.4.4 Empowering the Vulnerable 221 5.5 Conclusion 224

Epilogue: Accession, Asylum and the Politics of Human Rights 226 Index

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TABLES

3.1 Fundamental Rights in the PNR Directive page 137 3.2 Fundamental Rights in the General Data Protection Regulation 138

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SERIES EDITORS’ PREFACE

EU fundamental rights stand at the heart of what the European Union stands for. Yet the relationship between the protection of fundamental rights through the EU Charter and the protection of fundamental rights through the European Convention is still fraught with difficulty, not least because the European Court of Justice torpedoed – unsurprisingly, it must be said – the political approach to accession of the EU to the European Convention, and because of the politicisation of the role of the EU as a fundamental rights actor. In this fraught situation, examination of the question of the governance of EU fundamental rights could not be more timely. Mark Dawson’s second contribution to Cambridge Studies in European Law and Policy takes a close look at the governance architecture for EU fundamental rights. Dawson sees fundamental rights in the EU as a shared constitutional responsibility between, on the one hand, the national and EU legislatures and, on the other hand, the EU judiciary and other fundamental rights bodies. The latter, Dawson points out, may have to address imbalances and exclusions without the political process or act where the constitutional and democratic character of national political orders is fundamentally eroded. This work uses various techniques to analyse the various aspects of EU fundamental rights, ranging from a close doctrinal analysis of the case law of the Court of Justice to process tracing in order to examine the interaction of the EU’s main political institutions to lower or strengthen the level of fundamental rights protection established through two legislative proposals, also looking at external evaluation of the EU Fundamental Rights Agency and Frontex to assess the effectiveness of the principal procedures used by the EU institutions to monitor fundamental rights. The activities of the European Committee on Social Rights and of the Venice Commission are examined in two case studies, using doctrinal and empirical research. The great merit of Dawson’s work is that it takes the normative content of EU fundamental rights seriously while recognizing that such rights must be understood within the context xiii

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of EU politics as objects of political contestation: on the one hand between different legal orders and on the other hand between EU institutions having distinct mandates for advancing and instrumentalising fundamental rights. Dawson’s book sends out challenges; it is enormously readable – the work is gripping, scholarly and compelling in its analysis. It deserves to be read by a wide audience and will challenge many preconceptions. It is indeed a major contribution to the literature on European Union law and fundamental rights, and it is with very great pleasure that we welcome its publication in Cambridge Studies in European Law and Policy. Laurence Gormley Jo Shaw

ACKNOWLEDGEMENTS

Many people have given me help and inspiration on the way to completing this book. I am particularly grateful to Elise Muir, who first encouraged me to think about EU fundamental rights, and with whom I have worked closely for many years. Much of the writing took place during a sabbatical term at the LSE in autumn 2015. I am particularly grateful to Floris de Witte and the Governance and Law in the European Market group for hosting me for a few months and letting me be a part of such a rich and thought-provoking group, including through feedback to a chapter presented there that term. At the Hertie School, I have been lucky to have a number of colleagues, particularly Daniel Augenstein and Dilek Kurban, who have kept me attuned to the wider world of human rights, as well as being wonderful friends. At Cambridge, Sinead Moloney and Elizabeth Spicer have been invaluable in supporting this book from a rough first idea to the finished item. Finally, I would like to thank Pierre, who is my companion in all things. MD

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u Introduction

1 Still an Ever Closer Union in Need of a Fundamental Rights Policy? In 1998, Philip Alston and Joseph Weiler dubbed the EU ‘an ever closer Union in need of a human rights policy’.1 Their plea followed two decades of gradual incrementalism in the development of EU fundamental rights (FR) as well as stinging criticism of EU fundamental rights as being instrumentalised2 and marginalised3 in the EU’s development. The argument that the EU required an FR policy was compelling given the shift of the EU into new areas of policy in the 1990s from Justice and Home Affairs to a greater role on the world stage. Fast-forwarding some 18 years, our picture of EU FR is in need of re-evaluation. FR may be much more totalising today than they were then. Increasingly, the EU’s crises and central policy dilemmas are seen and debated through the parameters of FR. To take the ‘twin crises’ gripping the EU during the completion of this book – the ongoing turmoil in the Eurozone and the Union’s difficulties in re-settling refugees – FR are no longer on the periphery of EU action but central to the political debate over how the EU ought to act and evolve. If once FR – as Alston and Weiler complained – were overly judicialised,4 or the preserve of elite institutions, today they are politicised at the centre of questions over Europe’s very purpose and identity. 1

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P. Alston and J. Weiler, ‘An Ever Closer Union in Need of a Human Rights Policy: The European Union and Human Rights’ in P. Alston (ed.) The EU and Human Rights (Oxford: Oxford University Press, 1999). J. Coppel and A. O’Neil, ‘The European Court of Justice: Taking Rights Seriously?’ (1992) 29 Common Market Law Review 4, 669–692. P. Twomey, ‘The European Union: Three Pillars without a Human Rights Foundation’ in D. O’Keefe and P. Twomey (eds.) Legal Issues of the Maastricht Treaty (London: Chancery Law, 1994), 212–131. See also (on the challenging implications of the first ECHR accession ruling) A. Toth, ‘The EU and Human Rights: The Way Forward’ (1997) 34 Common Market Law Review 3, 491–529. Alston and Weiler, n. 1 above, at 12.

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We also, however, have deep changes in terms of the Union’s institutional architecture – as well as its architecture for FR itself. ‘Politicisation’ of the role of the EU as an FR actor has gone hand in hand with politicisation of the EU’s institutional structure, with the ‘guardian of the Treaties’ – the Commission – increasingly defining itself in more partisan terms. The Union’s institutional and political structure is increasingly fractured, with one major Member State on the verge of abandoning the Union altogether. Within the field of FR itself, while not all of Alston and Weiler’s suggestions were taken up, many were:5 the EU carries a far higher degree of institutional complexity in the FR field with a number of distinct institutions devoted to FR protection, as well as new procedures for the ‘mainstreaming’ of FR within the principal institutions. Finally, EU FR are increasingly fractured, with the traditional conflict between national and EU bodies over the scope and content of FR complemented by the Union’s dual human rights structure: partially centred on the EU Charter and partially on the ECHR. These radical contextual and institutional changes demand a closer look at how – to coin a term of new governance literature – the ‘governance architecture’ for EU fundamental rights now looks. The essential purpose of this book is to meet this demand.

2 Governance in the European Union ‘Governance’ was not a term used by Alston and Weiler to describe the architecture of EU fundamental rights of the 1990s. Why use it now? Governance has been a well-used term in the social sciences, and in the study of the EU, for over 20 years.6 It remains, however, misunderstood, contested and vague.7 Anyone working at a school or department of governance will tell a similar story: an interesting first task for students is to ask them to define ‘governance’ as a term. The response is often a wall of blank looks. At the same time, for such a thorny concept, governance is also an essential one. It refers to a phenomenon that has increased rather than 5

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See e.g. the proposal to upgrade the Vienna Monitoring Centre on Racism and Xenophobia into a fully fledged EU agency, ibid., at 55. See e.g. the influential early collection of Gary Marks, Fritz Scharpf, Philip Schmitter and Wolfgang Streeck, Governance in the European Union (London: SAGE, 1996). See C. Offe, ‘Governance: An Empty Signifier?’ (2009) 16 Constellations 4. For a helpful exercise in clarification, see C. Möllers, ‘European Governance: Meaning and Value of a Concept’ (2006) 43 Common Market Law Review 2.

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decreased in the course of those 20 years, especially in the EU context. This phenomenon could be broadly described as one of dispersal. Dispersal is the basis for the definition of governance that I will use in this book (among the many that already exist8), which is to define governance as the exercise of public power in conditions under which normative authority and steering capacity are dispersed.9 In this sense, governance refers to two different varieties of dispersal. The first variety of dispersion is normative. A long-held observation of positivist theories of law is the need to separate law and morality, given the erosion of societies with a high level of ethical homogeneity.10 In a society where individuals do not share a common sense of ‘the good life’, the anchoring of law in a universal set of ‘natural’ moral principles is precarious. The EU adds a further element into this mix. While national societies are already a mix of pluralistic worldviews, the EU is a conglomerate of different national visions of justice, equality, democracy and other values. EU governance must deal with normative dispersal, i.e. that ‘legitimate authority’ in the EU is contested and arranged through a series of overlapping constitutional orders.11 The recent conflicts between the German Constitutional Court and the CJEU12 are just one element of the difficulties associated with constructing European society along a single chain of hierarchical rule. The second variety of dispersion is capacity based. The rise of the nation state, and the Weberian bureaucracy attached to it, was premised on the notion that the state could contain regulatory power (or a monopoly on the legitimate use of force) within its boundaries.13 While this 8

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See e.g. the definitions offered by F. Fukuyama, ‘What is Governance?’ (2013) 26 Governance 3, 350; or the World Bank: http://web.worldbank.org/WBSITE/ EXTERNAL/COUNTRIES/MENAEXT/EXTMNAREGTOPGOVERNANCE/0,,content MDK:20513159~pagePK:34004173~piPK:34003707~theSitePK:497024,00.html. In this sense, this definition is developed from a public law perspective: I refer to governance as a medium of advancing public rather than private objectives (excluding for example corporate governance from the ambit of this particular definition). HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 4, 623. See e.g. the work of the Normative Orders cluster based at Goethe Universität Frankfurt: www.normativeorders.net/en/. In the context of international law more broadly, see N. Krisch, Beyond Constitutionalism: The Pluralist Structure of Post-National Law (Oxford: Oxford University Press, 2011). Case C-62/14 Gauweiler and Others, Judgment of 16 June 2015; Order of the Second Senate of 14 January 2014, 2 BvR 2728/13. M. Weber, Economy and Society. An Outline of Interpretive Sociology (Berkeley: University of California Press, 1978), 54.

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was always an idealised vision, the early twenty-first-century state is one that must share and delegate power – to private actors, independent agencies and civil society – in order to wield it effectively. Once again, the EU only amplifies these problems.14 The EU’s governing institutions carry significant steering power yet ultimately have to rely on domestic Courts and administrations to implement their policies. They may have to engage in similar forms of ‘contracting out’ as states (e.g. to private standard setting bodies or regulatory agencies15), reflecting the lack of knowledge of central institutions on how their policies are being domestically applied.16 Even when all agree on the desirability of EU rules, the Union’s capacity to hierarchically enforce them is decidedly limited. Governance, therefore, refers to the exercise of both shared authority and conditional authority. Governance is an essential concept for the study of the EU in so far as it seeks to describe and reflect these two varieties of dispersal. If we seek to govern in the twenty-first-century EU, we seek to rule in a political landscape where the capacity and authority of central actors is grounded on uncertain terrain.

3 Governance as a Fundamental Rights Concept How suitable is a concept like governance, however, for the world of fundamental rights? At first sight, there is a basic incompatibility. Governance is an essentially political concept: it refers to the exercise of political power. Fundamental rights, on the other hand, are an instrument of legal constraint: of limiting power. Governance refers to the fracturing of rule: its displacement among different institutions and levels of governing.17 Fundamental rights, on the other hand, carry a universal element.18 They 14

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For some well-known accounts of difficulties associated with the implementation of EU action, see T.A. Börzel, T. Hofmann, D. Panke and C. Sprungk,. ‘Obstinate and Inefficient? Why Member States do not Comply with European Law’ (2010) 43 Comparative Political Studies 11. On standard setting, see D. Schiek, ‘Private Rule-making and EU Governance: Issues of Legitimacy’ (2007) 32 European Law Review. This is a central insight of experimentalist literature. See C.F. Sabel and J. Zeitlin, Experimentalist Governance in the European Union: Towards a New Architecture (Oxford: Oxford University Press, 2012), 9. See G. Marks, L. Hooghe and K. Blank, ‘European Integration from the 1980s: State Centric v Multi-Level Governance’ (1996) 34 Journal of Common Market Studies 3. See M. Goodhart, ‘Origins and Universality in the Human Rights Debates: Cultural Essentialism and the Challenge of Globalization’ (2003) 25 Human Rights Quarterly 4.

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are designed to carry a common, mutually accessible core of protection and to be enforced by authoritative central institutions. Finally, governance has often been seen – at least in the EU context – as in tension with the kind of hierarchical and static rule implied by the ‘rule of law’.19 Whereas law – and fundamental rights too – must exist in a state of relative stability to be meaningful, governance is something fluid and changing. Its very responsiveness to altered social and environmental conditions makes governance seemingly unsuitable for the idea of a fundamental set of rights that remain relatively constant regardless of external political, social or environmental conditions. As Gráinne de Búrca has summarised: One should question whether the so-called new modes of governance, with their emphasis on non-binding, non-justiciable instruments and on coordinating and informational mechanisms, are appropriate for the area of human rights protection, given what is generally said to differentiate ‘rights’ in law from other claims and interests is the availability of a legal remedy, usually a remedy which can be legally enforced, and usually in judicial proceedings. Is there a risk that the shift towards new modes of governance for the protection and implementation of human rights could denude them of their character as rights, undermining the idea of a core content and rendering the standards of protection ultimately fluid and flexible.20

While this critique is persuasive, it also carries a fundamental objection. Precisely, the challenges of ‘decentering’ and fracturing of authority that have made the concept of governance attractive to political scientists also apply to the legal world, and by extension to the world of fundamental rights. In many senses, the shift to governance was predated by legal movements such as the realist approach, which long observed the significant divergences between ‘law in the books’ and ‘law in action’.21 Law’s claim to authority, backed up by a single set of central institutions able to project their unified reading of FR across a single normative space, is weak, particularly in a European context. 19

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M. Dawson, ‘Soft Law and the Rule of Law in the European Union: Revision or Redundancy?’ in A. Vauchez and B. de Witte (eds.) European Law as a Transnational Social Field (Oxford: Hart, 2013). G. de Búrca, ‘New Modes of Governance and the Protection of Human Rights’ in P. Alston and O. de Schutter (eds.) Monitoring Fundamental Rights in the EU: The Contribution of the Fundamental Rights Agency (Oxford: Hart: 2005), 31. O.W. Holmes, ‘The Path of the Law’ (1897) 10 Harvard Law Review 457, 460.

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To take the fundamental rights example, EU FR have to deal with both of the varieties of dispersal mentioned above. First, in terms of ‘normative dispersal’, our understanding of fundamental rights is heavily conditioned by the legal and political systems in which we live. Legal interpretations of, and individual claims to, EU FR are fractured between different institutions and levels of governance, which sit in an unclear hierarchy. The Treaties themselves embody this dispersal, anchoring EU FR not just in the EU Charter but in ‘constitutional traditions common to the Member States’ and in the ECHR.22 National constitutional orders have, as a result, shown varied levels of resistance to the idea of a unified FR acquis in Europe.23 As Joseph Weiler has argued, European fundamental rights may also come with ‘fundamental boundaries’, i.e. rights that only fully make sense within particular political communities, in which individuals carry certain reciprocal duties and rights.24 If our critique of governance comes from the perspective of a unitary, stable, universal legal order, it is highly questionable whether – in an EU context at least – such an order exists. What we are left with instead is an interlocking, and often conflicting, set of fundamental rights regimes, all of which have to be coordinated for an effective system of protection to take hold. Secondly, in terms of ‘capacity dispersity’, the ability of EU FR to be successfully implemented is highly conditional. If a Court or other institution agrees to an FR claim, that claim must still be implemented like any other EU policy. In this regard, the EU faces all of its traditional capacity limitations. It must rely on national Courts and administrations to execute FR.25 It faces internal divisions between institutions over who has the responsibility for FR.26 It may lack knowledge on how to apply and alter its FR policies among diverse and changing national polities. Finally, the effective protection of FR may involve entrusting alternative 22 23

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Article 6 TFEU. See the special issue of E. Muir and C. Leconte, ‘Understanding Resistance to EU Fundamental Rights Policy’ (2014) 15 Human Rights Review 1. J. Weiler, ‘Fundamental Rights and Fundamental Boundaries: Common Standards and Conflicting Values in the Protection of Human Rights in European Space’, in R. Kastoryano (ed.) An Identity for Europe, The Relevance of Multiculturalism in EU Construction (London: Palgrave Macmillan, 2009). See e.g. the selective compliance regarding judgments dealing with social rights issues and posted workers discussed in M. Blauberger, ‘With Luxembourg in Mind. The Remaking of National Policies in the Face of ECJ Jurisprudence (2012) 19 Journal of European Public Policy 1. See e.g. Case C-540/03 Parliament v Council [2006] ECR I-05769.

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regulatory actors either within the EU framework (e.g. the EU Fundamental Rights Agency or EU Ombudsman) or outside of it (e.g. institutions of the Council of Europe) with tasks that central EU bodies are unable to conduct on their own. Even if we agree on who has the authority for EU FR, their execution relies on the effective coordination of an increasingly varied set of actors. None of these arguments are designed to dispute the normative uneasiness of applying a concept like governance to FR. At a normative level, the tense relation between the fluidity and decentering of governance and the idea of a normative core implicit in FR protection remains. Chapter 1 will explore this normative tension, arguing that it demands a procedural vision for the role of Courts and central institutions in protecting EU FR. Others may simply argue that – given these problems of normative and capacity dispersal – to talk of EU fundamental rights (rather than simply policies) is meaningless.27 At a descriptive level, however, our normative claims about EU FR, particularly from those in favour of a robust EU policy, should not blind us to the empirical landscape in which EU FR must live. If we agree that there is something like EU FR, an effective system for their protection must cope with the two varieties of dispersal discussed above. EU FR must establish a regime that is able to withstand the tensions both of overlapping and heterarchical normative orders and of limited central capacity. If the EU wishes to develop a robust FR regime, those rights cannot live in the ether but must be implemented in the real EU, with all of the institutional and political shortcomings that come with it. How has this task of ‘governing’ EU FR been conducted and how is it likely to be conducted in the immediate future?

4 What Are EU Fundamental Rights for? The book begins in Chapter 1 by addressing a more foundational question: To what extent is there a strong rationale for EU fundamental rights protection above the multiple protections offered via other orders? Human rights scepticism permeates much of academic and societal discourse, with the EU being no exception.28 In particular, scholars have questioned the depoliticising and individualising effects of EU 27 28

I am grateful to Martin Loughlin for a discussion on this matter. See e.g. T. Campbell, K.D. Ewing and A. Tompkins, The Legal Protection of Human Rights: Skeptical Essays (Oxford: Oxford University Press, 2011).

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fundamental rights: their ability either to act as instruments of centralisation, which displace and undermine other rights-based orders, or to promote an individualistic and market-based conception of EU citizenship, antithetical to the development of greater bonds of solidarity between European citizens. While this is a real risk, the normative defensibility of a strong EU role in FR protection may rely on the EU’s procedural role in patrolling FR violations. Drawing on the accounts of John-Hart Ely29 and Jürgen Habermas,30 the chapter argues that judicial review on FR grounds, or the activities of other EU monitoring bodies, is grounded not only in their ability to defend the dignity and autonomy of individuals but also to guarantee full equality and access to the political process. The contestation of transnational rights within diverse national polities (Weiler’s problem of ‘fundamental boundaries’) need not be debilitating in so far as the question of how to define rights, and who may hold them, encourages individuals to engage in the political process. Similarly, EU FR should not be seen as purely pre-political standards but also as objects of deliberation and debate, connecting individuals to the political sphere and encouraging the elaboration of new law. It is the very possibility to positively elaborate rights – and not just supervise their execution – that sets the EU apart from other international bodies attempting to guarantee or ‘monitor’ rights protection. The procedural approach, thus, sees FR in the EU as a shared constitutional responsibility.31 The primary duty to elaborate and guarantee FR rests with national and EU legislatures. A key governance challenge is how to divide these responsibilities (a question taken up in Chapter 2). At the same time, EU judicial review guarantees the representation of political outsiders and minority viewpoints within the political game of defining concrete rights, clarifying the roles and responsibilities of public actors at different levels of governance. The EU’s Courts and other FR bodies, under this model, may be required either to address imbalances and exclusions within the EU political process or to act where the 29

30

31

J.H. Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1980). J. Habermas, ‘On the Internal Relation between the Rule of Law and Democracy’ in The Inclusion of the Other (Cambridge: Massachusetts Institute of Technology Press, 1996); Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge: Massachusetts Institute of Technology Press, 1996). On the notion of shared responsibility in the context of EU judicial review more broadly, see M. Dawson, ‘Constitutional Dialogue between Courts and Legislatures in the European Union: Prospects and Limits’ (2013) 19 European Public Law 2.

whic h ins tit utio n s?

9

constitutional and democratic character of national political orders is fundamentally eroded (conditions that, as the case studies will explore, are real risks in the present European constitutional space).

5 Which Institutions? Ultimately, the question of whether the EU’s legal and political institutions can fulfil their FR tasks is an empirical one. Answering it requires tracing the institutional performance and FR processes of the EU’s main bodies; a task taken up in Chapters 2 and 3. The principal division between the chapters is between legal and political bodies – Chapter 2 focuses on the Court of Justice, examining its case law in the FR field, while Chapter 3 focuses on the EU’s political institutions. In both cases, governance approaches shed light on understanding institutional engagement with FR. In the case of the Court, the key question raised by governance research is how legal institutions deal with the varieties of dispersals discussed above. For other human rights bodies – such as the ECtHR – dispersal is managed via providing governments with a ‘margin of appreciation’, which allows them to safeguard FR standards in diverse polities depending on whether particular variables are present.32 The chapter, following the Strasbourg Court, outlines three such variables: diversity (i.e. whether rights are implemented in varied ways across states), the nature of rights (i.e. whether a particularly important right or its ‘core’ is affected) and procedural integrity (i.e. whether limitations on rights were democratically deliberated). The effective governance of FR in the EU similarly seems to require a Court of Justice able to balance the demands of the Charter for universal protection across the European legal space with the ‘fundamental boundaries’ of national constitutional orders, who themselves carry robust mechanisms for rights protection. As the chapter argues, the CJEU’s problems in managing this balance should be understood in light of the distinctive features of the EU system. While Strasbourg’s ‘margin of appreciation’ concerns deference to the national level, the EU order faces two margins – one to national legal orders and the other to the EU’s political institutions, who themselves 32

See S. Greer, ‘The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights’, Human Rights Files (Strasbourg: Council of Europe, 2000).

10

i nt r o d u c t i o n

may harmonise FR standards politically. These two margins may often stand in tension: defending the primacy of the EU legislature may involve subverting national constitutional orders aiming for a higher level of FR protection,33 while defending national FR may involve unravelling EU attempts to elaborate FR standards at a transnational level.34 It may be in these circumstances that the procedural approach developed in Chapter 1 is of use. The level of deference to one level of governance or another may depend on the robustness of the political process through which FR have been elaborated or restricted. While the CJEU, for example, may be justified in defending EU legislation elaborating FR against national challenge where that legislation has been developed through a robust political process, it may be less confident in doing so for measures in which the EU’s main representative institution has not been involved. In this sense, a governance approach urges legal institutions to understand their judicial role in ‘protecting’ FR in light of the EU’s political system as a whole, and the relative capacities and roles of its main bodies. A similar message applies in the case of the EU’s political institutions. Political engagement with FR also needs to be understood within the context of the larger institutional balance of the EU and the competition between institutions defending their roles in the EU’s policy-making process. This again is a key insight of governance research: institutions engage in policy-making with an eye to their mandates and are likely to use FR, like other areas of policy, as opportunities to either deepen their institutional reach or prioritise their core missions as institutions.35 As the chapter will argue, institutional engagement with FR ought to be understood in these terms. A useful example is the interaction of the EU institutions with bodies specifically mandated to supervise FR violations, such as the EU FRA. While a legislative initiator like the Commission may see FRA involvement as potentially disruptive to the unity of its legislative proposals, the European Parliament has often used FRA opinions – or those of the Article 29 Working Party on data protection – as useful tools in bolstering its legislative position against 33

34

35

See (discussed in greater detail in Chapter 2) Case C-399/11 Stefano Melloni v Ministerio Fiscal [2013] ECR I-0000. See Case C-362/14 Maximilian Schrems v Data Protection Commissioner, Judgment of 6 October 2015. See M. Jachtenfuchs and B. Kohler-Koch, ‘Governance and Institutional Development’ in A. Wiener and T. Diez (eds.) European Integration Theory (Oxford: Oxford University Press, 2004).

two c ase st udies

11

its main political interlocutor, the Council.36 Similarly, other bodies in the EU’s institutional landscape, like the European Ombudsman, may see FR as an opportunity to extend the reach of their investigative powers into new policy areas. Fundamental rights in this sense not only constrain political actors but also are often subsumed within the game of institutional competition. While this may seem an alarming message – an instrumentalisation of a set of values that ought to be foundational – its negative effects are tempered by the diversity of the EU’s institutional landscape. The chapter will point to many deficiencies in the Commission’s framework for making legislative proposals ‘fundamental rights proof’, particularly the tendency to reduce FR protection to one element of a vast process of impact assessment that assesses everything and thus often nothing. The very complexity of the EU’s political landscape, however, and the presence of multiple veto players, means that FR violations ignored by one set of actors are likely to be rectified by others. Within this diverse landscape, the EU institutions have gradually begun to divide FR responsibilities. While the Parliament, for example, has been criticised as politicising debates over FR,37 its function in relation to FR ought to be seen in light of its broader institutional mandate: to contest, publicise and debate FR issues, rather than submit them to a judicial logic of strict review. Similarly, while the EU’s Ombudsman carries no power to annul EU decisions violating FR, it has shown a remarkable institutional adaptability in encouraging administrative innovation to overcome capacity-based obstacles to the fulfilment of FR within specific EU institutions. Institutional competition, in its best forms, can lead to a division of labour in which different EU institutions check and supervise each other. While all is not rosy in the EU’s political landscape for FR protection, inter-institutional relations in the FR field can thus just as often improve as deplete the level of FR protection within EU policy-making.

6 Two Case Studies The tracking of institutional performance within these chapters is across policy fields – while certain areas of EU action are thus in focus, 36 37

See Chapter 3, Section 3.6(3.6.2) below. Even by its own members – see ‘Protection of Fundamental Rights must not be a Victim of Ideological Debate’ (12 December 2012). Available at: www.eppgroup.eu/press-release /Protecting-fundamental-rights-.

12

introduction

particularly data protection, there is a need to go deeper and to assess the governance of fundamental rights in relation to specific sets of rights. Chapters 4 and 5 take up this task with reference to two sets of rights – in Chapter 4, rights relating to Justice and the Rule of law, and in Chapter 5, those social rights protected under Chapter IV of the EU Charter. In respect to the rule of law, Chapter 4 tracks the EU’s institutional performance in relation to rule of law crises experienced in the last 5 years in two particular states – Romania and Hungary – as well as reflecting on recent developments in a third state, Poland. In all of these states, rule of law violations have followed an unusually common pattern,38 with governments seeking to re-enforce their authority through limiting both electoral competition and the powers of independent institutions in banking, media and the judiciary. As often discussed, the EU carries limited ‘direct’ mechanisms39 to address these challenges: its principal instruments to do so – the Commission’s rule of law mechanisms and the Treaty’s Article 7 procedure – are either (in the former case) too light and soft to act as an effective deterrent or (in the latter) too weighty and consequential to be used at all. In spite of this, the diversity of the enforcement mechanisms available under EU law nonetheless has given the Union a number of significant tools to gradually tackle threats to the rule of law. These tools have not been deployed ‘systemically’ – as urged by some existing proposals40 – but rather in an ad hoc and issue-by-issue manner. Many of the main pillars of national democracy and judicial protection have been protected by mechanisms – from EU funding lines to infringement actions relating to EU legislation to the cooperation and verification mechanisms of the enlargement processes – designed with quite different objects than rule of law protection in mind. The EU’s very lack of an overarching competence or procedure for rule of law protection has allowed it to tailor its strategies to the specific circumstances and dilemmas of each state. A governance approach once again illuminates when and how transnational FR protection can be successful in promoting domestic change. Many of the Union’s successes in forcing domestic change have depended 38 39

40

See Chapter 4, Sections 4.3 and 4.4 below. On the distinction between direct and indirect mechanisms, see M. Dawson and E. Muir, ‘Hungary and the Indirect Protection of EU Fundamental Rights and the Rule of Law’ (2013) 14 German Law Journal 10. K.L. Scheppele, ‘What can the European Commission do when Member States violate basic principles of the European Union? The case for systemic infringement actions’. Contribution to the Assises de la Justice, November 2013.

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not on coercion and political leverage but on building successful alliances either with domestic bodies (such as national Constitutional Courts) or respected external actors (such as the Venice Commission). Domestic factors – the receptiveness of a national public to external intervention and the interplay of domestic institutions – are crucial to the success of EU monitoring,41 and are likely to vary significantly between states. Again, the Union’s diversity makes a ‘one size fits all’ procedure for rule of law monitoring difficult to implement. In respect of social rights, Chapter 5 explores the impact of the Eurozone crisis – and its associated financial measures – on the enjoyment of social rights across three affected states: Greece, Portugal and Ireland. The tensions between EU action and social rights protection once again often follow a common pattern across states. While the empirical picture demonstrates severe downward pressure on a number of rights guaranteed under the Charter, from the right to social protection to protection from unjustified dismissal, an even more concerning element of financial assistance may be the pressure it has placed on institutions at the domestic level most able to contest and resist infringements of fundamental social rights. All financial assistance packages have involved measures that either cancel existing collective agreements between trade unions and employers or aim to reduce the coverage and bargaining power available to Unions in defence of such agreements.42 Following the procedural approach, the EU’s failure in the social domain concerns not just substantive pressure on the social state, but the sidelining via financial assistance of social institutions and political procedures designed to involve citizens in deliberating the trade-offs between the enjoyment of rights and general political objectives (such as financial stability). Financial assistance has tended to escape political and legal scrutiny across different levels of governance. This problem speaks again to some of the normative ambiguities of the EU’s turn to governance across policy areas. While, for its advocates, governance can be a means of joining up and integrating responsibilities, and of avoiding the overconcentration of power in the hands of central or executive 41

42

U. Sedelmeier, ‘Anchoring Democracy from Above? The EU and the Democratic Backsliding in Hungary and Romania after Accession’ (2014) 52 Journal of Common Market Studies 1, 114–117. See, as well as Chapter 5, Section 5.2(5.2.4) below, E. Achtsioglou and M. Doherty, ‘There Must Be Some Way Out of Here: The Crisis, Labour Rights and Member States in the Eye of the Storm’ (2014) 20 European Law Journal 2.

14

introduction

institutions,43 it can be deeply depoliticising. Its dispersion of power can result in the dispersion of accountability and responsibility, with each actor demanding that ‘someone else’ meet responsibilities, which properly should be shared.44 Governance can finally lead to confusion, with members of the public unsure as to who they should turn to in order to meet public tasks. The governance of social rights during the crisis bears out this latter story. Examining the response of national governments and the EU institutions to demands for accountability in relation to fundamental rights, the ‘mixed’ nature of financial assistance – mandated by the EU institutions, but outside of the EU’s normal Treaty structure – tends to allow both levels of governance to avoid political responsibility for ensuring FR obligations are met. For the EU institutions, financial assistance is a voluntary obligation and thus does not produce legal effects: a position effectively endorsed by the EU Courts. It is thus for national governments to ensure that FR guarantees are met. For national governments, financial assistance measures are externally dictated, leaving no room for national discretion, and thus no independent behaviour capable of censure on FR grounds. Each actor looks to the other to provide redress for social rights infringements for which both levels of governance are responsible. This may be one of the main pitfalls of multilevel governance: the EU’s divided government allows accountability for FR violations to be divided (and with it, avoided).45 In this sense, while this book will certainly argue that governance is a useful and important framework within which to evaluate EU fundamental rights, it will also point to the normative ambiguities that governing FR involves. The EU’s attempt to create a diverse and proactive implementation structure for FR has greatly increased its institutional capacity in the FR field; at the same time, EU leaders may yet create complex policy-making structures that allow individual violations to fall between its cracks. With the complexity of EU 43

44

45

‘And instead of fundamental rights being imposed top-down, on the basis of the jurisprudence of the highest judicial bodies, they are also to be built in a bottom-up perspective, on the basis of a comparison of what has or has not worked in specific settings’. O. de Schutter, ‘The New Architecture of Fundamental Rights Policy in the EU’ (2007) Université Catholique de Louvain Working Papers 9. On this challenge, see M. Bovens, ‘New Forms of Accountability and EU Governance’ (2007) 5 Comparative European Politics 1. M. Dawson, ‘The Legal and Political Accountability Structure of “Post-Crisis” EU Economic Governance’ (2015) 53 Journal of Common Market Studies 5.

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governance comes a high need for vigilance in holding EU actors to their FR commitments.

7 The Book’s Approach How should the reader approach this book? What does it choose to focus on, which methods does it employ and at whom is it aimed? While the book attempts to develop a scientific argument – that EU fundamental rights can benefit from understanding more closely literature on EU governance – it also carries a wider purpose. A major goal of the book is simply to use a critical eye to illuminate and explain an EU FR landscape that has evolved rapidly in the last 10 years. To this end the book, as outlined above, is split into three main parts: firstly a section (Chapter 1) that addresses the broader theoretical debate about the rationale for EU fundamental rights; secondly, a section (Chapters 2 and 3) that traces the performance of the EU’s main institutions in the FR field; and thirdly, a section (Chapters 4 and 5) that follows the EU’s performance vis-à-vis two particular concrete sets of rights. In this sense, the book can be read as a whole or accessed in chunks. In terms of its methods, the diversity of the EU’s FR landscape also means that the techniques employed to examine different aspects of EU FR are varied. Chapter 2 on the Court deploys quite different methods – close doctrinal analysis of relevant CJEU case law – when compared to Chapter 3 on the EU’s political institutions. Chapter 3 uses process tracing to examine how the EU’s main political institutions interacted to lower or strengthen the level of FR protection established via two legislative proposals. It also relies on external evaluations of the EU institutions in the FR field – for example the 2012 evaluation of the EU FRA46 and the evaluation of Frontex activities by its Consultative Forum on FR – to unpack the principal procedures used by the EU institutions to monitor FR and assess their effectiveness.47 The two case studies of this book combine a mixture of doctrinal and empirical research. In Chapter 4, the case law of the European Committee 46

47

For citations on all of the documents mentioned in this section, see the specific chapters below. The analysis provided in the book attempts to cover developments until the book’s completion in Spring 2016. While not used in a systematic manner, in-depth interviews with selected officials from the EU FRA and the three main political institutions were also used for clarificatory purposes.

16

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on Social Rights as well as the questionnaire data from a survey undertaken by the European Parliament are used to unpack the responsibilities and level of discretion available to EU and national actors when restricting social rights. In Chapter 5, the numerous opinions of the Venice Commission on Democracy and the Rule of law, as well as domestic legislation, were used to assess both restrictions on the rule of law in the states under study and the success of EU intervention in combating them. In the case of all chapters, the significant existing body of academic literature on EU fundamental rights has also been synthesised and relied upon extensively. In this sense, the book aims to be of use to students and practitioners seeking to wade into the complex system – and complex existing literature – on EU FR. Finally, there are many questions for which this book will be of little use. While the engagement of the CJEU with ECtHR case law will be briefly discussed in Chapter 2, the book does not extensively discuss the complex process of the EU’s accession to the ECHR – an issue highly uncertain and judicially undermined,48 at the time of the book’s adoption. It will also largely confine its attention to the internal dimension of EU FR. The complexity of the EU’s potential role as a global human rights actor, and the extensive existing49 and ongoing50 work examining this subject, has deterred the author from extending the book’s scope still further. Finally, its case studies are exemplary rather than exhaustive – they neither capture the entirety of the EU’s activities in relation to justice, the rule of law and social rights nor claim to be universalisable to other areas of EU FR. Instead, they simply demonstrate how the lessons of the book’s early chapters can be brought to bear in relation to two important recent clashes between FR and general EU policy-making. In spite of these caveats, the book aims to offer something for which many contributions since Alston and Weiler’s seminal piece have not aimed. Simply put, it offers an account that takes seriously the normative content of EU fundamental rights, yet which also recognises that EU 48 49

50

Opinion 2/13 of 18 December 2014 on Access of the EU to the ECHR. See, among others, A. Williams, EU Human Rights Policies: A Study in Irony (Oxford: Oxford University Press, 2004); G. de Búrca, ‘The Road Not Taken: The EU as a Global Human Rights Actor’ (2011) 105 American Journal of International Law 4; D. Horng, ‘The Human Rights Clause in the EU’s External Trade and Development Agreements’ (2003) 9 European Law Journal 5. See e.g. the FRAME project coordinated by the Leuven Centre for Global Governance Studies (www.fp7-frame.eu/).

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fundamental rights must be understood within the context of EU politics. Exploring the governance of fundamental rights involves understanding them as objects of political contestation: both between different legal orders and between EU institutions advancing and instrumentalising FR according to their distinct mandates. Finally, this exploration involves tracing how FR are caught between the wheels of political exigency: whether that be domestic transformation in Central and Eastern European states still emerging from the shadow of authoritarian rule, or the demands of a Euro area that often sees social rights as fundamental only in so far as they are compatible with financial stability. Governing EU fundamental rights requires a closer understanding of the political and institutional forces, which make FR protection at a transnational level possible (or act to decisively stand in its way). In this way, this book aims to harness governance research to provide new viewpoints from which to understand the EU’s seemingly endless fundamental rights challenges.

1 Critiquing and Theorising the Governance of EU Fundamental Rights

1.1 Conceptualising and Justifying EU Fundamental Rights How should we theoretically conceptualise the EU’s role in fundamental rights protection?1 There are two fundamental difficulties in answering this question. One involves asking about fundamental rights protection itself. Fundamental rights can be normatively defended and critiqued from a variety of normative standpoints; defending a role for them in the EU context thus inevitably involves engaging in general theories of human rights.2 The second difficulty involves asking about the EU: what kind of fundamental rights regime does the EU require, given its constituent features as an organisation? Here, the role of the EU in fundamental rights inevitably becomes bound up with a discussion of how to conceptualise the EU itself. This was well illustrated in the CJEU’s recent ECHR Accession Opinion, in which part of the Court’s objections to the accession agreement lay in its perceived conflation of the EU with the other Member States of the Council of Europe.3 When considering EU FR, should we primarily see the EU as a quasi-state and thus as an entity from which the individual ought to be protected, or should we see it primarily as an international organisation à la the Council of Europe, whose role is to limit and supervise potential national violations of FR (or some combination of the two)? From the very beginning, the EU’s FR policies have been intricately bound up with this broader discussion of how to apply 1

2

3

This particular chapter draws on arguments developed in an earlier article. See M. Dawson, ‘Re-generating Europe through Human Rights? Proceduralism in European Human Rights Law’ (2013) 14 German Law Journal 5. See e.g. P. Alston (ed.), The EU and Human Rights (Oxford: Oxford University Press, 1999), 69–146; A. Follesdal, J.K. Schaffer and G. Ulfstein, The Legitimacy of International Human Rights Regimes: Legal, Political and Philosophical Perspectives (Cambridge: Cambridge University Press, 2014). See Opinion 2/13 of 18 December 2014 at 49, 156.

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human rights norms to the EU’s supposedly sui generis legal and political order.4 The attempt of the EU to address these questions has fostered what Section 1.2 will label as significant ‘human rights scepticism’. Problems in EU FR protection abound, concerning not only the EU’s practical efforts in the FR realm (to be discussed in later chapters) but the very rationale driving its FR policies. These problems range from the absence of a general legislative basis for FR (in spite of the EU’s many FR objectives)5 to the perceived market biases of the normative lens through which FR have been elaborated.6 They also concern problems found in parallel systems such as the ECHR – how, for example, can EU FR meaningfully deal with ‘legitimate diversity’7 in how FR are seen and applied in culturally and socially diverse national orders? While this chapter will by no means discount these difficulties, it will argue that nonetheless there remains a rationale for a significant EU role in FR protection depending on how the EU’s role is conceived. Firstly, and in keeping with the introduction to this book, EU FR must be understood in light of the ambiguous nature of the EU as an organisation. This implies viewing EU FR via a ‘governance approach’, which acknowledges the multiple sources through which the EU’s power (and its potential abuse) is manifested.8 This approach denies that the EU must choose between the role of a primarily judicial supervisor of FR violations or that of an organisation committed to fulfilling FR through substantive policies. An EU that is neither state nor international organisation alone must combine both of these roles. A governance approach in this sense allows us to see EU FR as an integrated regime, with different branches and levels of governance (as well as private and civil society actors) imperfectly interrelating to pursue FR goals. In contrast to the traditional image of hierarchical enforcement of FR, institutions within the EU are always likely both to supervise FR violations and to require such 4

5

6

7

8

On these debates in the context of the early Communities, see G. de Búrca, ‘The Evolution of EU Human Rights Law’ in G. de Búrca and P. Craig (eds.) The Evolution of EU Law (Oxford: Oxford University Press, 2011), 467–474. See P. Alston and J. Weiler, ‘An Ever Closer Union in Need of a Human Rights Policy: The EU and Human Rights’ in Alston (ed.) supra, 22–27. See e.g. J. Copell and A. O’Neil, ‘The European Court of Justice: Taking Rights Seriously?’ (1992) 12 Legal Studies 2, 689–691. F. Scharpf, ‘Legitimate Diversity: The New Challenge of European Integration’ (2003) 1 Zeitschrift für Staats- und Europawissenschaften 1. See Introduction, Section I.3; M. Jachtenfuchs, ‘The Governance Approach to European Integration’ (2001) 39 Journal of Common Market Studies 2.

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supervision themselves. As the next chapter will argue, this interrelation provides an important role for the EU Courts not merely in ‘applying’ FR norms but in delineating the roles of different FR actors. Secondly, the EU’s existence as a diverse polity suggests what the chapter will term a ‘procedural’ vision of the role of law within FR.9 This vision requires viewing human rights protection not merely as an apolitical check on majority rule but as a mechanism to forge a more politically responsive and citizen-oriented EU project. The chapter will elaborate a vision of fundamental rights law that considers FR as a pathway to greater political engagement and contestation. While human rights may – in the EU polity as well as any other – limit national democratic choices, human rights norms also serve a procedural role in guaranteeing individuals access to the democratic process on an equitable basis, both at the national and EU levels. As the case studies of the book will explore, this vision sees a pluralistic and robust political sphere as itself the primary guarantor of high levels of FR protection. Finally, addressing one of the key drivers of EU human rights scepticism – significant moral disagreement between EU states about the scope of basic human rights – it will be argued that disagreement over what human rights entail, and who is entitled to them, may not only limit but act as a trigger for political discourse. Disagreement carries the capacity both to fragment common EU human rights policies and to activate public discussion (a discourse that may take place precisely because there is significant disagreement on how FR norms can best be protected). While law and courts may have an important procedural role in FR protection, that role is a necessary but far from sufficient condition for a credible EU system of FR protection to take hold. The bulk of the task of ‘governing’ EU FR – as Chapter 3 will illustrate – is likely to fall to the Union’s political institutions. It is precisely these institutions that separate the EU from other organisations committed to FR protection, and which have been particularly active in the FR field in the period since the EU Charter’s adoption. In this sense, the chapter outlines a very particular normative vision of EU FR, one that may or may not explain how EU FR are governed in practice (and how that governance is shared between different judicial and non-judicial institutions). This question – the fit of theory to current developments – will be the subject of the institutional discussions and case studies of the following chapters. 9

See Section 1.3 infra.

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1.2 EU Human Rights Scepticism 1.2.1 The Counter-Majoritarian Difficulty Let us start by considering the various objections to a robust role for the EU in fundamental rights protection. The critical literature is of course vast, so any overview must be selective.10 I would like here to focus on three main critiques. The first critique reflects a critique of human rights that is prevalent in all jurisdictions. This is the claim that the pursuit of human rights, enforced by independent judiciaries, conflicts with the democratic will.11 At the national level, this has often been described, in the words of Alexander Bickel, as the ‘counter-majoritarian difficulty’.12 How can human rights be seen as consistent with democratic principles if upholding human rights requires consistently overturning the will of the democratic majority? At the EU level, this critique has often been given an additional flavour. The EU Courts – distanced from the polities they rule upon – may carry even less popular legitimacy in enforcing human rights norms than national judiciaries. They face the additional difficulty that – even if all Member States of the Union can agree upon the same set of enumerated rights – states are likely to differ significantly on the interpretation and scope of these rights. To give one oft-cited example, Catholic Ireland may have a very different view of the scope of the right to life in relation to the foetus than secular France. Human rights, for all their universalist pretensions, may reflect distinct political choices that only make full sense in a national context.13 There may be a certain appeal to rights discourse at the EU level because of the EU’s ability, through its association with ‘universal values’, 10

11

12

13

For two excellent overviews, see M.B. Dembour, Who Believes in Human Rights? (Cambridge: Cambridge University Press, 2006); T. Campbell, K.D. Ewing and A. Tompkins, The Legal Protection of Human Rights: Sceptical Essays (Oxford: Oxford University Press, 2011). See e.g. J. Waldron, ‘The Core of the Case against Judicial Review’ (2005) 115 Yale Law Journal 1346. A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (New Haven: Yale University Press, 1986). See the important distinction made by Joseph Weiler between fundamental rights and fundamental boundaries; i.e. fundamental rights may be a product and lever for both fundamental unity and fundamental disagreement between polities. J. Weiler, ‘Fundamental Rights and Fundamental Boundaries: Common Standards and Conflicting Values in the Protection of Human Rights in European Space’ in R. Kastoryano (ed.) An Identity for Europe, The Relevance of Multiculturalism in EU Construction (New York: Palgrave Macmillan, 2009).

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to bind Europeans to a common normative discourse. By this critical view, however, disagreements over the scope of rights can only be resolved though democratic processes.14 Ironically, such robust political institutions, fully engaged in the business of deliberating trade-offs between different political claims and legitimising the outcomes, are precisely what the present-day EU lacks. Far from serving as a normative basis for a nascent EU identity, EU fundamental rights could thus ever more enmesh the Union in the counter-majoritarian difficulty.15 Any attempts by the Union to develop a strong discourse of rights will tend, by this view, to constrain national democracies without sustaining the development of democratic discourse at the EU level. Given this paradox, human rights are likely to drain, rather than bolster, the legitimacy of the EU project.

1.2.2 The Communitarian Critique – Individualising EU Citizenship The second critique I would like to comment upon is related to the first but is somewhat more complex. It also finds some resonance at the national level. This is the communitarian critique of human rights: the view that rights discourse encourages an overly atomistic and depoliticised view of the person. The Marxist critique of human rights, for example, has often portrayed human rights as an attempt to obscure stark economic inequalities that only radical political action can overcome.16 Human rights, by this view, encourage us to see ourselves as selfish and atomised citizens pitted against the state, while doing little to address underlying structural inequalities of power and opportunity.17 Many of these inequalities, e.g. in relation to property, are legally and ideologically enshrined through rights discourse itself.18 14

15

16

17

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R. Bellamy, ‘Still in Deficit: Rights, Regulation and Democracy in the EU’ (2006) 12 European Law Journal 6, 725–742. See the variation of this argument in relation to subsidiarity advanced by A. von Bogdandy, ‘The European Union as a Human Rights Organization: Human Rights and the Core of the European Union’ (2000) 37 Common Market Law Review 1316–1318. K. Marx, ‘On the Jewish Question’ in D. McLellan (ed.) Karl Marx: Selected Writings (Oxford: Oxford University Press, 2000). For an overview, see M.B. Dembour, ‘The Convention in a Marxist Light’ in Who Believes in Human Rights? (Cambridge: Cambridge University Press, 2006). One must note that ‘realist’ critiques also often follow a similar logic, i.e. that rights discourse encourages rights without concomitant responsibilities. See e.g. the classical objection of Jeremy Bentham to the idea of ‘natural’ rights: ‘From real law comes real

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While hardly identical, the communitarian argument finds its echo in a number of critiques of contemporary EU fundamental rights policy. These critiques see EU fundamental rights as either encouraging an overtly individualist conception of EU citizenship or tying fundamental rights too closely to fundamental freedoms and hence to economic capital.19 Discussing human rights in relation to citizenship, Joseph Weiler has advanced this communitarian argument. The spread of human rights discourse – a discourse that Weiler himself famously forwarded – has increasingly, Weiler argues, eaten away at its own foundations, establishing rights without the necessary sense of solidarity and responsibility between citizens needed to deliver them. As Weiler writes, discussing the Lisbon Treaty’s new citizenship clauses: In bestowing European Citizenship on all Member State nationals it subjects them to all the rights and duties to follow. But when one peruses the list that follows, duties somehow evaporate. European citizenship is a category which comes with rights but no active (or even passive) duties. The Union does indeed place the individual in the center, but at one and the same time puts into place a culture which cultivates self-centered individuals.20

The language of citizenship and rights may be forging new bonds of European identity, but along individual and egocentric lines. To again use Weiler’s language, these rights are promising values without the individual and societal virtues necessary to sustain those values in the long term.21 This critique finds resonance in more detailed accounts of ECJ case law. To take one example, Alexander Somek has argued in a recent monograph that EU anti-discrimination laws displace attention from the more robust forms of social intervention that would truly rebalance the EU’s existing market biases, while doing little to address existing structural patterns of distribution.22 One can find variations of this

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rights; but from imaginary laws come imaginary rights’. J. Bentham, Selected Writings on Utilitarianism (Ware: Wordsworth Editions Ltd., 2000), 458. See N.N. Shuibhne, ‘The Resilience of EU Market Citizenship’ (2010) 47 Common Market Law Review. J. Weiler, ‘Individuals and Rights – The Sour Grapes’ (2010) 21 European Journal of International Law 2, 278. See J. Weiler, ‘On the Values, Virtues (and Vices) of the European Construct: What We Can Learn from Aristotle, Aquinas and Maimonides’, presentation at the Hertie School of Governance (13 March 2012). As Somek argues, by ‘engineering’ equality, EU fundamental rights aim to create a Europe ‘inhabited by better people – and not a world where power differentials in the relation of

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argument in relation to a number of areas of EU law in which fundamental rights have played an increasingly significant role. Most famously in the field of labour law, the use of fundamental rights in the Laval23 and Viking24 cases has been seen as an archetype for the subordinate role fundamental rights play in the EU vis-à-vis the market.25 By elevating the right to strike to the status of a fundamental value in those cases, the CJEU, as critics see the Court not as strengthening fundamental rights protection but exposing it to a perverse logic.26 Rather than act as a check on other policies, fundamental rights in the EU too often must be assessed in light of their impacts on free movement. Through such techniques, fundamental rights are either subordinated or used to unravel collective solutions to public problems (in this case, the delicate balance between the interests of workers and employees represented through the Nordic system of collective bargaining).27 Such analysis is not confined to the field of labour law. In areas as diverse as healthcare,28 consumer protection,29 education30 and home affairs,31 fundamental rights have been seen as strengthening individuals at the expense of collective forms of problem solving and negotiated

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capital and labor have been readjusted such as to approach evermore closely a sustainable equilibrium’. A. Somek, Engineering Equality: An Essay on European Anti-Discrimination Law (Oxford: Oxford University Press, 2011), 15. Case C-341/05, Laval un Partneri Ltd v Svenska Byggnadsarbeteraforbundet and Others (2007) ECR I-11767. Case C-438/05, International Transport Federation v Viking Lines (2007) ECR I-10779. See e.g. A.C.L. Davies, ‘One Step Forward, Two Steps Back: The Viking and Laval Cases in the ECJ’ (2008) 37 Industrial Law Journal 2; S. Sciarra, Viking and Laval. Collective Labour Rights and Market Freedoms in the Enlarged EU in Cambridge Yearbook of European Law (Cambridge: Cambridge University Press, 2008). See N. Reich, ‘Free Movement v. Social Rights in an Enlarged Union – the Laval and Viking Cases before the ECJ’ 2 (2009) German Law Journal. On the domestic impacts of Laval in Sweden, see M. Ronnmar, ‘Laval Returns to Sweden: The Final Judgment of the Swedish Labour Court and Swedish Legislative Reforms’ (2010) 39 Industrial Law Journal 3. C. Newdick, ‘Citizenship, Free Movement and Health Care: Cementing Individual Rights by Corroding Social Solidarity’ (2006) 43 Common Market Law Review. H. Micklitz and I. Benohr, ‘Consumer Protection and Human Rights’ in G. Howells, I. Ramsay and T. Wilhelmsson (eds.) Handbook of Research on International Consumer Law (Cheltenham: Edward Elgar, 2010), 28–35. S. Garben, EU Higher Education Law: The Bologna Process and Harmonization by Stealth (Alphen aan den Rijn: Kluwer Law International, 2011). S.D. Scott, ‘Freedom, Security and Justice in the European Court of Justice: The Ambiguous Nature of Judicial Review’ in T. Campbell, K.D. Ewing and A. Tompkins (eds.) The Legal Protection of Human Rights: Sceptical Essays (Oxford: Oxford University Press, 2011).

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political solutions crafted at the national level. While these criticisms have various elements – from a concern regarding the balance between national and EU competences, to substantive concerns with the impact of EU rulings on complex systems of social protection – at their core is a fear that fundamental rights are protecting individuals only by undermining the bonds of collective solidarity necessary to deliver public goods.

1.2.3 The Empirical Critique – What Do EU Rights Add? Finally, EU human rights scepticism has often focused on a third point of critique. This critique is more empirical: it questions the added value for minorities and individuals that EU human rights protection may bring in relation to some of its alternatives (from national systems acting alone, to more political forms of human rights policy-making).32 Like the first critique, this is grounded in national debates about the legitimacy of human rights review. While human rights review is often based on the assumption that judiciaries will perform better in protecting individual and minority rights than legislatures (whose electoral incentives anchor their decisions in majority preferences), this is an empirical assumption, which may vary between national contexts.33 It may be particularly questionable in those states where judges are drawn from a narrow segment of the population or where (see later the example of Hungary) the membership of the judiciary may be skewered by the power of executive appointment.34 There may be particular reasons to advance this critique in the transnational, and particularly EU, context.35 Applying human rights norms effectively may require a detailed understanding of national laws and practices: either their moral and ethical significance or their effects (which may vary from state to state). To take an example of the first, in 32

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See e.g. M. Bellamy, ‘Constitutional Rights and the Limits of Judicial Review’ in M. Bellamy Political Constitutionalism (Cambridge: Cambridge University Press, 2007). See e.g. M. Tushnet, ‘The Political Institutions of Rights Protection’ in T. Campbell, K.D. Ewing and A. Tompkins (eds.) The Legal Protection of Human Rights: Skeptical Essays (Oxford: Oxford University Press, 2011), 297; J. Waldron, ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale Law Journal, 1376–1385. See K.L. Scheppele, ‘How to Evade the Constitution: The Hungarian Constitutional Court’s Decision on Judicial Retirement Age’, Verfassungsblog (9 August 2012). Available at: www.verfassungsblog.de/evade-constitution-case-hungarian-constitutional -courts-decision-judicial-retirement-age-part-ii/#.VUoJ_JOqkuA. See A. Follesdal, ‘The Legitimacy of International Human Rights Review: The Case of the European Court of Human Rights’ (2009) 40 Journal of Social Philosophy 4

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Brüstle (a case further discussed in Chapter 2), this required the CJEU to engage in a discussion of stem-cell research and the legal status of the embryo, providing it with an autonomous legal meaning under EU law. To take an example of the second, in Laval and Viking, this required engaging with the Nordic model of collective bargaining and social protection. While national judges may draw legitimacy in overriding public policies in the name of human rights from their embeddedness in the national political culture, and detailed understanding of applicable laws and facts, transnational judges are particularly distanced from the circumstances and subjects of their rulings. While other Courts, such as the ECtHR, have attempted to limit this critique by adopting particular mechanisms and rules of procedure, the CJEU shows limited signs of doing so. To take two examples, the ECtHR has explicitly adopted a ‘margin of appreciation’ (MOA) doctrine to limit its capacity to determine issues of particular local sensitivity;36 at the same time, a judge from the Member State accused of a human rights violation must be party to cases determined by the Court against that state.37 These two mechanisms allow the Court to both limit its standard of review in particular cases and gain contextual access to ‘local’ information. While the extent to which the CJEU has adopted an MOA doctrine will be the subject of the next chapter, there is little evidence of it explicitly doing so at least. Similarly, the CJ does not officially assign judges to chambers based on the case parties. On what basis, therefore, can we empirically suppose that the EU levels – particularly its Courts – are likely to effectively and legitimately govern EU fundamental rights? These arguments, collectively, build up a formidable, if not absolute, case against a strong EU fundamental rights role.

1.3 A Procedural Approach to Transnational Human Rights Protection? The critical view of human rights sketched above tends to assume a certain tension or opposition between judicial review based on human rights concerns and democracy as expressed via the collective political process. Human rights review is predicated upon the need to define spheres of action into which the state may not step, or to otherwise 36 37

On this doctrine, see Chapter 2, Section 2.2. See Art. 27(2) ECHR.

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defend a set of particularly ‘fundamental’ values. There is thus a limitation of politics based on standards that are largely pre-political. To what extent is this a correct characterisation of human rights review in general, or human rights in the European context in particular? On the one hand, the idea of an opposition between human rights review and democracy, and its associated problems of de-politicisation and individuation, can be challenged at a theoretical level (the purpose of this section). On the other hand, it can be challenged with reference to specific features of the EU order (in particular with reference to the diverse institutional structure through which EU FR can be enforced, the focus of Section 1.3.3). It is certainly a view that would be contested by what I will term a ‘procedural’ understanding of transnational rights. The theoretical underpinnings of this approach have been provided by two powerful defenders of judicial review: John Hart Ely38 and Jürgen Habermas.

1.3.1 Ely: Democracy and Distrust Ely’s approach, developed in Democracy and Distrust, has distinct American origins. It is premised on a rejection of both of the principal schools of American constitutional interpretation.39 To those who would ask judges to conform to the ‘original intent’ of the framers of the Constitution, Ely demonstrates the normative and empirical vacuity of interpreting vague norms according to the intent of the long-dead.40 To those who instead demand that judges read the Constitution in light of a set of deeper ‘fundamental’ values, Ely objects from the perspective of democratic theory: such an approach would amount to little more than a judicial usurpation of the political process.41 Ely in this sense adopts a strongly democratic reading of the US Constitution and of judicial review in general, one that sees the Constitution as an affirmation of the nation’s commitment to the democratic process. In light of this, how can judicial review be normatively defended? How can the ‘counter-majoritarian difficulty’ discussed earlier be overcome? 38

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40 41

Interestingly, the CJEU’s president has himself drawn on Ely in defence of EU-level judicial review. See K. Lenaerts, ‘The European Court of Justice and Process-Oriented Review’ (2012) 1 College of Europe Research Papers in Law 2. J.H. Ely, ‘The Impossibility of a Clause-Bound Interpretivism’ in J.H. Ely (ed.) Democracy and Distrust (Cambridge: Harvard University Press, 1980). Ibid., at 11. Ibid., at 45.

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Ely’s answer is to adopt a process-oriented vision of judicial review. In such a ‘process-oriented’ constitutional democracy, judges intervene less to defend fundamental values than to ensure an equitable and robust political process. Looking back at the supposed ‘judicial activism’ of the famous Warren Supreme Court, Ely argued that this Court’s interventionism was fueled not by a desire on the part of the Court to vindicate certain fundamental values . . . but rather by a desire to ensure that the political process – which is where such values are properly identified, weighed and accommodated – was open to those of all view-points on something approaching an equal basis.42

By this view, judicial review on grounds of fundamental rights is conducted not to limit political choices per se, but precisely to open up channels of political communication. Judicial review reflects the fact that an equal and fair political process cannot be achieved by electoral processes or divided government alone but requires judicial interventions aimed at ensuring that those who are subject to endemic discrimination or are otherwise undercounted are entered into the political process. Judicial review, or at least particular varieties of it, thus serves rather than limits democratic rule (understood as the right to equality in the formation of political decisions). Human rights norms are one of the key vehicles to achieve this. They serve to define who is a legitimate member of the polity, tying the fate of the majority to that of the political outsider. This requires, Ely argues, a fundamental re-reading of human rights provisions often seen as carrying a strongly ‘substantive’ element. To use one of Ely’s examples, the First Amendment of the US Constitution protecting freedom of speech is not just a defence of a fundamental value but a political commitment to an open and accountable democratic process, in which political decisions can be properly scrutinised and minority viewpoints heard.43 This approach demands that we reorient the viewpoint of the judge or policy-maker seeking to interpret fundamental rights norms. When faced with norms of a vague or open-ended nature, decision-makers ought to choose the interpretation that is most consistent with a democratic reading of the Constitution. To take the freedom of expression example mentioned above, this might require treating quite differently the 42 43

Ibid., at 74. Ibid., at 93–94.

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expression claim of a minority political party publishing a potentially defamatory election leaflet to that of well-represented business groups seeking protection of donations made to political candidates.44 It also promotes a more systemic and contextual understanding of human rights. If one adopts a process-oriented reading of the Constitution, adjudicators and policy-makers must be more attuned not only to legal but societal and practical obstacles to achieving political equality. The protection of minorities is of particular importance in this regard: a democratic constitution requires their political inclusion, yet majority decision-making is unlikely to allow them full access to the political process. Defying the legislative will in seeking to guarantee systemic democratic goals, such as minority protection, may be necessary precisely to ensure the constitutional framework’s democratic quality. Finally, while Ely’s theory is an account of judicial review, it is by no means one that treats Courts as the only relevant institutions in the safeguarding of fundamental rights, or in the protection of the democratic process more generally. A robust public sphere, party competition, the separation of powers and other features of the democratic system may also fulfil important functions both in protecting individual autonomy and in ensuring pluralism in the political process. Judicial review is in this sense a necessary but by no means sufficient condition for a full democratic process – respectful of the political equality of each citizen – to arise. According to Ely’s account, intervention to protect FR is conducted not only via the channel of human rights charters but via broader principles of constitutionalism.

1.3.2 Habermas: The ‘Internal Relation’ between the Rule of Law and Democracy While emerging from a different disciplinary and political tradition, there is much to connect Ely’s views with Jürgen Habermas’ insistence on an internal relationship between the rule of law and democracy.45 Like Ely, Habermas rejects the idea of an inherent tension between popular 44

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See e.g. the example of the US Supreme Court decision in Citizen’s United as discussed in E.B. Smith, ‘Representation Reinforcement Revisited: Citizens United and Political Process Theory’ (2013) 38 Vermont Law Review 445. J. Habermas, ‘On the Internal Relation between the Rule of Law and Democracy’ in The Inclusion of the Other (1998); ‘Private and Public Autonomy, Human Rights and Popular Sovereignty’ in Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge: Massachusetts Institute of Technology, 1996).

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democracy and fundamental rights protection. Instead, these two values exist in a mutually reinforcing reciprocal relation. The validity of law, and indeed of human rights, for Habermas, is thus not grounded in external morality alone but in democratic authorship – i.e. the political process.46 In this sense, Habermas, like Ely, rejects the anchoring of law, and adjudication, in values that are seen as ‘pre-political’. This view does not, however, de-legitimise but rather re-enforces judicial review. Human rights and the rule of law are precisely the instruments, for Habermas, that guarantee the democratic process, ensuring that its outcomes are the result of free democratic communication rather than strategic power and influence. The very ability of individuals to participate in the democratic process as free citizens requires certain preconditions, particularly that their private autonomy is secured. Citizens who are imprisoned without due process, who are endemically discriminated against, who do not have access to basic social provision or who are unable to vote or express themselves politically can hardly contribute to popular will formation. As Habermas describes it: Citizens can make adequate use of their public autonomy only if, on the basis of their equally protected private autonomy, they are sufficiently independent; on the other hand, they can arrive at a consensual regulation of their private autonomy only if they make adequate use of their political autonomy as enfranchised citizens.47

‘Private’ and ‘public’ autonomy should not be juxtaposed but should be seen as mutually re-enforcing. Minimum standards of fundamental rights protection – enforced through judicial institutions – ensure that individuals may express themselves adequately and equally in the public sphere, just as a robust public sphere is the only guarantee of equal and consensual private relations. Applied to the human rights example, human rights and democracy are thus not external to one another. Firstly, as outlined above, democracy requires human rights protection precisely as a precondition for a fully democratic discourse to take hold. Secondly, however, human rights norms themselves are not seen as ‘natural rights’ insulated from the democratic process, and un-subject to deliberation, contestation and renewal.48 Rather, the political process is itself a forum through which conflicts over rights legitimately take place. While this seems – and has 46 47 48

‘Internal Relation’, ibid., at 258. Ibid., at 261. J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge: Massachusetts Institute of Technology Press, 1996), 84–89.

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been critiqued49 as – a rather circular form of reasoning, Habermas’ account points to the interdependence and mutual conditioning of judicial review and democratic will formation. These two processes may sit in an uneasy, yet complementary, relation. Crucially, Habermas has sought to advance his democratic understanding of law’s validity at an EU level. Writing about the European Constitutional project in the early 2000s, Habermas posited the making of a central Constitution, with a written Charter of Fundamental Rights, as a means of regenerating European political identity, encouraging patriotism to legal procedures guaranteeing civic and private autonomy.50 Just as at the national level, EU law – and its associated fundamental rights – must serve as a linking device between public authority and democratic authorship, providing legitimacy for the enforcement of EU rules and protecting citizens from both state and transnational domination. As Habermas has written: A transfer of sovereign rights does not diminish the scope of civic autonomy only on the condition that the citizens of the one affected state cooperate with the citizens of the other affected states in making supra-national law in accordance with a democratic procedure.51

Just as national human rights seek to enter the individual into the political process on an equitable basis, so too EU fundamental rights seek to guarantee and enforce the democratic genesis of EU law. EU constitutionalism, and the establishment of an EU fundamental rights Charter, are in this way mechanisms to politically embed and connect EU citizens themselves with the European institutions acting in their name.

1.3.3 Proceduralism in European Human Rights Law How can these accounts inform the discussion on ‘human rights scepticism’ above? In part, this depends on the extent to which procedural approaches can be applied to the EU’s distinct context.52 While human rights in an EU context are, of course, quite different in nature to those national examples discussed by Habermas and Ely, EU human rights also often play a procedural role. Human rights – both as an element of the political culture of the EU and as enforced by the European Courts – not 49 50 51 52

See F. Michelman, ‘Democracy and Positive Liberty’ (1996) 21 Boston Review 5. J. Habermas, ‘Why Europe Needs a Constitution’ (2001) 11 New Left Review. J. Habermas, The Crisis of the European Union (Cambridge: Polity Press, 2012), 19. Ibid., at 14–20.

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only limit political conduct on behalf of individuals but play an important role in defining the contours of EU political citizenship, thereby entering individuals into the political process.53 In this sense, while there may be certain categories of rights – e.g. right to abortion or right to strike – that are the subject of disagreement and thus result from the democratic process, there are others that may be preconditions for the effective operation of the democratic process itself. An important first example of this is EU norms related to political citizenship and participation.54 Let us take first the example of access to documents. The right to access official documents of the Union is protected under Article 42 of the Charter: a right that is given concrete expression through legislation predating the Charter. In particular, Regulation 1049/2001 grants EU citizens rights of access to ‘all the documents held by an institution that is to say, documents drawn up or received by it and in its possession’.55 The European Courts have played a significant role in defending such access rights – and in paroling the boundaries between the public interest in disclosure and the list of justified exemptions.56 In Sweden v Commission, for example, the CJEU argued that the Commission could not simply rely on the fact that a document originated from a Member State to refuse a request – even though this is a mandatory derogation under Article 4(5) of the Regulation.57 Instead, the Commission was under a duty to engage in a dialogue with the Member States, by which Member States should first justify why document access should be restricted. In Sweden and Turco v Council, the CJEU also adopted a liberal approach in rejecting the Council’s claim that it could rely on an exception in Regulation 1049/2001 for legal advice.58 Rather than reject all document requests relating to legal advice, the Council was under an obligation, the Court insisted, to establish whether the specific document requested fell within the general category of documents that had to be classified in order to protect the integrity of legal advice. This was 53

54 55

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57 58

See also M. Dougan, N.N. Shuibhne and E. Spaventa (eds.) Empowerment and Dispowerment of the European Citizen (Oxford: Hart Publishing, 2012). See e.g. the rights contained in chapter V ‘Citizens’ Rights’ of the Charter. Art. 2(1), Regulation 1049/2001/EC regarding public access to European Parliament, Council and Commission documents, O.J. 2001, L 145/43. For a useful recent overview of the case law, see D. Adamski, ‘Approximating a Workable Compromise on Access to Official Documents: The 2011 Developments in the European Courts’ (2012) 49 Common Market Law Review. Case C-64/05 Sweden v Commission (2007) ECR I-11389. Joined Cases C-39 & 5205 P Sweden and Turco v Council (2008) ECR I-4723.

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especially the case with regard to advice on legislative proposals. As the Court argued: it is precisely openness in this regard that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole.59

The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights. This point of the Court mirrors closely the procedural role that judicial review on the grounds of fundamental rights plays in the accounts of Habermas and Ely. Rights-based claims need not be claims for individual protection only but are often oriented towards including individuals within the political process, or opening up channels of political communication. This is precisely the role that judicial review in this field has often played. In such situations Courts may not only grant and defend rights of access in relation to the political process but also define who the legitimate bearers of particular rights are. This was part of Ely and Habermas’ claim – judicial review for the purposes of human rights protection may also be needed to ensure or contest the representation and inclusion of outsiders or those who are undercounted in the normal political process.60 This is a particularly pressing issue at the time of this book’s writing: a period culminating in the possible deprivation of EU citizenship from millions of EU citizens as a consequence of the UK’s referendum on EU membership. There are also interesting strands of the CJEU’s case law that relate to this function. Paradigmatic may be two cases of the Court dealing with voting rights. In 2006, the CJEU was asked to decide on two cases regarding voting rights for citizens of territories on the EU’s margins. In the case of Spain v United Kingdom, at issue was the inclusion of Gibraltan citizens – including a number of non-UK citizens resident in Gibraltar – in the voting rolls for elections to the European Parliament (EP).61 In Eman and Sevinger, at issue was the denial by the Netherlands of the right to vote in EP elections to 59 60 61

Ibid., at 59. Ely, n. 39 above; Habermas, n. 45 above. This case was induced by an earlier ECtHR judgment. See Case C-145/04 Spain v United Kingdom (2006) ECR I-07917.

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citizens of Aruba, a territory part of the Kingdom of the Netherlands but not the EU.62 These were classic cases concerning the boundaries of political citizenship. In both cases prior legislative practice had served to exclude citizens who were deeply implicated in EU regulatory policies (some of them EU citizens, others not) from having a direct say in EU policy-making through parliamentary representation. In both cases, the CJEU chose to extend voting rights. In the Gibraltan case, the Court rejected the opinion of its Advocate General that the UK’s decision to include non-UK nationals in the electoral register would violate reciprocal obligations owed to other Member States.63 The Court argued that the UK Parliament was free to extend voting rights as it saw fit. In the absence of harmonising rules, EU citizenship and voting rights were not per se coterminous.64 In the Aruban case, the Court went further, arguing that it was arbitrary discrimination to allow Aruban nationals who left Aruba to carry voting rights to the European Parliament but to deny those same rights to residents remaining on Aruban territory.65 As the Netherlands failed to adequately explain this differential treatment, a presumption in favour of inclusion applied. While stopping short of arguing for a harmonised set of rules on rights of political citizenship, the Court and its Advocate General made significant steps in these cases to expand the personal scope of political citizenship.66 In extending voting rights to individuals who were outside the EU’s formal territory, like Arubans, but affected by its policies, the Court’s jurisprudence makes an essential procedural point. As stated by the Advocate General in the Gibraltar case: The democratic principle of universal suffrage upon which the EU is based . . . militates in favor of recognizing voting rights for the largest possible number of persons, and there possibly also for foreigners established in a particular state, who, like citizens, are effectively subject to the measures approved by the national and Community legislative authorities.67

Just as Ely argued for judicial review based on human rights as a mechanism to tie the interests of the majority to those excluded from the political 62

63 64 65

66

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Case C-300/04 Eman and Sevinger v College van Burgemeester en Wethouders van Den Haag (2006) ECR I-8055. Case C-145/04 Spain v United Kingdom (2006) ECR I-07917, at 78. Ibid., at 79. Case C-300/04 Eman and Sevinger v College van Burgemeester en Wethouders van Den Haag (2006) ECR I-8055, 61. On the extent (and limits) of this extension, see J. Shaw, ‘The Political Representation of Europe’s Citizens: Developments’ (2008) 4 European Constitutional Law Review. AG Opinion in Spain v United Kingdom, n. 63 above, at 77.

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process, so here citizenship rights are used to ensure that those affected by EU policies have the means of accessing EU politics. Human rights in this sense need not be oppositional to politics and the collective interest, but may act as a means of keeping political pathways open or ensuring that political decisions reflect the full polity rather than segmented and privileged parts of it. One should not, of course, overstate the significance of this case law. Much of the Court’s case law vis-à-vis human rights does not carry this political dimension.68 Equally, there is no guarantee that the European Courts will always play the role of refereeing the political process effectively. A human rights discourse in Europe that relied excessively on judicial institutions would surely run the risk of overreaching itself, either by overlooking important human rights violations or by interfering in sensitive areas of policy where judicial actors may not have the democratic legitimacy to act.69 In the field of political citizenship itself, there is an obvious example of this dilemma: the reluctance of the EU Courts to extend rights of EU migrants to vote in general elections in their host state.70 The procedural approach, however, as argued in Chapter 2, can inform and provide a normative benchmark for when Courts should or should not exercise ‘strong’ forms of judicial review. Where the national or EU judicial system and democratic process is functioning normally, judicial deference may be justified. As the later chapters of this book will discuss, however, there may be circumstances where the democratic process breaks down, or is at least systematically impaired. A key national example – discussed in Chapter 4 – may be where governments have accumulated sufficient legislative majorities that they can bend constitutional rules in their favour, distorting the political process, or removing certain voices from it altogether. In such circumstances, the idea that ordinary political contestation can better reflect democratic values and respect the equality of citizens seems fanciful. Judicial or other instruments may be needed precisely because no such functional political process exists. A further EU example – discussed in Chapter 5 – may be social rights in times of acute financial crisis. While 68 69

70

See e.g. the Court’s controversial case law on age discrimination. See e.g. the warnings in J. Weiler and P. Alston, ‘An Ever Closer Union in Need of a Human Rights Policy’ (1998) 9 European Journal of International Law 665–667. D. Kochenov, ‘Free Movement and Participation in the Parliamentary Elections in the Member State of Nationality: An Ignored Link?’ (2009) 16 Maastricht Journal of European and Comparative Law 2.

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again, a human rights sceptic may counter that the balance between social entitlements and the demands of a balanced budget is precisely the ‘meat’ of ordinary politics,71 many states conducting this balancing face strong EU/IMF surveillance, such that there is little opportunity for democratic scrutiny of the budgetary process (or of how social rights may be limited within it). Judicial review on FR grounds should not be seen in these cases in the same ‘de-politicising’ manner. In such circumstances there may simply be no functioning ‘politics’ worthy of the name to begin with.

1.4 Fundamental Rights and Political Disagreement 1.4.1 The Normative Value of Disagreement A second aspect of the sceptical accounts of EU human rights discussed above is their tendency to argue that the validity of EU human rights policy is hampered by significant disagreement between states. Given that Europeans may reasonably differ over the scope of rights, human rights policies can often serve to divide Europeans from one another rather than foster political engagement. This is often accompanied by the claim that European human rights too often supplant national collective solutions to public policy problems without being able to foster European solutions in their place. In this sense, the claim about disagreement relates to the claim of the ‘individualising’ effect of EU FR: that EU FR are, at best, oriented towards the ‘negative’ shielding of rights from the effects of the internal market, and at worst, engaged in the subordination of the former to the latter. A foremost example that bundles these complaints together concerns the Laval and Viking cases.72 These cases not only mired the Court in deep controversy but also illustrated deep divisions between Western European concerns that Eastern enlargement might lead to a ‘race to the bottom’ in social standards and Eastern European desires to have access to Western service and labour markets on non-discriminatory terms.73 For many, the Court undermined Nordic collective bargaining in circumstances where the possibility of EU legislation on workers’ rights is 71

72 73

See C. de Almeida Ribeiro, ‘Judicial Activism against Austerity in Portugal’, IConnect Blog (03 December 2013). Available at: www.iconnectblog.com/2013/12/judicial-activismagainst-austerity-in-portugal/. Laval, n. 23 above; Viking, n. 24 above. See U. Belavusau, ‘The Case of Laval in the Context of the Post-Enlargement EC Law Development’ (2008) 9 German Law Journal 12.

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limited by the delimitation of EU competences provided by the European Treaties. The story above, while accurate in many respects, also downplays an important factor: the normative value of disagreement.74 While disputes regarding the scope of particular human rights can indeed draw attention to normative fault lines between Europeans, they can also draw individuals and groups into the political process. While on the one hand, case law can be seen as determining the scope of rights, configuring a balance between different claims and thus depoliticising the issues involved, precise disagreement over the nature of that balance can encourage the politicisation of social and political choices. In simple terms, it is precisely because Europeans disagree about fundamental rights, that they may be motivated to politically contest and reshape core EU policies. This is a crucial compliment to Habermas’ conception of the interrelation of private and public autonomy mentioned earlier. The limitation on democratic choices with reference to human rights norms is not in the name of ‘pre-political’ standards, but in the name of norms that are open to contestation and challenge in the public sphere. The Laval and Viking saga is an example of the ambiguous role CJEU jurisprudence can play in this regard. These cases not only prompted consternation, but also considerable political activism to recast the balance being sought by the CJEU, either at the national or the EU level. The national side of this story is well described in a 2012 article by Michael Blauberger on the response to Laval and Viking across EU Member States.75 Blauberger’s analysis rests on the different strategies that governments choose when a decision of the European Courts disturbs national policy. Governments often seek an inclusion strategy, by identifying those most affected by the policy at issue (and thus most likely to litigate), attempting to satisfy their demands through political dialogue.76 The Laval saga is emblematic of such strategies at work. The importance of the collective bargaining system to Nordic identity created a strong non-compliance pressure; one that was counterbalanced by the threat of destabilising further litigation from private employers seeking to curb collective bargaining rights. As a result, the Swedish and Danish governments both established Laval commissions, including trade union 74

75

76

Such a point is of course the subject of wide-ranging philosophical debate. As a starting point, see J. Waldron, Law and Disagreement (Gloucestershire: Clarendon Press, 1999). M. Blauberger, ‘With Luxembourg in Mind . . . the Remaking of National Policies in the Face of ECJ Jurisprudence’ (2012) 19 Journal of European Public Policy 1, 109–126. Ibid., at 113.

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and employer representatives, which were tasked with suggesting reforms to the labour code in respect of these judgments.77 The eventual legislative reforms based on the ensuing reports left essential elements of the pre-Laval collective bargaining structure in place while addressing those parts of the judgments, e.g. the use of strike action to impose standards going beyond statutory minimum standards, which could form the basis of future litigation by foreign or domestic service providers. Here we have a fundamental rights claim that certainly disturbed existing policies. Yet, rather than trump national solutions, CJEU jurisprudence triggered a process of adjustment, contestation and negotiation between affected parties – resulting in a precarious yet workable compromise. A similar process of contestation and adjustment can be observed at the EU level. Laval certainly caused a storm of controversy. At the same time, however, this controversy prompted political reactions, both mobilising the European trade union movement78 and forcing official EU institutions, including the Parliament79 and the Commission, to respond.80 The Commission’s response eventually prompted two pieces of draft legislation dealing with the fundamental rights of posted workers.81 The Commission dropped one of these proposals, condemned by the political left as being insufficiently ambitious, after 12 national Parliaments expressed concerns that the proposals would violate the principle of subsidiarity.82 While at one level, this failure to agree on legislation at the European level seems to indicate the problems that transnational human rights 77

78

79

80

81

82

On the work of the Commissions, see J. Malmberg, ‘Posting post Laval. International and National Responses’, Working Paper of the Uppsala Centre for Labour Studies 5 (2010). See ETUC Responds to ECJ Judgments Viking and Laval, available at: www.etuc.org/a/ 4704. See e.g. the extensive discussions of the standing committee of the European Parliament on Employment, available at: www.europarl.europa.eu/document/activities/cont/20100 5/20100527ATT75143/20100527ATT75143EN.pdf. See e.g. the Commission President’s commitment to ‘fighting social dumping’ in his speech to the Plenary of the European Parliament in September 2009, available at: http:// europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/09/391. Commission Proposal for a Directive concerning the enforcement of the provision applicable to the posting of workers in the framework of the provision of services, COM (2012) 131; Commission Proposal for a Regulation concerning the enforcement of the provision applicable to the posting of workers in the framework of the provision of services, COM (2012) 130. See EU Observer, EU Anti-strike Rules Sink as Parliaments Wield Lisbon Powers, available at: http://euobserver.com/news/117523.

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jurisprudence can bring, it also illustrates the machinery the EU carries to politicise, discuss and contest fundamental rights issues. While the CJEU’s judgment provoked cross- and intranational cleavages, it also provoked political bodies and movements, from civil society organisations such as the European Trade Union Confederation (ETUC) to the plenary of the European Parliament, to consider how the balance between free movement rights and the right to strike should be drawn.83 Far from individualising political claims, the very framing of Laval as a human rights dispute served to politicise the issues involved, draw in a wide range of stakeholders and build a common, if messy, discussion on the boundaries of transnational rights.84 The accusation that the EU lacks the political machinery to debate and contest FR issues may have rung true 20 years ago, but is a claim that requires reassessment in light of the institutional mutations the EU has undergone in recent years. The use of those institutions to politicise FR – and the impact of politicisation on the overall standard of FR protection – will be further discussed in Chapter 3.

1.4.2 The Collective Enforcement of Fundamental Rights The Laval dispute alludes to a larger and final point to be developed in relation to the individualisation critique.85 Laval illustrates the close links between human rights policies and civil society. While the Laval dispute was primarily fought in the context of official institutions, it also activated a discourse among organised and disorganised civil society groups. The use by such groups of rights discourse both challenges the critical claim of human rights as individualistic and points ahead towards the future use of human rights as facilitating transnational dialogue. This insight has been tracked by a growing band of literature focusing on strategic litigation and the collective enforcement of European law.86 83 84

85

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See ETUC, n. 78 above. See also Business Europe Press Release on Posted Workers, available at: http://62.102.106 .140/docs/1/LODPJICBCJAGCOPFNECEAJKMPDWY9DB67N9LTE4Q/UNICE/docs/ DLS/2012-00396-E.pdf. On collective enforcement in EU law more generally, see the 2014 special issue of Legal Issue of Economic Integration: M. Dawson and E. Muir, ‘One for All and All for One? The Collective Enforcement of EU Law’ (2014) 41 Legal Issues of Economic Integration 3. See e.g. R.A. Cichowski, The European Court and Civil Society: Litigation, Mobilization and Governance (Cambridge: Cambridge University Press, 2007); L. Hodson, NGOs and the Struggle for Human Rights in Europe (Oxford: Hart Publishing, 2011); D.P. Tzakas,

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The founding premise of this literature is that Courts have become forums for political mobilisation by organised groups who seek to use legal opportunities to fulfil collective and political claims. This will often involve the selection and support of promising litigants in national jurisdictions. By bringing test cases, these litigants may encourage the resolution of rights claims before higher international Courts. The advantage of such a strategy is considerable: while a ruling by a lower Court may only provide relief to the affected individual, higher Court rulings, including from the CJEU, may carry effects across a wide jurisdiction.87 An important example in this regard is anti-discrimination. Pioneering cases in this field such as the Defrenne88 judgments were brought by female activists seeking not just to protect themselves but to use the new vehicle of EU law to challenge entrenched national practices.89 What was once the work of lonely jurists – like the Belgian labour lawyer Elaine Vogel-Polsky, who encouraged Gabrielle Defrenne to bring her case – has gradually evolved into something larger: small social movements led by larger umbrella organisations using both legal and political channels to advance equality rights. A useful example of this is the Race Directive, which was established in 2000 and establishes the principle of equal treatment with respect to race and ethnic origin.90 In a 2010 article in the Journal of Common Market Studies, Rhonda Evans Case and Terri Givens explored the decisive role that an umbrella civil society group, the Starting Line Group (SLG), played in the Directive’s creation.91 This group, established in 1991, explicitly embraced a rights-based strategy for the advancement of racial equality, targeting the establishment of an EU Directive promoting racial equality in all Member States. After successful lobbying, many of the provisions in the first Commission draft of the Directive replicated SLG proposals, such as the expansion of the directive’s scope to include

87

88 89 90

91

‘Effective Collective Redress in Antitrust and Consumer Protection Matters: A Panacea or a Chimera?’ (2011) 48 Common Market Law Review 4. See M. Dawson, E. Muir and M. Claes, ‘Enforcing the EU’s Rights Revolution: The Case of Equality’ (2012) 3 European Human Rights Law Review 286–290. Case C-80/70 Defrenne v Belgium (1971) ECR 445. Cichowski, n. 86 above, 171–206. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, O.J. L 180. Ronda Evans Case and Terri E. Givens, ‘Re-engineering Legal Opportunity Structures in the European Union? The Starting Line Group and the Politics of the Racial Equality Directive’ (2010) 48 Journal of Common Market Studies 2.

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private employers and the demand that Member States establish specific equality bodies to monitor discrimination on the ground of race.92 Interestingly, a core part of the SLG’s strategy maintained in the final Directive was a focus on subsequent legal remedies and enforcement.93 The Directive, for example, reversed the burden of proof in racial discrimination litigation94 and also demanded that Member States allow civil society organisations to assist individual litigants in prosecuting race discrimination claims.95 A key element of the Directive is therefore its capacity to allow civil society groups to advance strategic litigation in the Member States designed to elaborate and enforce the Directive’s content. To paraphrase the words of strategic litigation literature, the Directive established a legal opportunity structure for enforcing its terms.96 The EU has itself devoted resources towards encouraging civil society groups to monitor and enforce human rights claims in this way. The European Commission has promoted strategic litigation, partially as a way of overcoming its own resource limitations in enforcing EU law effectively. In 2005, for example, it sponsored a programme, SOLID: Promoting Strategic Litigation, designed to inform and create a network of civil society groups able to legally assist victims of discrimination.97 The Commission has explored whether to go much further, developing rights of collective redress or class action through which collective bodies could enforce EU law directly; a proposal that has been so far confined to the field of economic and consumer law.98 Collective enforcement should be seen, however, as going far beyond the use of judicial strategies. It also refers to FR as a framing device for political mobilisation. An example of this that will be further explored in Chapter 3 is the EU’s ‘Better Regulation’ agenda. That agenda seeks to improve the quality of legislation, yet has also been criticised as deregulatory, and as establishing increasing explanatory 92 93

94

95 96

97 98

Ibid., 230 and 231. On this element of the Directive, see M. Bell, Anti-Discrimination Law and the European Union (Oxford: OUP, 2002), 391. See Art. 8, Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180. Race Directive, ibid., Art. 7(2). See e.g. Lisa Vanhala, ‘Legal Opportunity Structures and the Paradox of Legal Mobilization by the Environmental Movement in the UK’ (2012) 46 Law and Society Review 3. Case and Givens, n. 91 above, 236. European Commission, Public consultation: Towards a Coherent Approach to Collective Redress SEC(2011)173 final.

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burdens on the EU legislature when developing new proposals. Under one element of this agenda – RE-FIT – the Commission commits to assessing not only future proposals but also the existing acquis, on the basis of a cost–benefit analysis of regulatory burdens. Legislation elaborating FR has not been immune from RE-FIT: announcing its Regulatory Fitness Communication in October 2013, the Commission refused, on the grounds of its ‘burdensome and costly’ effects on SMEs, to propose a Directive implementing a collective agreement negotiated by the EU-level social partners on implementing Article 31 of the Charter on health and safety and work in the hairdressing sector.99 A proposal on improving access to justice in environmental matters was also dropped. It is difficult to see how a refusal to develop FR legislation can be challenged through traditional FR tools, such as judicial review. The ability to force the Commission’s hand legally through the ‘duty to act’ is notoriously difficult.100 EU civil society actors have, however, attempted to apply pressure on the Commission in other ways. Sixtyfive EU-level consumer, environmental, trade union and public health NGOs joined to form a ‘Better Regulation Watchdog’ in May 2015.101 The watchdog’s mission has been to raise public awareness on decisions that often precede the more public ordinary decision-making process, i.e. on whether proposals should be withdrawn or repeals of the existing EU legislative measures sought.102 While the Better Regulation agenda has continued, the watchdog’s rights mobilisation has had some success – in May 2015, the Commission agreed to the establishment of a RE-FIT platform, bringing together a number of civil society representatives to oversee and provide opinions on initiatives undertaken under the Better Regulation agenda.103 Similarly, many of the more deregulatory aspects of the Commission’s proposals (e.g. restrictions on national ‘gold-plating’ of EU acts with higher consumer or environmental standards) were dropped from a 2016 99

100

101 102

103

Press Release, ‘“REFIT – Fit for growth” – Commission takes Ambitious Next Steps to Make EU Law Lighter’, 2 October 2013. Available at: http://europa.eu/rapid/pressrelease_IP-13-891_en.htm. See P. Craig and G. de Búrca, EU Law: Texts and Materials (Oxford: Oxford University Press, 2015), 436–439. See: www.betterregwatch.eu/BRWN_Founding_Statement_and_Members.pdf. According to the Commission, 53 proposals were withdrawn in 2014. See: http://europa .eu/rapid/press-release_MEMO-14-426_en.htm. Commission Decision of 19 May 2015 establishing the RE-FIT Platform, COM (2015) 3261.

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inter-institutional agreement following resistance by the European Parliament.104 Whereas this example speaks to the use of civil society to oversee Commission activities likely to have an impact on FR, other EU frameworks use civil society to create monitoring and reporting instruments designed to investigate how EU rights are complied with. To give an example from the field of minority rights protection, the Commission responded to the significant controversy in 2011 over the deportation of Roma minorities from France by setting up a ‘EU Framework for Roma Integration Strategies’, which combines EU-level priorities and guidelines with a process of national monitoring and reporting which also includes a platform for NGOs engaged in minority protection.105 The platform is designed to monitor national performance, including the voice of Roma groups in guideline setting, and exchanging national best practices.106 These examples both demand revisiting the claim that EU human rights policies carry a depoliticising or individualising effect, and require a word of caution. Certainly, vigilance is needed in drawing the boundaries between grass-roots engagement and co-option by central institutions. The Commission’s promotion of strategic litigation could be seen not only as a contribution to civil society but as a way of utilising such groups to achieve goals the Commission should deliver itself (such as, in the Roma example, the policing of infringements of EU law by large and politically powerful Member States). There is an obvious conflict of interest danger in central institutions funding the very ‘NGO’ bodies who are supposed to ultimately scrutinise their activities. This reservation may require close attention to be paid to the institutional relations between civil society actors and central EU institutions: how can the EU promote, without simultaneously dominating, productive social contestation of EU FR? And how does institutional politics, including the self-interest of institutions seeking to enlarge and protect 104

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Provisional Text of the Proposed Inter-Institutional Agreement on Better Law-making, 15 December 2015. Available at: http://ec.europa.eu/smart-regulation/better_regulation/ documents/20151215_iia_on_better_law_making_en.pdf. Commission Communication, An EU Framework for National Roma Integration Strategies up to 2020, COM (2011) 173 final. On the need for a governance framework to tackle minority rights abuses, see M. Dawson and E. Muir, ‘Individual, Institutional and Collective Vigilance in Protecting Fundamental Rights in the EU: Lessons from the Roma’ (2011) 48 Common Market Law Review 3. Commission Communication, ibid., at 12.

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their political mandates, affect the governance of EU fundamental rights? This question will be taken up in Chapter 3 of this book. These examples at least demonstrate, however, that the development by the EU of a serious human rights policy is not only a means of advancing particular fundamental values but of encouraging some of the basic institutions of transnational civil society, such as common discussions, monitoring structures and fully developed nongovernmental organisations, to develop. The interaction of civil society groups able to defend, channel and contest societal values – engaging both in legal claims and in political debates – is an important ingredient in shifting the EU from a technocratic or market view of its own make up. The politicisation of EU FR is by now an unignorable feature of the EU’s constitutional landscape.

1.5 Conclusion These observations are designed to establish the outlines of a ‘procedural’ approach to transnational human rights protection. This procedural approach aims to address claims of the depoliticising and individualising effect of EU fundamental rights by pointing to the use of human rights not only in ‘trumping’ political choices but in generating political deliberation and commitment. The examples used are exemplary and not comprehensive – the next chapters will question to what extent such a procedural vision has been advanced by the various EU institutions in practice. In this sense, the chapter has primarily intended to shed light on an aspect of FR that critical accounts tend to downplay or ignore. What, though, about the third, more empirically oriented, brand of EU human rights scepticism? This scepticism questions not the motives of the EU vis-à-vis human rights but its human rights capacities. By this account, the EU is simply too distanced and remote an actor to govern and police fundamental rights violations adequately. As discussed above, this critique relates often to the perceived ‘negative’ nature of many of the EU’s FR policies – effective governance of FR requires far more than judicial supervision, but requires proactive institutions, which are able to ‘promote’ and ‘fulfil’ human rights guarantees across the EU.107 As an empirical critique, this critique also has to be evaluated empirically. One element of it, for example, is to assess whether the EU Courts 107

See A. Williams, ‘Human Rights in the EU’ in A. Arnull and D. Chalmers (eds.) The Oxford Handbook on EU Law (Oxford: Oxford University Press, 2015).

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engage in a form of ‘margin of appreciation’ designed to respect ‘legitimate diversity’ between states. This will be examined in the next chapter. One also has to keep in mind, however, the significant advantages the EU’s institutional machinery offers over other transnational human rights systems in addressing this empirical critique. While systems like the ECHR use vehicles like a margin of appreciation or the presence of state judges to ‘resensitise’ them to national political cultures,108 the EU carries something the ECHR lacks – a set of developed political institutions. The significance of this institutional framework is not only that it can elaborate and positively promote particular categories of rights but also that it carries a sophisticated decision-making machinery, in which a diverse set of actors – from national governments to EU parliamentarians – have to be consulted and included for legislative measures to be passed. Unlike other transnational rights systems, the EU already carries a significant apparatus to bind and embed its reading of FR within national orders. This institutional machinery broadens our field of inquiry as regards empirically evaluating EU FR. The effectiveness of EU FR must be evaluated in terms of its institutional make-up taken as a whole. The limited instances of the CJEU invalidating EU measures on FR grounds,109 for example, need not be an indication of timidity, where we see other institutions, both prior to and during the legislative process, which have brought FR infringements to light and worked to eliminate them. Equally, the passing of legislative acts with the potential to violate FR may be less worrisome where potential infringements can be monitored by an independent FR agency, and where both judicial and nonjudicial instruments (like the Commission’s infringement power or recourse to the EU Ombudsman) offer multiple routes to address FR violations as they arise. Adopting a governance lens allows us to widen our view of the empirical effectiveness of EU FR and, as a result, to see the judicial defence of FR as one part of a larger system of protection. In this sense, while the empirical critique worries about both the ‘distance’ of the EU order from individuals and the legal monopoly on transnational rights protection, the robustness of this critique depends 108

109

See L. Azoulai, ‘The European Court of Justice and the Duty to Respect Sensitive National Interests’ in M. Dawson, E. Muir and B. de Witte (eds.) Judicial Activism at the European Court of Justice (Cheltenham: Edward Elgar, 2012), 168–171. See e.g. the criticism offered on these grounds by Damian Chalmers, ‘The European Court of Justice is Now Little More Than a Rubber Stamp for the EU’, LSE EUROPP Blog (08 March 2012). Available at: http://blogs.lse.ac.uk/europpblog/2012/03/08/ecj-rubberstamp-replacement/.

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on empirically considering how the EU interacts with national legal orders and on whether the procedural promise – of using EU FR to protect the vulnerable and excluded, and to revitalise political processes of FR protection – is fulfilled. It is to this task that the following chapters will now turn.

2 The Court of Justice in the Governance of EU Fundamental Rights

2.1 Introduction The last chapter has discussed the outlines of a procedural approach to FR protection in Europe. What would such a procedural approach look like in concrete terms when applied to the activities of the EU Courts, and in particular, their role in ensuring that the EU Charter of FR, as well as other sources of EU FR, are complied with? Such a procedural role involves two assumptions about the role of Courts in the EU legal order. One is that such Courts are not as central to the protection of fundamental rights as many assume. While EU and national CCs often justify their very existence in terms of their ability to defend rights that majoritarian political processes may ignore, fundamental rights, like other laws, must be obeyed and implemented in society and via ordinary political processes. It is through politics, whether at the national or EU levels, that fundamental rights are deliberated and shaped. Courts should be seen as one player among many in the governance of FR in Europe. A second assumption, however, is that Courts have an irreplaceable role to play in the governance of EU FR so long as that role is considered in different terms. Transnational Courts should be seen not just as ‘last instance’ defenders of substantive rights but as intermediaries between individuals and the political process, as well as between institutions acting to protect (and potentially, erode) FR at different levels of governance. In this sense, Courts play a structuring role, both in ensuring that FR considerations are adequately represented and forwarded in policymaking and in delineating the role of national and EU-level actors engaged with responsibilities for rights protection. In the EU’s complicated rights architecture – one containing multiple overlapping FR orders – this coordination role may be particularly crucial. This chapter will engage these twin roles for the EU Courts in the governance of EU FR by exploring two key questions. The first concerns 47

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the relationship between national and EU fundamental rights. As highlighted in Chapter 1, one of the central controversies surrounding the EU’s role as an FR actor is the extent to which it may supplant the tasks of national institutions and constitutional frameworks. EU FR carry the capacity at least to erode ‘legitimate diversity’ in how fundamental rights are implemented in distinct national political and cultural contexts.1 Managing the interaction between national and EU fundamental rights law entails a degree of deference or ‘margin of appreciation’ for Member States in striking their own balance between FR and other legitimate public policy objectives. A first question will, therefore, be to examine to what extent the EU Courts have developed such a ‘margin’ in their interaction with national Courts (and if not, why not). The second key question concerns the application of EU fundamental rights law in EU policy-making. A ‘margin of appreciation’ can be seen in one of two ways: either as vertical deference by the EU Courts to their national counterparts in applying FR standards or as horizontal deference to the legislature that must play a political role in weighing FR standards and other societal interests. As the last chapter discussed, an increasing shift towards legislative involvement in FR protection is also an important feature of the last two decades of EU FR. A ‘procedural approach’ to FR protection would imply a close concern for the integrity of the political process and for the inclusion of marginalised interests in policy-making when determining how EU legislation infringing FR standards should be reviewed. To what extent is this approach followed in the relevant case law? As we will discover, one of the key insights to understanding the role of the EU Courts in governing EU fundamental rights is via the tension between these two margins. Displaying deference towards national visions of fundamental rights could involve overriding legislative attempts at the EU level to harmonise particular FR standards, just as respecting the discretion of the EU legislature could lead to neglect for the diversity of national interpretations of key FR claims. The last section will, therefore, be devoted to considering how the EU Courts should act when faced with this trade-off: it is precisely in such situations that a procedural approach to judicial review on FR grounds may be of use. 1

F. Scharpf, ‘Legitimate Diversity: The New Challenge of European Integration’ (2002) 1 Les Cahiers Européens de Sciences Po.

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2.2 The Margin of Appreciation under the ECHR In considering the relation between national and European FR, a more foundational question needs to be addressed first (a question also explored in the last chapter). To what extent do transnational and European Courts provide an added value in enforcing FR in Europe beyond the myriad other ways in which FR in European constitutional orders are protected?2 Addressing this question forces us into an uneasy paradox. On the one hand, EU FR protection must imply something above and beyond the weighing and balancing of FR going on through national constitutional orders. This ‘something’ may mean many things, from the inclusion of outsiders to the objective review of policies limiting FR away from the majoritarian tendencies of national orders. On the other hand, however, the second guessing of processes of national FR protection could serve to unravel delicate political and legal compromises established at the national level, undermining the legitimacy of national institutions (like Constitutional Courts) in the process.3 Adding nothing to the national mix leaves EU FR redundant; adding too much makes them colonising. A ‘margin of appreciation’ (MOA) can be seen as a vehicle for addressing this paradox, and in doing so, addressing the first element in the twin causes of the turn to governance in EU studies identified in the introduction – normative dispersal. In simple terms, that margin can be seen as the expression of the desire for transnational Courts to act only where necessary and only where the core elements of international FR standards have been breached. While this doctrine is relatively foreign to the EU’s legal order, it finds some equivalence in the EU doctrine of subsidiarity, which implies that the EU should act only where equally effective action at the national level is impossible. The difficulty of course is in determining when transnational intervention is or is not ‘needed’. The first point of departure in addressing this question is surely the ECHR system. The European Court of Human Rights has developed one

2

3

See J. Weiler, ‘Editorial: Does the European Union Truly Need a Charter of Rights?’ (2000) 6 European Law Journal; A. Follesdal, ‘Much Ado about Nothing? International Judicial Review of Human Rights in Well Functioning Democracies’ in A. Follesdal, J. Schaffer and G. Ulfstein (eds.) The Legitimacy of International Human Rights Regimes (Cambridge: Cambridge University Press, 2014). For an influential early statement of this danger, see L. Besselink, ‘Entrapped by the Maximum Standard. On Fundamental Rights, Pluralism, Subsidiarity in the European Union’ (1998) 35 Common Market Law Review 3.

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of the most advanced formulations of the MOA doctrine.4 While often criticised, the MOA is one mechanism by which the Convention system attempts to address ‘legitimate diversity’ in FR protection, i.e. the danger that an overly centralised FR system will override national systems, undermining the commitment of Council of Europe states to the central rights regime. In its words: The Convention leaves to each Contracting State, in the first place, the task of securing the rights and liberties it enshrines. In particular, it is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them. Consequently, Article 10 para. 2 leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator (‘prescribed by law’) and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force.5

This formulation tells us more about the purpose of the margin than about the circumstances in which it is to apply. Primarily, the purpose is framed in terms of the idea, akin to subsidiarity, that national institutions may be better placed than transnational ones to consider how FR may best be implemented in the national order. Not only are national judges better embedded in their constitutional frameworks, but those frameworks themselves may accord a different priority to certain rights depending on national political and cultural traditions.6 As Joseph Weiler has argued, this national framework reflects the decision of a political community to articulate common values within the ‘fundamental boundaries’ of the nation state.7 Fundamental rights may, and arguably must under this view, be protected without there being 4

5 6 7

For an overview, see S. Greer, ‘The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights’, Human Rights Files (Council of Europe, 2000). ECtHR, Case No. 5493/72 Handyside v United Kingdom, at 48 and 49. Ibid.; Case No. 42857/05 Van der Heijden v the Netherlands, at 55. J. Weiler, ‘Fundamental Rights and Fundamental Boundaries: Common Standards and Conflicting Values in the Protection of Human Rights in European Space’, in R. Kastoryano (ed.) An Identity for Europe, The Relevance of Multiculturalism in EU Construction (London: Palgrave Macmillan, 2009).

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a uniform mechanism and view of protection across diverse participating states. This illustrates the first of three particular variables, under the ECHR system, in considering whether or not a wide or narrow margin ought to apply. This first variable is diversity, i.e. the extent to which participating states diverge or converge in their application of particular fundamental rights.8 Significant interstate divergence around a particular practice (e.g. the regulation of incest9 or the voting rights of prisoners10) may suggest fundamental moral or structural differences between states, such that a wide margin of discretion ought to be afforded to national authorities. Conversely, a state is less likely to be able to appeal to the need for diverse application of the Convention where it is a lonely outlier. Such an approach, while often criticised as descending into an arbitrary counting exercise,11 carries the advantage of allowing the Convention to adapt to changing national practices (such as the increasing recognition of same-sex relationships, which has made their lack of recognition in some states more difficult to justify in light of the Convention’s discrimination provisions).12 A second variable is the nature of the right to be protected. Clearly, certain categories of rights, such as those relating to torture and forced servitude, carry little margin and cannot be objectively justified.13 In broader terms, however, the Court has tended to distinguish between matters that are seen as relating to the ‘core’ of the Convention’s mission and those that lie outside.14 In the latter case, measures that concern general economic and social strategy, such as environmental policy, planning or housing, have been treated with a wide margin.15 On the other side of the coin, matters relating to the core objectives of the Convention, i.e. the protection of human dignity and the promotion of the ideals necessary for a democratic society, are given much closer scrutiny. Examples in this regard are the close relationship between the 8 9 10 11

12

13

14 15

See e.g. Case No. 30566/04 S & Marper v UK; Case No. 25579/05 A, B & C v Ireland. Case No. 43547/08 Stuebing v Germany. Case No. 74025/01 Hirst v UK (No. 2). P. Thielboerger, ‘Judicial Passivism at the European Court of Human Rights’ (2012) 19 Maastricht Journal of European & Comparative Law 3, 346–347. See R. George, ‘Civil Relationships, Sexual Orientation and Family Life’ (2014) 73 Cambridge Law Journal 2. Although see J. Callewaert, ‘Is there a Margin of Appreciation in the Application of Articles 2, 3 and 4 of the Convention?’ (1998) 19 Human Rights Law Journal 6. See e.g. Case No. 2346/02 Pretty v UK, at 65. See e.g. Case No. 9310/81 Powell & Rayner v UK; Case No. 20348/92 Buckley v UK; Case No. 66746/01 Connors v UK.

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protection of minorities and political democracy, as well as the importance of free political opinion in ensuring the functioning of the democratic process.16 States restricting the rights of ethnic groups or censoring the flow of information are likely to face a particularly high burden of justification. A third variable may be the most interesting for the purposes of a procedural approach (and the least obvious and most contested within the Court’s jurisprudence).17 This is that the margin of appreciation given to states to justify restrictions on Convention rights may vary depending on the process through which rights have been restricted. This begins with the requirement that restrictions of rights under the Convention must ordinarily be ‘prescribed by law’. It also pertains, however, to the level of consideration given to FR considerations when those laws were established. The Court has held, for example, that the extent of the state’s margin of appreciation depends on the quality of the decision-making process,18 restricting the margin in cases where that process has been restricted or where the rights of minorities or the impact on FR in general was not deliberated legislatively.19 Such an approach can be related back to the ‘better placed’ test discussed above: arguing that states may be ‘better placed’ to balance Convention rights with other objectives assumes that such balancing is actually taking place at the national level. It may make sense to restrict the national margin where it can be demonstrated that national ‘balancing’ was defunct or did not take place at all. In simple terms, and in keeping with the procedural assumptions of Chapter 1, stronger judicial review is more likely to be justified where political institutions have failed in their own rights responsibilities. Taken together, these variables therefore try to determine the question (laid down in Handyside) of who is ‘better placed’ to secure protection by considering the relative capacities of institutions as well as the differences between national contexts. The key to the doctrine is not therefore a formal separation of responsibilities but a case-by-case assessment of how one can better secure the objects and purposes of the Convention. In this sense, the MOA is a doctrine highly relevant to the ‘governance’ of 16

17

18 19

Case No. 19392/92 United Communist Party of Turkey v Turkey; Case No. 41340/98 Refah Partisi and Others v Turkey. See P. Popelier and C. Van de Heyning, ‘Procedural Rationality: Giving Teeth to the Proportionality Analysis’ (2013) 9 European Constitutional Law Review. Case No. 13716/02 Sukhovetskyy v Ukraine, at 65–68. See Hirst (No. 2), n. 10 above.

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EU FR: it is fundamentally a doctrine that attempts to share FR responsibilities in order to secure their effective realisation.

2.3 Does the Court of Justice Exercise a Margin of Appreciation? The Vertical Dimension To what extent does the CJEU follow such an approach when applying EU fundamental rights? To unpack this question, a first distinction is necessary. This distinction emerges from the distinctive institutional setting in which the Court of Justice sits. Whereas the Strasbourg Court lacks an advanced legislative body, able to elaborate rights through secondary law, the EU carries extensive legislative institutions. In this sense, what Strasbourg achieves through the MOA must, in an EU context, be translated into two different MOAs. When analysing the role of the EU Courts in FR, we have to consider the MOA in both its ‘horizontal’ and ‘vertical’ dimensions. Whereas a horizontal MOA concerns the margin of discretion offered by the Court to the EU’s political institutions to define the contours of FR (considered in Section 2.4 ), the vertical MOA concerns the margin of discretion the CJEU offers when enforcing FR ‘vertically’, i.e. in relation to national measures and national Courts. Notably, the EU Charter does not use the language of a margin of appreciation in either senses nor is this language evident in the Court’s case law. That does not mean, however, that no such doctrine exists.20 There are articles of the Charter that speak to the MOA in the sense that they also seek to allow the MSs, a margin of manoeuvre in interpreting and applying Charter rights (or free them from the obligation to do so at all). The three most crucial may be (i) the restrictions on the Charter’s field of application in Article 51; (ii) the possibility to limit Charter rights provided for under Article 52(1); and (iii) the commitment not to undermine the level of protection provided for under other international Treaties or national Constitutions (Articles 52(4) and 53).

2.3.1 The Scope of EU Fundamental Rights Of these, Article 51 is an obvious starting point. In some sense, Article 51 could be seen not just as a variety of, but a substitute for, the MOA 20

See e.g. J. Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (2011) 17 European Law Journal 1, 89–101.

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doctrine. Reflecting fears that the Charter could become a centralising instrument, bringing new-found matters under EU control, the drafting Convention insisted both that the Charter should not affect the existing balance of competences between the EU and its Member States and that it should apply to the Member States ‘only when they are implementing Union law’. This provision already illustrates some of the differences between the Charter and the ECHR system. Whereas under the ECHR, there is a presumption that the Convention should apply to MS action provided that applicants have exhausted domestic remedies, under the Charter, the presumption seems to be the other way around. The Member States should be bound in the FR domain primarily via their national Constitutions unless they are ‘implementing’ Union law and thereby acting as ‘agents’ of the Union.21 There is thus an attempt to separate fields of action. Where EU law in general applies so does the Charter; where it does not, the Charter ought to play a back-seat to national FR obligations.22 As Michael Dougan has put it, ‘the “scope of Union law” therefore marks a fundamental constitutional boundary between the realms of EU public law (on the one side) and domestic public law (on the other)’.23 Clearly, however, things are not so simple. The restriction of EU FR to the Member States’ ‘implementation’ of EU law seems in conflict with the much broader interpretation of the situations in which EU FR will apply that the CJEU has developed in its case law, whereby national derogations from EU provisions also fall within the Charter’s scope,24 or even where Charter application is induced by significant overlap between a matter 21

22

23

24

See Case C-5/88 Wachauf v Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 02609; Case C-413/99 Baumbast & R v Secretary of State for the Home Department (2002) ECR I-07091; Case C-21/10 Károly Nagy v Mezőgazdasági és Vidékfejlesztési Hivatal (2011) ECR I-06769. See e.g. Daniel Thym’s contrast between ‘separation’ and ‘fusion’ theses when considering the relation between FR under national constitutions and the Charter. See D. Thym, ‘Separation versus Fusion – or: How to Accommodate National Autonomy and the Charter? Diverging Visions of the German Constitutional Court and the European Court of Justice’ (2013) 9 European Constitutional Law Review. M. Dougan, ‘Judicial Review of Member State Action under the General Principles and the Charter: Defining the Scope of Union Law’ (2015) 52 Common Market Law Review 1208. See e.g. Case C-260/89 Elliniki Radiophonia Tiléorassi AE (ERT) v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and others (1991) ECR I-02925; Case C-390/12 Pfleger and Others, Judgment of 30 April 2014; Case C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich (2003) ECR I-05659.

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regulated by national and Union law.25 The Charter’s drafting explanations give some credence to this view, emphasising that the MSs are bound by the Charter when acting ‘within the scope of EU law’.26 Which then is it – implementation or scope? This matter was addressed by the Court in its Fransson decision.27 The case concerned criminal action by the Swedish authorities against an individual accused of providing false tax information. The basis for the investigation was general Swedish legislation on tax enforcement. The Court, however, held that such enforcement could also be seen as a national measure giving effect to Directive 2006/112/EC, designed to enforce the EU’s VAT regime. The national and EU legislation did not seem directly related, in that the Swedish legislation at issue was not created to transpose the VAT directive, and thereby was seen by both the Commission and the intervening Member States as an act that was not ‘implementing Union law’. The Court disagreed, sticking closely to its own alternative formulation. That definition of the field of application of the fundamental rights of the European Union is borne out by the explanations relating to Article 51 of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the purpose of interpreting it. According to those explanations, ‘the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law’.28

The problem with the judgment may be less the clear preference for a ‘scope’-related definition than the rather tenuous and arbitrary links that Member State action ‘within the scope’ of EU law could entail. Does any national measure operating in a field in which EU legislation also applies, or any measure giving effect to an EU provision, now have to comply with the Charter, rather than be assessed according to national FR standards?29 The Advocate General for the case suggested in this 25

26

27 28 29

See Case C-555/07 Kücükdeveci (2010) ECR I-00365. See also the discussion in Dougan, supra, n. 23 above, 1221–1226. See the heavy emphasis on the drafting explanations by Members of the Court in other writings e.g. K. Lenaerts, ‘Exploring the Limits of the EU Charter of Fundamental Rights’ (2013) 8 European Constitutional Law Review 3, 378. Case C-617/10 Akerberg Fransson, Judgment of 26 February 2013. Ibid., at 20. See i.a. the concerns raised in L. Besselink and J.H. Reestman, ‘After Akerberg Fransson and Melloni: Editorial’ (2013) 9 European Constitutional Law Review 2, 172. See for a contrasting view, Dougan, n. 23 above.

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regard a more cautious approach – the EU had to adduce a ‘specific interest’ in an act of national law for the Charter to apply.30 This limitation was rejected. It is difficult to avoid in this sense the conclusion that Member States can have little confidence in using Article 51 to shield largely ‘internal’ national law from the Charter’s application. The CJEU has rather quickly felt the consequences of its ambitious ruling in terms of its reception by national Courts. In simple terms, national Courts may simply not accept or implement its reading of the scope of application of EU FR, or its use of the Charter’s explanations to override what appears to be the Charter’s plain textual meaning (an ordering in conflict with normal Treaty interpretation rules).31 This resistance speaks to the connection of EU governance research discussed in the introduction to ‘normative dispersal’, i.e. the fragmentation of normative authority in multi-level legal orders. An early example is the German Federal Constitutional Court’s (FCC) counter-terrorism database case.32 In this example, by establishing a central database for counter-terrorism operations, Germany too could be seen as acting within the scope of EU legislation on police cooperation and data sharing in the fight against terror. This was firmly dismissed, however, by the FCC, which explicitly adopted the original language of the Charter in assessing whether the German act establishing the database constituted an ‘implementation’ of EU law. In their view, Fransson ‘must not be understood in a way which would have to be qualified as an obvious ultra vires act’, emphasising in its press release that Fransson was ‘based on the distinctive features of the law on VAT and express(ed) no general view’.33 This reaction by the FCC speaks to many potential concerns with the Fransson ruling. First, as will be further discussed through the Melloni judgment below, the FCC’s reaction may reflect a concern that the application of the Charter coupled with the primacy of FR standards drawn from EU law may dilute the standard of protection developed by the FCC through decades of jurisprudence. Second, and relatedly, it may reflect a concern that the Charter may allow the CJEU to transform itself (as it has done in other areas of EU law) from primarily a watchdog of the EU institutions in the FR field to a supervisor of national constitutional orders, overriding the authority of national constitutional Courts in the 30 31 32 33

Opinion of AG Cruz Vilallon in Fransson at 40. See e.g. Article 31 of the Vienna Convention on the Law of Treaties. Case 1 BvR 1215/07, Decision of the 24 April 2013. See Thym, n. 22 above.

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process. If the development of an EU MOA depends in part on robust limitations on the Charter’s scope, the FCC seems to have little confidence that such limitations exist in practice. This concern with the Charter’s ‘scope’ limitations is likely to vary between Member States (with the protection of the Charter thereby also varying depending on the reaction of national Courts to the Fransson ruling). Other high Courts, e.g. the UK Supreme Court, have embraced a broad interpretation of the Charter’s field of application, given that this may enhance their judicial powers to set aside national legislation on FR grounds (a power that the German FCC holds in any case).34 In simple terms, the level of contestation of this aspect of the Charter may be highly uneven (leading to a potentially uneven application between national orders of the Charter itself). The CJEU is unlikely to be totally deaf to this possibility of national rebellion. In other areas of its case law (such as in the field of EU citizenship), the Court has followed a practice of announcing radical doctrinal innovations only to refine and limit them in later jurisprudence.35 Fransson may be such an example. In Siragusa, the Court argued that acting within the scope of EU law required a ‘certain degree of connection above and beyond the matter being closely related or one of those matters having an indirect impact upon the other’.36 The fact that national legislation could have an indirect effect on a system established by EU law was not a sufficient connection. The Court then enumerated some criteria,37 repeated in more recent case law,38 to define this connection, i.e. whether legislation is intended to implement a provision of EU law or relates to objectives other than those covered by EU law, for Courts to apply when considering the Charter’s applicability. As a result, there was an insufficient connection between the (in this case) national landscape conservation rules and EU environmental policy for the Charter to be applicable.39 34

35

36 37

38

39

See e.g. the Supreme Court’s ruling in The Rugby Football Union v Consolidated Information Services Limited (see Thym, n. 22 above). See e.g. the evolution of the Court’s position on reverse discrimination from Case C-34/09 Ruiz Zambrano, (2011) ECR I-01177 to Case C-256/11 Dereci (2011) ECR I-00000. Case C-206/13 Siragusa v Regione Sicilia (2011) ECR I-11315, Judgment of 6 March 2014. Ibid., at 25. These criteria interestingly, as Michael Dougan has pointed out, involve a resurrection via the Iida judgment, of earlier case law and particularly the Annibaldi judgment of the Court. See Case C-40/11 Ilda, Judgment of 8 November 2012. Case C-198/13 Julian Hernandez (1997) ECR I-07493; Case C-650/13 Delvigne, Judgment of 6 October 2015. See also Case C-309/96 Annibaldi (1997) ECR I-07493.

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Siragusa goes some way to defining and placing meaningful limits on the Court’s Fransson ruling.40 It remains, however, problematic given our starting assumptions about the role of EU FR. In the first place, the exact limits on the scope of the Charter remain imprecise to say the least. There may be problems with the binary approach to the Charter’s application that Fransson suggests (problems that suggest, as will be taken up in the final part of this chapter, a more nuanced, or ‘sliding scale’ approach to the Charter’s application). Secondly, ‘scope’ says nothing about situations where EU law and the Charter may apply but where nevertheless states ought to be given more freedom and leeway in the Charter’s concrete realisation. This is the true test of whether the EU Courts are able to deal with ‘legitimate diversity’ in the protection of EU FR: how does it act when the Charter does apply? Article 51 provides some scope for Member States to act free of Charter surveillance; at the same time, its binary distinction suggests that where an act does fall within the Charter’s scope, FR review ought to be conducted exclusively according to EU standards. In this sense, Article 51 in no way obviates the need for EU FR to engage with the issues of normative dispersal and contestation raised by the MOA doctrine.

2.3.2 Limitations on Charter Rights and the Diversity Variable Clearly, Charter rights are not intended to be absolute. The possibility of limiting EU FR according to an open-ended list of public policy justifications has long been accepted in EU FR jurisprudence. As with other aspects of the Court’s case law, the more controversial question relating to limiting Charter rights is the requirement that limitations are proportional. To meet the proportionality test, MSs are required to demonstrate that their restrictions pursue a legitimate aim and are suitable and necessary to achieve it.41 The use of proportionality engages more closely with the different categories of the MOA doctrine outlined in Section 2.2 above. As discussed there, the depth of proportionality analysis under the ECHR system may vary depending on different factors, such as the extent of disagreement between states, the nature of affected rights and the 40

41

See the comments of Benedikt Pirker on the European Law Blog. Available at: http://eu ropeanlawblog.eu/?p=2253. See Case C-353/99 P Council v Hautala (2001) ECR I-9565; Case C-353/01 P Olli Mattila v Council & Commission (2004) ECR I-1073.

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process by which rights have been limited. To what extent does the Court follow a similar approach, either explicitly or implicitly? The first factor here (among the three ‘variables’ influencing the ECtHR’s approach) is diversity. The EU Courts are not unaware of the need to accommodate political and moral diversity in their rulings. A good example, from a case that is far from a model one from an MOA perspective, is the statement of AG Bot in Melloni. For Bot: Fundamental rights . . . and the level of protection to be afforded to them reflects the choice of a society as regards the proper balance to be achieved between the interests of the individual and those of the Community to which they belong. That determination is closely linked to assessments which are specific to the legal order concerned, relating particularly to the social, cultural and historical contexts of that order, and cannot therefore be transposed automatically to other contexts.42

We see here a clear recognition that defining the scope of FR goes to the very core of the project of political and social self-determination.43 There is simply no escaping the fact that the question of which FR to protect, who should be protected by them and how they can be balanced with other policies are ethical questions that, as Floris de Witte has put it, ‘engage with the normative question that underlies the polity: in what kind of society do I want to live?’44 The ECtHR has often dealt with this diversity dilemma by varying its level of review depending on the levels of disagreement on rights found in particular Member States. The adoption of a comparative approach can also be seen in the CJEU’s early case law, particularly in cases dealing with a related issue: the use of fundamental rights to derogate from the Treaty’s market freedoms. In AM & S, for example, comparative surveys of the constitutional traditions of Member States were used as a basis to determine whether or not a particular right fell within the basket of general principles the Court was bound to respect.45 The difficulty with this approach was how to measure the relevant threshold. Adopting a minimal approach – whereby 42 43

44

45

Opinion in Melloni at 9. It is precisely for this reason that political theorists such as Richard Bellamy defend a more political vision of constitutionalism. See R. Bellamy, ‘Constitutional Rights and the Limits of Judicial Review’ in R. Bellamy (ed.) Political Constitutionalism (Cambridge: Cambridge University Press, 2007), 15–51. F. de Witte, ‘Sex, Drugs & EU Law: The Recognition of Moral and Ethical Diversity in EU Law’ (2013) 50 Common Market Law Review 1548. Case C-155/79 Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission (1982) ECR 1575.

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only rights accepted by all Member States were accepted as limitations to EU law – would seem to set an impossibly high bar; adopting a maximal approach, on the other hand, ran the risk of rights protected in one Member State being ‘foisted’ on others.46 The Court’s 2004 Omega ruling signalled, however, a different approach. In Omega, the Court was asked – on a reference from the Bonn District Court – whether human dignity (the cornerstone of the post-war German constitutional order) could be relied upon to restrict the freedom to provide services, even in circumstances where many Member States did not conceptualise human dignity as a subjective right.47 The Court answered in the affirmative, largely dismissing the argument that this would involve privileging one national constitutional order above others. It was, in the Court’s view, ‘not indispensable in that respect for the restrictive measure issued by the authorities of a Member State to correspond to a conception shared by all Member States as regards the precise way in which the fundamental right or legitimate interest in question is to be protected’.48 In other words, the Court seems to accept in its ruling that the precise meaning and scope of fundamental rights – and the extent to which their restriction is proportional – can vary from one Member State to another without the idea of an autonomous EU-level protection of FR being undermined. Many aspects of Omega have been adopted in more recent case law. In Sayn Wittgenstein, an Austrian constitutional norm prohibiting the use of noble titles was challenged as a restriction on the free movement of persons. Referring to the Lisbon Treaty’s Article 4(2) – on respect for national constitutional identity49 – the Court followed Omega in arguing that Austria’s restriction was a legitimate expression of the right to equal treatment, a principle found in the EU legal order.50 Austria’s unique reading of this principle as applied to titles, a reading contrary to many other national contexts, did not preclude the validity of its restriction (a public policy justification that ‘may vary from one Member State to another’).51 46 47 48 49

50

51

See discussion in Besselink, n. 29 above. Case C-36/02 Omega Spielhallen und Automatenaufstellungs GmbH (2003) ECR I-9609. Omega at 37. On the significance of this article, see A. Von Bogdandy and S. Schill, ‘Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty’ (2011) 48 Common Market Law Review 5. Case C-208/09 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien (2010) ECR I-13693, at 89. Ibid., at 86.

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Crucially, the Court also, in Sayn Wittgenstein, lowered its normally strict proportionality review. It did not discuss, for example, whether less restrictive measures than banning the registration of the applicant’s name could have been used by Austria to achieve the objective of constitutional equality.52 There seems here not only a recognition that constitutional peculiarities unique to one state may limit the application of free movement rules but also that such peculiarities may justify a more discretionary standard of review (an idea akin to Strasbourg’s use of the MOA doctrine). The two examples above concern the use of FR to restrict free movement rules. Crucially, they do not concern the treatment by the Court of national measures restricting EU fundamental rights themselves. In such cases, there is some indication of the Court adopting a stricter and less ‘diversity preserving’ approach. In Brüstle, a German patent on a treatment involving the use of stem cells to treat Parkinson’s disease was challenged by Greenpeace. The German Court referred to the CJEU the question of whether this patent violated the commitment in Article 6(2)(c) of Directive 98/44/EC, prohibiting the use of human embryos for commercial purposes. Clearly once again, the definition of what constitutes an embryo is a contested and sensitive question, which may vary between national contexts. In addressing this question, the Court argued that the embryo must be seen ‘as an autonomous concept of EU law which must be interpreted in a uniform manner throughout the territory of the Union’.53 Invoking human dignity as a fundamental right protected under the EU legal order, and interpreting the Directive’s provisions, the Court argued that the concept of human embryo must be understood ‘in a wide sense’,54 and that any technique (such as the one at issue) that involved the destruction of embryos would be un-patentable.55 As Chalmers et al. have pointed out, both public opinion and existing legal frameworks on stem cell research vary significantly between EU Member States.56 While a MOA doctrine might encourage the EU Courts to be more wary of declaring the need for a ‘uniform’ conception of the embryo, and to leave this definition to national Courts, the Court here both boldly steps into the middle of a moral minefield and displays little 52 53 54 55 56

Ibid., at 92 and 93. Case C-34/10 Oliver Brüstle v Greenpeace e.V. (2011) ECR I-9849, at 26. Ibid., at 34. Ibid., at 49. Chalmers et al. at 270, quoting G. Gaskell, S. Stares and A. Pottage, ‘How Europe’s Ethical Divide Looms over Biotech Law and Patents’ (2012) 30 Nature Technology 12.

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sensitivity to diverse interpretations of ‘human dignity’ when applied to national biotechnology.57 Comparing Omega and Brüstle, it is difficult to identify a consistent line of reasoning in considering whether the Court will utilise a margin of discretion in the context of national diversity. When reviewing national measures in Omega, diversity in the precise application of a right such as ‘human dignity’ is seen as an acceptable reason to limit EU objectives; when reviewing a derogation from the right to human dignity in Brüstle, however, a very particular reading of human dignity is privileged and generalised across different national contexts.58 As is often the case in EU jurisprudence, national differences are seen as less relevant in circumstances where EU legislature measures are themselves being invoked (a point discussed further in relation to the horizontal MOA below). ‘Diversity’ in national approaches to FR seems to be altering the Court’s approach to invoking EU FR, but not yet in a uniform way, or in a way that conforms to the normative concerns underlying the MOA doctrine.

2.3.3 The Nature of Rights Variable The second factor that, under the ECtHR’s MOA doctrine, may affect the nature of proportionality review is the nature of the rights being limited. We are referring here to the distinction made by the ECtHR between the ‘core’ of the Convention’s mission and more peripheral matters, where lighter judicial review may apply. Interestingly, there is some evidence that the advent of a binding Charter has led to the CJEU also adopting such language. An example is the case of ZZ: a 2013 judgment in which the Court was asked to interpret the procedures of the UK’s Special Immigration Appeals Commission (SIAC) in light of Directive 2004/38/EC.59 Under the UK system, an individual could be subject to an expulsion decision from the United Kingdom, even in circumstances where the grounds for expulsion were not revealed. This expulsion was justified legislatively by the need to ensure that highly sensitive information, the disclosure of which may damage public security, was not revealed to terrorist organisations. 57 58

59

See also de Witte, supra, 1559–1562. Another approach is to simply side-step difficult moral questions: an accusation often levelled at the Court too. See e.g. Case C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others (1991) ECR I-4685. Case C-300/11 ZZ v Secretary of State for the Home Department, Judgment of 12 December 2012.

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In addressing the delicate balance between a clear procedural right of EU law (i.e. the right to defence) and important security considerations, the Court argued that Article 47 of the Charter (on effective judicial protection) could be limited but that any limitation must respect the ‘essence’ of this right.60 They argued that non-disclosure of the grounds for an expulsion decision would always infringe this essence. Beyond this, however, it was for the national Court to consider how the public interest in security and the rights of the applicant ought to be balanced (for example, in considering whether the substantive evidence against the applicant also ought to be disclosed).61 While the Court’s relatively strict approach in ZZ could be seen as reflecting the fact that a core piece of EU legislation was being infringed, in a further case reflecting this approach, Karner, the Court was less strict. When reviewing the compatibility of Austrian advertising restrictions on the free movement of goods, the Court made a clear distinction, again reflecting the ‘essence of rights’ idea between commercial and noncommercial expression.62 When the exercise of the freedom does not contribute to a discussion of public interest, and in addition, arises in a context in which the Member States have a certain amount of discretion, review is limited to an examination of the reasonableness and proportionality of the interference.63

The CJEU has also used the idea of the ‘essence’ of rights when reviewing EU legislation.64 When reviewing the Data Retention Directive, the Court argued that the retention of data provided for under the Directive does not per se breach the essence of privacy rights protected under the Charter because the retention of information on the content of communications was prohibited.65 At the same time, they argued that the interference in such rights via legislation was insufficiently circumscribed. The Court followed by proscribing a number of limitations necessary for data retention to be proportionate, such as a more precise definition of the ‘serious crimes’ for which data access could be permitted,66 the need for 60 61 62

63 64

65 66

Ibid., at 51. Ibid., at 67. This distinction, as the Court noted, is also reflected in ECtHR case law. See e.g. Case No. 10572/83 Mark Intern Verlag GMbH and Beermann v Germany. Case C-71/02 Karner (2004) ECR I-3024 at 51. Joined Cases 293/12 and 594/12 Digital Rights Ireland and Seitlinger and Others v Minister for Communications, Marine and Natural Resources (2014) ECR I-238. Ibid., at 39. Ibid., at 58.

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objective criteria determining how long data can be retained67 and the need for safeguards for the risk of abuse, including the risk that data would be transferred outside of the Union unlawfully.68 In its later Schrems judgment, the Court again repeated the notion that mass surveillance infringed the ‘essence’ of privacy rights.69 While the Digital Rights Ireland example concerned the review of EU legislation (and therefore will be returned to in Section 2.4 ), it may give an early illustration of some of the strengths and weaknesses of an emerging ‘essence of rights’ doctrine from the perspective of a developing EU margin of appreciation. On the one hand, this remains a highly unspecified doctrine. While the ECHR version is tied to a specific view of the object and purposes of the Convention as a whole, it is unclear in the Court’s case law where the boundaries between the Charter’s ‘core’ and its ‘periphery’ lie (and which normative criteria should orient this distinction).70 This relates to an old discussion in legal theory. While difficult questions regarding the interpretation of norms may fade away in cases where language is clear (what H.L.A. Hart described as the ‘core’ of legal meaning), the distinction between the core and periphery of a given norm requires a certain moral understanding of the nature and purpose of that norm or even of the legal system as a whole.71 Similarly, unveiling the ‘essence’ of a Charter right must be understood in the light of the objectives that both a specific right and the Charter as a whole are seeking to advance. Digital Ireland may be a good example of the failure of the Court to address this aspect of the essence of rights doctrine. The Court does not explain or justify its choice over which elements of the data retention directive affect the ‘essence’ of individual rights and which do not. At the same time, its finding that certain elements of the directive do not affect the ‘essence’ seems to have no bearing on the way in which its FR review is exercised. While the Court gave a clear signal that data retention did not per se disturb the essence either of the Charter as a whole or its 67 68 69

70

71

Ibid., at 64. Ibid., at 68. Case C-362/14 Maximilian Schrems v Data Protection Commissioner, Judgment of 6 October 2015 at 94. There is once again a relevant distinction here between the EU and ECHR systems. Whereas the nature of rights variable under the ECHR system is often used to distinguish between rights, the CJEU largely discusses the essence of rights in relation to the normative core of specific rights. I am grateful to the GOLEM group of the LSE for discussion on this question. See L. Fuller, ‘Positivism and Fidelity to Law – A Reply to Professor Hart’ (1958) 71 Harvard Law Review 4.

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privacy rights, it also confusingly argued that its review of the legislature’s discretion would be ‘strict’, listing a litany of detailed objections.72 In this sense, the Court seems to develop elements of the MOA without fully following through on the logical consequences of such a doctrine (which is to alter the way in which review is conducted). On the other hand, the essence of rights doctrine seems to allow some margin of manoeuvre to the national and EU legislatures provided that minimal standards of FR protection are met. Digital Rights Ireland’s detailed proportionality analysis, coupled with its acceptance of legitimate reasons to restrict FR, may provide (in theory at least) an opportunity for ‘constitutional dialogue’ over rights protection between both national and EU Courts and between the EU Courts and legislatures.73 This possibility of dialogue is an important element in considering the final ‘procedural’ element of an MOA doctrine in EU FR law.

2.3.4 The Procedural Variable Constitutional dialogue, as understood in comparative public law, can be seen in one of two ways. Its first element is ‘vertical’, i.e. towards national Courts. Digital Rights Ireland was the tip of an iceberg of national objections to the operation of the EU’s data retention regime. As highlighted by Chris Jones, at least eight national Constitutional Courts have indicated privacy concerns in relation to the application of the Directive in national law.74 The German implementing legislation, for example, has been blocked by the FCC since March 2010, with the Ministry of Justice only able to muster sufficient support for a replacement in 2015. The Court’s ruling could in this sense be seen as a response to these concerns: a reflection of the bare fact than an EU FR policy must be at least partially embedded in national constitutional orders to survive. Constitutional dialogue’s second element is ‘horizontal’, i.e. towards EU and national legislatures. Here too, the Digital Rights Ireland ruling is instructive. The judgment (particularly its detailed guidance on proportionality) could be seen as part of a dialogue with both national and EU legislatures over how the Directive should be amended. In this sense, the 72 73

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Digital Ireland at 48. M. de Visser, ‘National Constitutional Courts, the Court of Justice and the Protection of Fundamental Rights in a post-Charter Landscape’ (2013) 14 Human Rights Review; M. Dawson, ‘Constitutional Dialogue between Courts and Legislatures in the European Union: Prospects and Limits’ (2013) 19 European Public Law 2. ‘National Legal Challenges to the Data Retention Directive’, available at: http://eulawana lysis.blogspot.de/2014/04/national-legal-challenges-to-data.html.

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case could be seen in the context of the ECtHR’s willingness to alter the intensity or nature of review with an eye to the political process through which laws affecting fundamental rights have been formed (and may be reformed in the future). It seems likely that the Court in Digital Rights Ireland was well aware of the political context within which its ruling was made. The judgment ought to be understood in its legislative context. In derogating from the broader principles on confidentiality set out in the EU’s E-Privacy Directive, the annulment of the Retention Directive now leaves national authorities with the task of filling the legislative void in establishing legislation for data retention at the national level. At the same time, the EU’s broader data protection regime was being re-negotiated alongside the Court’s deliberations.75 In this sense, the Court could invalidate the Directive in the knowledge that the legislative void thereby created could be filled by national or EU legislatures, able to learn from and adapt to the ‘undue’ restrictions pointed out in the CJEU’s decision. By distinguishing between the essence of rights (which cannot be breached) and other elements (which may be breached, but only where justified and proportionate), some guidance is given to legislatures over how an alternative to the current regime, more respectful of FR provisions, could be built. This possibility of engaging in constitutional dialogue is heavily conditional upon the political circumstances. In other cases of EU ‘constitutional dialogue’, the review of EU measures may not allow the same opportunities for the legislature to craft a legislative response (e.g. because an EU competence to legislate is lacking, a problem did not pertain in the data protection example).76 This political and procedural element to the MOA doctrine will be returned to in Section 2.5. For now though, these examples, as well as the Omega and SaynWittgenstein cases, illustrate the seeds of an implicit (if still rather incoherent) ‘margin of appreciation’ in the application of EU FR. While the examples above clearly illustrate a dogged lack of consistency in how these terms apply, the notion of an ‘essence’ of EU FR could be one way in which the EU Courts are drawing dividing lines between transnational and national human rights responsibilities. 75

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See S. Peers, ‘Reforming EU Data Protection Law: The Council Takes Its First Baby Steps’, available at: http://eulawanalysis.blogspot.de/2014/06/reforming-eu-data-protection-law .html. See Dawson, n. 73 above, 386–387.

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2.3.5 Level(s) of Protection A final element of the Charter that may allow a ‘vertical’ MOA, or degree of deference, to national Courts and legislatures lies in Article 53. This attempts to define the standard of protection offered via the Charter. This provision should be read in conjunction with Article 52(4), which states that Charter rights derived from national constitutional frameworks ‘shall be interpreted in harmony with those traditions’. These articles speak to one possible way of interpreting the relationship between the Charter and national protection of FR, which is again inspired by the ECHR example. This is to see the Charter as a minimum standard of protection, which may be exceeded but not undergone.77 The Charter allows the Member States to retain their level of existing FR protection at the time the Charter was adopted while also acting as a safeguard against ‘backsliding’ from common standards. This is one way, for example, to read the ZZ case – as an instruction to meet basic requirements when establishing restricted tribunals. Beyond these minimum standards, Member States carry a substantive margin of manoeuvre that is to be overseen by national Courts. In the case of ZZ, national Courts may continue to balance security interests with the right of defence by withholding sensitive evidence from the parties provided that a judicial appeal body is satisfied of the necessity of this step (and that the grounds for removal are revealed). Alternatively, nothing in the Court’s approach would prevent a different national Court from viewing the same withholding of evidence as contrary to the national right to effective and fair judicial protection. A minimum standards approach may in this sense allow legitimate diversity (within substantive and procedural confines) across different states.78 This approach, however, has been placed in some doubt by more recent case law. In Melloni, the CJEU seemed to take the opposite approach, upholding lower standards of FR protection provided for under EU legislation in the face of national standards that were higher.79 The problem in Melloni concerned the exceptions granted to participating states to refuse extradition requests under the European 77

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See also the parallels in other international FR instruments, e.g. Art. 53 ECHR and Art. 5(2) ICCPR. It may also oblige Member States to retain a higher level of FR protection under EU law than concomitant ECHR obligations. See Case C-465/07 Elgafaji v Staatssecretaris van Justitie (2009) ECR I-00921. Case C-399/11 Stefano Melloni v Ministerio Fiscal (2013) ECR I-0000.

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Arrest Warrant. Those exceptions do not include making extradition conditional upon individuals being tried in person, where those individuals do not have the possibility of further appeal. This requirement was, however, embedded in Spanish constitutional practice. As a consequence, the Spanish Constitutional Tribunal, in its first ever reference to the CJEU, asked whether upholding domestic constitutional standards in contradiction to EU legislation would be permissible under Article 53 of the Charter. According to the Court, Article 4 of the Framework Decision represented a harmonisation of the accepted grounds for refusal. As such, an interpretation of the Charter that would allow Member States to depart from such harmonised legislation in deference to national constitutional rights would hamper the effectiveness of, and violate the primacy of, EU law. Legislative harmonisation of FR standards would seem in this sense to rule out conflicting higher standards being applied at the national level. How are we to see this judgment from the perspective of an MOA? Firstly, if the part of the added value of EU FR could lie in their ability to safeguard a minimum level of protection while still encouraging Member States to go beyond that level, Melloni seems to sacrifice this approach in the name of guarding the supremacy of EU law.80 The Court’s approach in simple terms seems driven by an instrumental logic that is difficult to justify via the MOA doctrine. The question it seeks to address through Melloni is not ‘who is better placed’ to protect FR, but rather which outcome can best ensure the effectiveness and coherence of the EU legal order. Rather than using FR as a standard by which to judge the validity of EU law, or as a guide to the division of responsibilities between the national and EU levels, FR are used in Melloni largely as a shield against national legal orders. Secondly, Melloni illustrates how different vertical and horizontal approaches to the MOA doctrine can conflict and clash and, in doing so, impede the ability of the EU Courts to deal with ‘legitimate diversity’ in the application of FR norms. One – the horizontal margin – is a margin of discretion left to the EU legislature, i.e. over how to balance the rights 80

See L. Besselink, ‘The ECJ as the European “Supreme Court”: Setting Aside Citizens’ Rights for EU Law Supremacy’, Verfassungsblog, 18 August 2014, available at: www .verfassungsblog.de/en/ecj-european-supreme-court-setting-aside-citizens-rights-eu-law -supremacy/#.VJGjf3v9aMs; A. Torres Perez, ‘Constitutional Dialogue on the European Arrest Warrant: The Spanish Constitutional Court Knocking on Luxembourg’s Door’ (2012) 8 European Constitutional Law Review.

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to defence and a fair trial with the facilitation of mutual recognition and cooperation in criminal matters. The other – the vertical margin – is a margin afforded to national Courts to determine the level of protection afforded to FR protected at both national and EU levels. Melloni illustrates well the capacity of these margins to work against each other. Deferring to the standards of national Constitutional law would have meant unravelling the political compromise over recognised grounds of refusal embedded in the EAW decision.81 Similarly, the outcome the Court chose involved recognising EU legislative competence to balance FR and other concerns while constraining the ability of the Spanish Constitutional Tribunal to carry out its national constitutional mandate.82 By applying one margin, the other was necessarily reduced. A more recent example once again shows the capacity of these horizontal and vertical margins to clash but with an opposite outcome. In its Schrems decision, the CJEU was asked to rule on the validity of the Commission’s ‘Safe Harbour’ decision, allowing the transfer of data to third countries observing an ‘adequate level of protection’.83 The Commission’s decision to allow data transfer to the United States was challenged by an Austrian Facebook user, who complained to the Irish data protection authority that transfers of data to the United States violated the EU’s data protection regime and a number of privacy rights protected under the Charter. Here, we again see the Melloni quandary in action. Horizontal deference would imply respecting the discretionary authority of the Commission to make an EU-wide decision over whether particular third countries carry an adequate level of data protection. On the other hand, vertical deference would imply taking seriously the objections of national data protection authorities (DPAs), who should be entitled to consider whether structural deficiencies in third states leave the privacy rights of their citizens in danger. Choosing one type of deference over the other could carry significant external effects: validating the Commission decision could have resulted in a significant gap emerging in judicial protection, making redundant the role of national DPAs in monitoring transfers of data; 81 82

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See the Court’s emphasis on this point in the judgment. Melloni, n. 238 above, 41–43. This story could also be told in reference to the interaction of other national Courts with Luxembourg on the arrest warrant. See on this, O. Pollicino, ‘European Arrest Warrant and Constitutional Principles of the Member States: A Case-law Based Outline in an Attempt to Strike the Right Balance between Legal Systems’ (2009) 9 German Law Journal 10, 1313. See Schrems, n. 69 above.

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invalidating the decision, on the other hand, could lead to a differentiated data protection regime between states, undermining internal market goals in the process. Contra Melloni, the Court’s decision in Schrems suggests a privileging of the MOA’s vertical over its horizontal elements. On the basis that the Safe Harbour agreement violated the essence of the rights to privacy and to effective judicial protection, the Commission’s decision was invalidated. Analysing the Commission’s agreement,84 the Court argued that its failure to delimit the purposes of data transfer, and the lack of administrative or judicial means to erase or remove data, fell short of rights guaranteed under EU law. By limiting the ability of national DPAs to prevent data transfers to inadequate data protection systems in third countries, the Commission’s decision furthermore exceeded the Commission’s own powers.85 While this does not provide national DPAs with the powers to themselves declare an EU decision invalid, it at least requires the possibility for individuals and DPAs to initiate national proceedings capable of engaging the preliminary reference procedure. While these decisions seem to lead to an unavoidable trade-off or even a ‘zero sum’ game between the margin of appreciation’s vertical and horizontal dimensions, the final part of this chapter will argue that the ‘procedural’ approach to the MOA can offer some guidance in how to balance different elements of the MOA doctrine, and in doing so, provide clearer guidance as to which institutions ought to act when enforcing ‘shared’ fundamental rights. Just as the procedural approach assumes that fundamental rights is a shared constitutional responsibility within the institutions of government, so it provides Courts with a role not only in protecting concrete rights but in policing the boundaries between competing normative orders. We must first shift our attention, however, to the second ‘horizontal’ MOA. While the last section has primarily sought to clarify the extent to which the EU Courts display an MOA in their dealings with national Courts and legislatures, this must be complemented by the role of EU Courts in interacting with the EU legislature. As we will see, just as we have often seen an inconsistent ‘one step forward, two steps back’ approach to the MOA in its vertical dimension, we see a similar inconsistent approach at the ‘horizontal’ level. 84 85

Ibid., at 90. Ibid., at 104.

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2.4 Does the Court of Justice Exercise a Margin of Appreciation? The Horizontal Dimension Examining the European Courts ‘horizontal’ margin of appreciation towards the EU legislature involves making important departures from the ECtHR context. While, as discussed above, diversity of national preferences may be used by the Strasbourg Court to warrant a different level of review, the act of examining EU legislation already implies that the diversity question has been to a degree settled. Whereas Strasbourg must, in reviewing national measures, address a multiplicity of legislatures, the ‘horizontal’ interlocutor of the EU Courts is largely a single set of EU institutions (that have already deliberated and agreed a concrete legislative act).

2.4.1 The Nature of Rights Variable The two further MOA variables remain, however, highly relevant. As discussed already in the context of Digital Rights Ireland, it is not unusual for the Court to insist upon strict standards of review in circumstances where particularly essential fundamental rights are deemed to be at stake, or where a matter goes to the heart of a particular right. This is one way of reading the CJEU’s famous Kadi rulings and its more general case law on terrorist sanctions.86 Whereas much of the analysis of this case law has focused on the Court’s robust defence of the ‘external primacy’ of EU law, even against provisions implementing the UN Charter, one should also keep in mind the Court’s repeated insistence that particularly important rights, such as the rights of defence and effective judicial protection, ought to be subjected to intensive judicial scrutiny and review. This can be seen most closely in Kadi II, the successor to the first judgment, in which the Commission, Council and the United Kingdom sought to overturn a General Court ruling questioning the validity of new terrorist sanctions measures. In its appeal, the Council and Commission argued that the General Court had erred in law by favouring heightened judicial scrutiny of sanctioning measures.87 Rejecting this approach, and in doing so rejecting also the opinion of its Advocate-General, the CJ 86

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On that case law, see C. Eckes, Counter-Terrorist Policies and Fundamental Rights: The Case of Individual Sanctions (Oxford: Oxford University Press, 2009). Joined Cases C584/10 P, C593/10 P and C595/10 P, UK & Commission v Kadi (2013) ECR I-0000 at 74.

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insisted upon full review of the implementing regulation, going even further than the General Court in assessing in detail the validity of each reason provided by the UN Sanctions Committee for including Mr Kadi in its sanctioning list. Relying again on the notion of a fundamental essence of particular rights, the CJEU argued that: The essence of effective judicial protection must be that it should enable the person concerned to obtain a declaration from a court, by means of a judgment ordering annulment whereby the contested measure is retroactively erased from the legal order.88

While the UN system had undergone some reforms since the initial Kadi judgment, including the appointment of an independent Ombudsperson, this did not meet the necessary standard of Article 47 of the Charter (which required judicial, and not merely administrative, redress). The Court was particularly dismissive of the Council and Commission’s reliance on reasons based on evidence not made available to the Court.89 In this sense, the Kadi rulings could be seen as a strong defence both of the centrality of judicial protection as a key part of the ‘essence’ of EU fundamental rights and of the publicity of documentary evidence as an essential element of that right. What about cases where the ‘nature of rights’ leads to the standard of horizontal review being lowered rather than heightened? Examples in this category may include situations where EU legislation seeks minimal harmonisation of national procedures related to FR standards. One example of this is the Family Reunification Directive, which seeks to provide minimum entitlements to reunification of family members of resident third-country nationals, but which does not preclude the Member States from adopting more generous entitlements. Assessing a challenge to the Directive’s validity brought by the European Parliament in 2006, the CJEU rejected the notion that the Directive’s provisions, such as its age limitations and residence requirements, violated either the right to family life or the rights of the child. As the Court argued: In the final analysis, while the Directive leaves the Member States a margin of appreciation, it is sufficiently wide to enable them to apply the Directive’s rules in a manner consistent with the requirements flowing from the protection of fundamental rights.90 88 89 90

Ibid., at 134. Ibid., at 127. Case C-540/03 European Parliament v Council (2006) ECR I-5769 at 104.

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In essence, the Court argued that the nature of the rights affected by the Directive and the limitations placed on them were such that Member States were neither obliged nor encouraged to violate these rights. It added that any such violation could be addressed in the Directive’s implementation stage through activation of the preliminary reference procedure.91 No attempt was thus made to subject the Directive’s provisions to a strict proportionality review. While this finding has been robustly criticised92 (in that many states would indeed take limitations on reunification as maximal standards), it can be seen as part of a line of cases in which Directives aiming at minimum harmonisation are treated to a lower standard of review or even as falling outside of the scope of the Charter altogether.93 When considered alongside the Digital Rights Ireland example, they demonstrate the gradual establishment of ‘essence of rights’ as being a pillar of mediation between FR review and the competencies of the EU legislature.

2.4.2 The Procedural Variable What about the final procedural variable? To understand that variable, we may benefit from examining one noticeable counterexample to the story told above. In Test-Achats, an EU Directive was indeed annulled by the CJEU on grounds of a violation of FR, in this case the right not be discriminated against on grounds of sex.94 The Directive concerned the principle of equal treatment between men and women in the delivery of goods and services and was based on Article 13 of the EC Treaty. In this case, the place of FR in the Treaties was particularly unique: the Court was dealing with FR not just as general principles of EU law or as derived from the Charter. The Treaties had, by virtue of Article 13, endowed the EU legislature with a special responsibility to elaborate this particular FR.95 91 92

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Ibid., at 106. See R. Lawson, ‘Family Reunification and the Union’s Charter of Fundamental Rights’ (2007) 3 European Constitutional Law Review 2. See also Case C-198/13 Julian Hernandez, supra; Case C-275/06 Promusicae v Telefonica de Espana (2008) ECR I-00271; Case C-400/10 PPU J. McB v LE (2010) ECR I-08965. For a more developed account, see F. de Cecco, ‘Room to Move? Minimum Harmonization and Fundamental Rights’ (2006) 43 Common Market Law Review. Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministers (2011) ECR I-00773. See E. Muir, ‘The Fundamental Rights Implications of EU Legislation: Some Constitutional Challenges’ (2014) 51 Common Market Law Review 223–226.

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As a derogation from the general principle of equal treatment, Article 5(2) of Directive 2004/113 had provided the Member States with the possibility to vary individuals’ insurance premiums and benefits on the basis of sex where the assessment of risks was based on accurate statistical data.96 Nonetheless, the Court argued that the lack of a temporal limitation on this derogation was contrary to both the Charter’s discrimination provisions and the Directive’s ‘object and purpose’.97 The derogation was, therefore, deemed invalid. The Court’s president has defended Test-Achats as an example of ‘process-oriented review’.98 In his view, ‘just as when testing the compatibility of a national measure with EU law, the ECJ also verifies whether there are internal inconsistencies as between secondary EU law and hierarchically superior rules of EU law’.99 The sticking point here may be the intrusive way in which this ‘verification’ is conducted. ‘Processoriented review’, at least according to the procedural understanding of FR review discussed in Section 2.2, would imply an awareness of the political process by which this particular norm had been formed. Relevant factors here would be the fact that the Treaties gave responsibility for elaboration of discrimination rights to the EU legislature, as well as an assessment of the rigor of the political process by which the decision to enact this derogation was made. In this case, there is no indication of the Court doing either of these things. No attempt is made in the judgment either to enquire into the justificatory process of the EU institutions in derogating from the principle of equal treatment or for the Court itself to consider why such a derogation may be justified from an equal treatment perspective. This may have led the Court to consider, for example, the judgment’s practical effects, which were likely to be a significant increase in the premiums of female insurance holders (was this the directive’s ‘object and purpose’)? To this extent, this seems an example of ‘substantive’ rather than ‘process’ review. In other cases, the Court has been more sensitive to procedural issues. In another case cited by Lenaerts, Volker und Markus Scheke, the CJEU was asked to examine a requirement under delegated legislation that recipients of agricultural funding make public their names and addresses. 96 97 98

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Art. 5(2) Directive 2004/113. Test-Achats at 29–32. K. Lenaerts, ‘The European Court of Justice and Process-oriented Review’ (2012) 01 College of Europe Research Papers in Law 13–15. Ibid., at 15.

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While the Court accepted that such a publication requirement was justified in order to re-enforce public confidence in the transparent use of EU funds, it took issue with its proportionality.100 The Court argued that the Commission and Council had not adequately explored in their framework methods of increasing transparency that were less burdensome on privacy rights. The judgment is notable for a rather heavy hint that, for example, time-limited publication of the contact details of aid recipients could be such an example of a proportionate measure.101 As Lenaerts argues, ‘neither the Council nor the Commission had done their preparatory work properly’.102 The judgment could be seen as a use of the proportionality principle to encourage the legislature to properly take into account the FR implications of its decisions when enacting legislative measures. An important element here is the nature of the act through which fundamental rights were restricted. In Volker und Markus Scheke, this was delegated legislation, meaning that the European Parliament had not been involved in the legislation’s formation. Taking a procedural approach to the MOA seriously, this is an important fact. In simple terms, stricter review, including stricter application of the proportionality principle, may be justified where a more restricted range of societal voices and interests have been involved in the process whereby FR have been limited. This may be one way of reading the Court’s case law on institutional balance and limits to executive delegation. In an important recent case, European Parliament v Council, the Parliament challenged an implementing decision in the context of the Schengen Borders Code on the grounds that the decision exceeded the delegation of authority provided for in that legislative act.103 The decision concerned procedures for the disembarkation of refugees intercepted at sea to the third countries. Initially, the Commission proposal on amendments to the Code had sought broad advice from relevant international organisations on an appropriate regime through an informal working group. Having failed to reach consensus in that group, the Commission nevertheless forwarded its own draft to the Council for approval. The Parliament reacted to this by conducting a vote on retracting its delegation of implementing powers: a vote that won a plurality but not the necessary absolute 100 101 102 103

Joined Cases C-92 & 93/09 Volker und Markus Scheke GbR (2010) ECR I-11063, 81–86. Ibid., at 83. Lenaerts, n. 98 above, at 12. Case C-355/10 European Parliament v Council, Judgment of 5 September 2012.

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majority of votes. The EP, therefore, challenged the implementing decision judicially. The CJEU agreed with the Parliament. The disembarkation procedures constituted ‘essential elements’ of the parent act and therefore could not be amended through implementing legislation. The reasons for this were important. Firstly, the Court argued, the relevant rules concerned ‘political choices falling within the responsibilities of the EU legislature’; secondly, the provisions were such that ‘the fundamental rights of persons concerned may be interfered with to such an extent that the involvement of the EU legislature is required’.104 The outcome of the case is unsurprising when considered from a national perspective – in many states it would be commonly understood as a requirement for limitations on FR to be proscribed by legislated law. At the EU level, it seems an extension of the idea that FR infringements require wider – or the fullest possible extent – of public deliberation and scrutiny. An assumption by the Commission of a power to itself harmonise FR standards would have set a dangerous precedent. This seems a recognition, albeit a veiled one, that EU FR policy requires greater parliamentary guidance (and that – following the procedural approach – measures not subject to such guidance require stricter judicial and political control). Finally, the case could also be seen as a potential example of the ‘horizontal’ constitutional dialogue discussed above. A new Commission proposal to replace the annulled decision was later introduced providing fresh procedural guarantees, such as an obligation on Frontex and national authorities to conduct a case-by-case assessment of intercepted refugees, as well as of the human rights situation in third countries, before migrants at sea would be disembarked.105 The procedural requirement enforced via the Court’s judgment – of full parliamentary involvement – in this sense translated into a higher degree of FR protection in the final proposal. European Parliament v Council in this sense gives some indication of the important role judicial institutions can play not only in providing substantive guidance over FR protection but in delineating the proper constitutional responsibilities between different actors engaged in the governance of EU FR. 104 105

Ibid., 76 and 77. On the judgment’s political consequences, see M. den Heijer and E. Tauschinsky, ‘Where Human Rights Meet Administrative Law: Essential Elements and Limits to Delegation’ (2013) 9 European Constitutional Law Review 531–532.

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2.5 Balancing Different Margins of Appreciation in EU Fundamental Rights As discussed at the beginning of this chapter, the European Courts have not developed an explicit MOA in their application of EU FR, in their relations either with national Courts or with the EU legislature. Beneath the surface, however, the EU Courts, like the ECtHR, are operating in a complex, multilevel system. Responding to this, they have developed techniques of deference and accommodation towards other FR actors, without developing systematic criteria on the intensity of FR review. If we see the role of the EU Courts as being a structural one, i.e. one of overseeing and activating a process of FR monitoring and protection, this lack of systemisation and consistency is certainly a normative problem. In simple terms, both political institutions and citizens are likely to lack clear guidance as to how Courts may respond to FR complaints.106 To what extent could this be improved? In conclusion, it may be worth exploring two possible routes for improvement.

2.5.1 Scope: From a Binary Distinction to a ‘Sliding Scale’? This lack of guidance begins with the Court’s interpretation of the Charter’s scope limitations. On the one hand, Article 51 could be seen as a substitute for the MOA doctrine in ensuring that the Charter plays a subsidiary role. To know whether or not the Charter is to apply, citizens and institutions must simply follow the chain of authority of EU law. Unfortunately, the very binary nature of the Court’s reading of Article 51 may have the capacity to considerably confuse. As Fransson illustrates, even a relatively limited connection to EU law may still bring Member State action within the scope of the Charter, in so far as it is seen as an instance of ‘implementation’. The uncertainty over whether national action is ‘implementing EU law’, and the lack of objective criteria underlying this distinction, could lead to relatively arbitrary decisions and high uncertainty as to whether national law should be evaluated according to national or Charter standards. To add a further factor into the mix, the perception after Melloni that the degree of national FR protection could be lowered via the Charter’s application could lead to fears among national Constitutional Courts of the national order being hollowed out. 106

On this complaint, which has often focused on the lack of clear reasoning in CJEU decisions, see V. Perju, ‘Reason and Authority in the European Court of Justice’ (2009) 49 Virginia Journal of International Law 2.

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One possible alternative is for the European Courts to seriously consider whether elements of an MOA doctrine could offer a better alternative to a binary scope-based distinction to the application of EU FR. This would involve some adaptation from the approach of the ECtHR. The advantage of that Court’s approach is that – while there is a presumption that ECHR standards ought to apply to national action – the MOA allows transnational Courts to vary their standard of review depending on relevant factors. An evaluation of national compliance with FR can take place, but one that is sensitive both to the purpose of transnational fundamental review (and the ‘essence’ of the rights protected) and to the political sensitivities driving national restrictions of FR standards. This would suggest exploring a sliding scale rather than binary approach to the operation of Article 51. While the EU Courts would be relatively forthright in allowing the Charter to apply to national standards with a link to EU law, this would be combined with variability in the level of review depending on a number of factors, one of which could be the extent to which the act in question represents the implementation of EU standards (with stronger scrutiny in cases where the link to EU law is particularly clear). Variability in review could also depend on some of the other factors discussed above, i.e. the nature of the affected right and the extent of national diversity in its application. While this would seem a radical departure from existing practice, there are areas of EU FR law where we already see some indications of this approach. In the area of age discrimination, for example – a sensitive area of EU FR policy – the CJEU has tended to combine a broad approach to the material scope of the prohibition of age discrimination with a deferential and flexible approach to national limitations on this right.107 The ‘broad-brush’ approach to the scope of EU FR is illustrated by the Court’s approach to the material scope of the Employment Equality Directive. When negotiating that Directive, the Member States were keen to avoid extensive EU meddling in national retirement policies. As a result, the Directive states that its provisions are without prejudice to national age limitations for retirement and invalidity benefits.108 Nonetheless, the Court has interpreted these restrictions narrowly, 107

108

I am grateful to Elise Muir for drawing this case law to my attention. See E. Muir, ‘Finetuning Non-Discrimination Law: Exceptions and Justifications Allowing for Different Treatment on Grounds of Age in EU Law’, (2015) 15 International Journal of Discrimination and the Law 1. See Directive 2000/78/EC, Preamble at 14.

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arguing that measures such as compulsory termination of employment based on age or severance allowances related to dismissal could indeed fall within the Directive’s scope.109 Balanced against this, the Court has been generous in allowing Member States to justify as necessary and proportionate national measures potentially restricting the prohibition of discrimination on grounds of age. The Court has thus permitted national policy-makers to differ entitlements to certain categories of benefits on grounds of experience,110 to enact specific measures to benefit age groups in the labour market who are specifically disadvantaged111, or even to allow age restrictions in respect of genuine occupational requirements.112 In short, the Court has been strict and deferential at the same time: on the one hand, it has brought matters within the scope of EU law; on the other, it has opted for a generous standard of review in terms of permitting Member State exceptions. As Elise Muir has argued, ‘this suggests that the CJEU’s approach to the prohibition of age discrimination does not ignore the Member States’ concern to retain discretion on age related social policies’.113 Given that sensitive questions over the application of EU FR relate not just to age discrimination but to a large range of EU FR standards, the EU Courts could consider the suitability of generalising this approach to broader areas of FR law. A sliding scale approach – where matters are brought within the scope of the Charter, but in a way open to national restrictions, depending on objective criteria, including the degree of integration with EU law – could offer a way out of some of the difficulties associated with the Court’s Article 51 jurisprudence. In short, the binary idea of the scope of EU FR contained in Article 51 should not be seen as an alternative to an MOA doctrine: rather an MOA may be precisely the best way of understanding and realising the scope limitations on the Charter’s applicability. In turn, it may offer a way for the CJEU to accommodate legitimate diversity in the Charter’s concrete implementation.

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110 111

112 113

See e.g. Joined Cases C-159/10 and C-160/10 Fuchs and Köhler (2011) ECR I-06919; Case C-499/08 I Danmark (2011) ECR I-06919. See Case C-298/10 Hennings (2011) ECR I-007965. E.g. Case C-45/09 Rosenbladt (2010) I-09391; Case C-341/08 Petersen (2010) ECR I-00047. Case C-229/08 Wolf (2010) ECR I-00001; Case C-447/09 Prigge (2011) ECR I-08003. Muir, n. 107 above, 16.

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2.5.2 The Standard of Review: Towards a Real ‘Process-Oriented’ Approach? In this sense, altering the Court’s reading of the Charter’s scope provisions only makes sense if the CJEU is willing to create a more developed and systematic set of criteria indicating when stricter or looser standards of FR review ought to be applied. Currently, the Court’s approach to its standard of review remains confusing at both the ‘vertical’ and ‘horizontal’ levels. At the vertical level, the CJEU does not insist on a uniform conception of EU FR when Member States seek to rely on national FR as a justification to depart from EU law. This sits in uneasy tension, however, with its reluctance to recognise that FR embedded in EU rules themselves may be subject to intense disagreement. Brüstle and Melloni are foremost examples, demonstrating the unwillingness of the Court to allow Member States leeway in departing from common EU standards where these standards either operate in a sensitive area of policy or could be protected at a higher level through national constitutional orders. The CJEU has also struggled to develop a coherent approach to its standard of review at the horizontal level. In developing elements of an ‘essence of rights’ doctrine, it has made a potentially significant ‘procedural’ step forward. The essence of rights concept may allow the Court to distinguish between rights essential to the Charter’s realisation and those where legislative flexibility to balance rights and general policy consideration may be afforded. Such an approach may also allow meaningful constitutional dialogue between the CJ and the EU’s political institutions to arise. In other cases, however, the EU Courts have either insisted upon intense proportionality review or used Charter provisions to override legislation elaborating FR, even in circumstances where the Treaty has entrusted the EU institutions with specific FR tasks. In this sense, just when – according to a procedural approach – the intensity of review should be lowered, i.e. because limitations on FR have been extensively discussed legislatively, EUlevel judicial review has been particularly exacting. Finally, while the CJEU may require a more defined set of criteria in considering in what circumstances it should adapt its review power at both levels, it also must consider the applicable criteria where the ‘horizontal’ and ‘vertical’ levels clash. In such cases, a procedural approach may be useful. In addressing such a conflict, a procedural approach would emphasise the process through which substantive rights had been limited. If, for example, EU legislation elaborates FR through an explicit Treaty basis (as in the data protection or equality law examples) or has been deliberated via a full legislative

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process, there may be good reason to engage in a strong horizontal MOA. Where, by contrast, FR-relevant legislation has sidestepped significant political discussion or has not debated the FR implications of its provisions, a stronger level of review – or greater deference to national standards – may be justified. In simple terms, if we see a horizontal MOA as a proxy for respecting the role of political institutions in elaborating FR standards, it is difficult to justify in cases where those institutions are entirely or partly absent. This is one angle from which to critique the Melloni judgment. The normative problem of that judgment may lie not only in its treatment of national standards but in its overly deferential attitude towards a framework decision adopted via a limited legislative process.114 The European Arrest Warrant was adopted as a Framework Decision under the EU’s then ‘third pillar’, and thus agreed by the Council without European Parliament consent, and in a period where even judicial review of such measures was restricted. In keeping with the Court’s approach in other case law (e.g. the Parliament v Council case discussed above), a procedural approach would encourage the Court to be more demanding of EU measures in circumstances where the political process whereby FR has been restricted has itself been curtailed or limited. The same normative criteria would also explain the strict review operated in Schrems. As an implementing act, the Court of Justice in Schrems invalidated a political decision of the EU institutions, but one adopted by a body (the Commission) with weak political accountability and limited responsiveness to EU citizens. In this decision-making process, neither of the Union’s legislative institutions was present (with one, the EP, being critical of the Commission’s action).115 In such circumstances, the provision of subsidiary review via national data protection authorities could more clearly outweigh the demand for a uniform application of EU law. Finally, a procedural ‘process-oriented’ approach would also encourage strong dialogue and interaction between the EU Courts, national institutions and the EU legislature in cases where the horizontal and vertical MOAs conflict. Again, Digital Rights Ireland may be an example of how 114 115

See on this point, Besselink, n. 80 above. One’s view on the adequacy of political supervision of implementing decisions depends largely on one’s view of the effectiveness of comitology (in this case, Opinions of the national DPAs and the Article 29 Working Party on data protection are also sought for data transfer adequacy decisions). On the set of typically consulted actors, see http://ec .europa.eu/justice/data-protection/international-transfers/adequacy/index_en.htm.

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this approach is already influencing elements of the Court’s decisions. The case was heard as a preliminary ruling in the context of a cascade of national challenges to the Data Retention Directive, suggesting severe problems with the Directive’s national implementation. At the same time, the case was heard in the context of an extensive period of legislative reform. By not merely addressing the question of the Directive’s validity but also pointing to specific deficiencies, the Court opened the political door to illustrating how a legislative reframing of the Directive, more respectful of Charter rights, could be ensured. The Directive was thus judicially disapplied, but in a context where a full political response was possible. If we contrast this with another example of legislative annulment, TestAchats, we can see how a similar ‘dialogic’ approach could be used to urge a different course. Not only did the Court in Test-Achats refuse to give detailed reasons for its decisions but is also ruled on a piece of legislation adopted under a special legislative procedure in which uniformity in the Council is required. These requirements have blocked significant legislative progress in EU equality law for almost a decade, indicating the difficulties for the political institutions in responding to this ruling.116 A procedural approach would seek to open up rather than preclude further legislative action on the protection and development of EU FR. It would encourage a Court in the FR domain that facilitates rather than restricts political responsiveness to FR concerns.

2.6 Conclusion The crucial question of course that follows from this is the performance of the legislative institutions in taking up their FR responsibilities. A procedural approach encourages judicial deference to political institutions but only in circumstances where FR are capable of being protected and deliberated via those institutions themselves. A political system fundamentally defective in enforcing and protecting FR would be of little use in this regard. Assessing this system is the function of the next chapter. As a concluding point, it is difficult to see how Courts alone can bear the burden of ensuring that the EU Charter can be adequately fulfilled.117 116

117

See L. Waddington, ‘Prospects for EU Equality Law. Lessons to be Learnt from the Proposed Equal Treatment Directive’ (2011) 36 European Law Review 2. See, contra, the heavy reliance on judicial institutions in proposals such as A. Bogdandy et al., ‘Reverse Solange: Protecting the Essence of Fundamental Rights against EU Member States’ (2012) 49 Common Market Law Review 2.

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A case in point is the Courts’ recent ruling in Google Spain. In that case, the CJEU held that Google was obliged to delete certain personal information from research results in specified circumstances.118 This finding is relatively meaningless as regards its ability to protect individual privacy rights until and unless political and private actors are able to agree on a regulatory framework as to how it can be implemented. This point is related to the judgment’s territorial reach. As Alsenoy and Koekkoek have pointed out, it is particularly unclear whether the obligation to delete (or ‘forget’) should have territorial extension outside of the EU.119 To do so would involve a seemingly problematic territorial extension of EU law that could also result in third states demanding similar restrictions in the EU (to the detriment of free expression). To not do so would mean users could simply switch to other platforms within the google search engine, based in other countries, to retrieve the same information. Choosing either option has wide international and political implications that were not discussed (nor arguably could they be) by the Court’s decision. They require a political, and not only legal, response. The key ‘governance’ issue may be how the Court facilitates or restricts the operation of the EU’s political institutions in this regard (and that of national FR actors too). By suggesting a ‘sliding scale’ approach to the application of the EU Charter, and the development of a procedural margin of discretion when different systems of FR protection conflict, the chapter has endeavoured to show some avenues for possible future reform. Whether these avenues are taken up or not, at the very least the European Courts require a more politically responsive approach to the EU Charter: one that recognises both its place in the EU’s larger institutional framework and the levels of contestation and political conflict that exist over how to define EU FR. While the EU Courts need not adopt the MOA doctrine wholesale, they at least need to take seriously the challenges to the judicial construction of transnational rights that fostered the MOA’s creation. This is a task the Court has only just begun. 118

119

Case C-131/12 Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, Judgment of 13 May 2014. See B. Van Alsenoy and M. Koekkek, ‘The Territorial Reach of the Right to be Forgotten: Think Locally but Act Globally?’, European Law Blog, 18 August 2014. Available at: http:// europeanlawblog.eu/?tag=right-to-be-forgotten.

3 Fundamental Rights and the Political Institutions

3.1 Dividing Labour in EU Fundamental Rights A governance approach to EU FR suggests that human rights protection in the EU is a shared responsibility, but it also raises the difficult question of how to share. An obvious approach is to consider responsibilities according to some assessment of comparative institutional advantage. This was also part of the analysis of the last chapter. There may be a strong rationale for transnational Courts as guardians of FR standards, but there are also reasons as to why those Courts should share FR responsibilities both with national Courts and political bodies (in circumstances where FR standards provoke intense disagreement). Given this comparative logic, what kind of division of FR responsibilities should we expect when considering the respective roles of the EU institutions? And to what extent does their existing practice in the FR field conform to any envisaged ideal type? While these questions can be partially traced with reference to the Treaties, this task is complicated by the absence of a comprehensive legal basis for general FR policy. Legal bases for EU FR are fragmented between different policy areas, all of which have potential FR implications. As a result, there is a tendency within the Treaties to stick to the bland formulation that all institutions are bound to respect and fulfil FR in their action.1 The commitment on all to respect FR could easily become a curse rather than blessing in so far as it absolves institutions from specific responsibilities. It may be much easier to evade a general duty than a concrete one. A more helpful approach may be to consider concrete FR duties that the institutions have themselves taken on, i.e. in particular areas. The Commission’s adoption of a rule of law mechanism, for example, suggests a particular responsibility for measuring violations relating to Justice and the Rule of Law. Equally, other FR actors, such as the 1

See e.g. Art. 67 TFEU.

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Fundamental Rights Agency (FRA) and the European Ombudsman (EO), have a delimitation of duties laid down in their founding regulations.2 There may also be expectations regarding particular FR tasks, given the roles certain actors play in the EU’s general policy-making cycle. In short, one can construct institutional responsibilities – an emerging ‘division of FR labour’ – between institutions based on the self-perception, capacities and functions of institutions across policy domains. This chapter will conduct this mapping exercise at two different levels. Firstly, it will consider the formal division of responsibilities. What kind of FR duties do the EU institutions carry and share, given their formal mandates? Sections 3.2–3.6 of this chapter will take up this task by examining the mechanisms, procedures and institutions created by the EU’s main political bodies to incorporate FR considerations into their work. While three sections will examine the FR mechanisms of the EU’s three main political institutions – the Commission, Council and Parliament – we will also consider two further sets of institutions. The first category is watchdog institutions, in the sense that they seek to monitor the EU institutions themselves. The Court of Justice (already discussed extensively in Chapter 2) is such an example, but the EU Ombudsman, who frequently monitors the incorporation of fundamental rights in the day-to-day work of the EU’s institutions, is a further such body. The second category is implementing institutions: bodies formally subordinated to assist another EU institution in fulfilling its FR duties. An example wholly devoted to FR is the EU’s Fundamental Rights Agency (FRA) but other bodies set up to examine how vague FR standards contained in EU secondary legislation could be further elaborated either at national or EU levels, such as national equality bodies or the Article 29 Working Party on data protection, also fall within this category. These additional institutions may prove to be just as crucial as their political parents in elaborating substantive rights and institutional procedures for ensuring EU rights can be more effectively applied. The second approach of this chapter is to examine the division of responsibilities at the level of practice. By observing the development of legislative proposals with significant FR implications, the chapter will try to trace the gaps between formal duties and practical roles. Section 3.7 2

Council Regulation 168/2007/EC establishing a European Union Agency for Fundamental Rights, Art. 4; Decision of the European Parliament on the regulations and general conditions governing the performance of the Ombudsman’s duties, OJ L (1994) 113, Art. 2 and 3.

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will conduct this exercise by examining the progress of two important recent pieces of EU legislation (one on data protection and the other on passenger name records) with important FR implications. Taking the opinion of the EU Fundamental Rights Agency as its basis, the section will demonstrate how the EU institutions interact when FR questions arise in the course of legislative amendment. To what extent have the various institutions either aimed at or impeded a high level of FR protection within EU law? The chapter will develop a two-fold argument. Firstly, it will argue that the FR mechanisms of the EU institutions cannot be understood independently of the strategic objectives of each institution and its perception of its ‘proper role’ in the EU’s larger institutional structure. Like other policies, FR carry a lofty rhetoric: one would be hard-pressed to find any EU body willing to commit on paper to anything less than their full realisation. They also, however, carry a strategic element: FR are often used to increase the influence and reach of institutions within the EU political process, or justify an institution’s very existence. This observation applies not only to the independent operation of EU institutions but in terms of their interaction too. EU institutions use FR to build alliances with more powerful actors elsewhere in the policy-making chain, to defeat policies advanced by rival institutions (e.g. in the context of the ordinary legislative procedure) or to re-enforce their own views of the EU’s substantive goals. Far from serving as independent standards by which to judge the EU institutions, FR are often subsumed within the game of EU institutional politics. The second argument the chapter will advance is that this subsuming should not be seen in wholly negative terms. As the chapter will evidence in each section, the EU’s political system has severe FR failings. The record of each of the Union’s main institutions is shaky, providing plenty of evidence that Weiler and Alston’s sentiment of the late 1990s – that ‘despite the frequency of statements underlining the importance of human rights and the existence of a variety of significant individual policy initiatives, the European Union lacks a fully-fledged human rights policy’ – may still be valid today.3 In spite of this, however, the governance lens, i.e. the notion that EU FR have to be considered cumulatively, and according to a division of labour between different institutions, paints a far more positive picture. While the EU FR system has many deficits, it also demonstrates a marked 3

P. Alston and J. Weiler, ‘An Ever Closer Union in Need of a Human Rights Policy’ (1998) 9 European Journal of International Law 662.

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ability to correct itself, i.e. for FR violations and omissions committed by particular institutions, which are later on rectified by others. As we will discover in the context of the legislative process, the very diversity of the EU’s institutional system – and the need for a high level of consensus between actors – makes efforts to erode FR protection via EU legislation difficult. While many further opportunities for collaboration and integration in EU FR remain, the EU carries a significant degree of institutional capacity in the FR field. Later chapters will examine how it has put this capacity to use in relation to distinctive sets of rights.

3.2 The European Commission Given its position as legislative initiator, let us start with the European Commission. What would an ideal Commission look like from an FR point of view? The Commission has to observe different FR functions. One element of its function is ‘negative’, i.e. ensuring that FRs are not ignored in the context of other policies. This negative arm, however, does not exhaust what we may legitimately expect of the EU in the field of FR, and also represents a function that can be played by other institutions. If our primary expectation in the field of EU FR is negative, the focus of EU FR could reasonably be the EU Courts. In normal constitutional orders, as in the EU order, the ‘last instance defence’ of FR guarantees normally rests with them. The Commission’s FR governance – when seen from the perspective of this ‘negative arm’ – is relatively advanced. If we observe the evolution of Commission practice over the last decade, the Commission has instituted a number of measures enhancing its ability to spot and correct FR defects in the legislative process. There remain a number of defects in this strategy – many of which will be outlined. At the same time, the Commission of 2016 is one with far more tools at its disposal to identify and tackle legislative violations of FR. This architecture has led some scientific work to support the idea of a European Commission at the vanguard of FR protection: Would it then be strange to assert that, in comparison, the European Commission may be the radical human rights institution in the EU, in Europe, and perhaps even globally: a potent, if flawed, force for the promotion of human rights, an antagonistic counter-weight to the CJEU and the overburdening reactionary judicialization of FR?4 4

A. Williams, ‘Human Rights in the EU’ in A. Arnull and D. Chalmers (eds.) Oxford Handbook on European Union Law (Oxford: Oxford University Press, 2015), 249.

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What, though, of the second ‘positive arm’ of EU FR? The function of the Commission in the FR field, as Williams alludes to, cannot be exhausted by negative measures but must include the positive promotion of FR.5 This is a logical consequence of the Commission’s institutional position within the EU order: unlike the other main institutions, whose role is to react to and shape Commission proposals, the Commission is the agenda-setter: the principal actor with the capacity not just to ‘react’ to FR violations as they occur but to proactively develop and shape FR policies. The entrapment of the Commission in a negative paradigm of FR may have led it, however, to adopt a conservative and limited interpretation of its FR role. This concerns both its promotion of FR in the Member States (in particular, its restricted view of its role as ‘guardian’ of the EU Treaties) and its own legislative agenda on FR matters. It is telling in this regard what the Commission is proud of in the domain of FR. In its 2014 report on the implementation of the Charter, it points to, as an example of good practice in the field of FR, its refusal of EU funding for detention centres that do not comply with FR standards.6 While few would object to the notion that EU funds should not promote inhumane and degrading treatment, the effect of this step is unlikely, however, to be positive: its alternative is either that the practice of detention continues without EU support or that Member States simply have less support to find alternative housing and support for refugees. At the very least, this example demonstrates the impotence of the Commission in the face of many of the EU’s most significant FR concerns: a Commission with the capacity to make a difference in refugee treatment would not merely negatively disassociate itself with dubious detention practices but seek to positively build an infrastructure for the protection of the rights of refugees. This largely ‘negative’ framing of the Commission’s FR responsibilities emerges from the Commission’s first engagements with FR. The Commission began to develop a fledgling FR policy long before the Charter was a legally binding commitment.7 Since the Charter’s creation, it framed its primary duty in terms of verifying the FR compatibility of its legislative proposals. It already made this commitment in March 2001, 5

6

7

S. Fredman, ‘Transformation or Dilution: Fundamental Rights in the EU Social Space’ (2006) 12 European Law Journal 1. European Commission, 2014 Report on the Application of the Charter of Fundamental Rights (Luxembourg: Official Publications of the EU, 2015), 8. See the 1977 joint declaration of the three main institutions that they would ‘respect and continue to respect’ fundamental rights as general principles of EU law. OJ (1977) C 103/1.

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introducing explicit guidelines for FR impact assessment (IA) in June 2005.8 From the coming into force of the Lisbon Treaty, the Commission adopted an even more ambitious ‘Strategy for the effective implementation of the Charter’ in October 2010.9 Through its strategy, the Commission sets an extremely high bar within which to judge its activities: ‘The Union’s action must be above reproach when it comes to FR. The Charter must serve as a compass for the Union’s policies and their implementation by the Member States.’10 The 2010 strategy establishes four main pillars.

3.2.1 Impact Assessment and Establishing a ‘Fundamental Rights Culture’ The first of these pillars is ‘establishing a fundamental rights culture’. This implies ex ante review, such as an FR checklist for legislative proposals, including FR in public consultations, conducting FR impact assessment, assessing the adequacy of FR IAs through an independent IA board and carrying recitals and summaries indicating how FR impacts have been dealt with in legislation.11 In this sense, ex ante IA is the cornerstone of the Commission’s FR strategy, listed in document after document,12 and reaching its nadir through the establishment of an inter-institutional agreement (IIA) on ‘better law-making’ agreed by the three main institutions in early 2016.13 This agreement significantly extends the reach and scope of FR IA. The agreements ask that IAs be applied to ‘legislative and non-legislative initiatives, delegated acts and implementing measures expected to have significant economic, environmental or social impacts’.14 The guidelines thus make clear that IAs should include delegated or implementing legislation. While the scope of IA has thus been broadened, it still tends 8

9

10 11 12

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Commission Communication, Compliance with the Charter of Fundamental Rights in Commission legislative proposals, COM (2005) 172. Commission Communication, Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union, COM (2010) 573. Ibid., at 3. Ibid., 3–7. See e.g. Report on the practical operation of the methodology for a systematic and rigorous monitoring of compliance with the Charter, COM (2009) 205; Communication on Smart Regulation in the European Union, COM (2010) 543. Proposed Text of the Proposed Inter-Institutional Agreement on Better Regulation. Available at: http://ec.europa.eu/smart-regulation/better_regulation/documents/201512 15_iia_on_better_law_making_en.pdf. Ibid., at 8.

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to follow the overall schema of EU law. While there is an assumption that IA should now extend to all legal acts, there remains the ‘grey zone’ of soft law initiatives. As the chapter on social rights will discuss, financial and budgetary monitoring in the context of the European Semester, and the Commission’s pressure on MSs in meeting financial commitments, can also have considerable financial implications. Soft law recommendations, such as country-specific recommendations, are not, however, subject to IA. This still illustrates significant holes in the scope of pre-legislative assessment. How do we justify IA and the ‘mainstreaming’ of FR into the policy process? A strong academic defence has been offered by Olivier de Schutter, who sees the mainstreaming of FR through IA as a way of avoiding their ghettoisation, encouraging policy-makers to reflect on the interdependencies between FR and general public policies. In this regard, mainstreaming and IA are sources of institutional learning: To the extent that they must mainstream human rights into decisionmaking, policy-makers are obliged to identify issues which are present in the policies they pursue or the sectors these policies impact upon, but which would otherwise be obliterated or marginalised. As they get acquainted with the new tools mainstreaming requires, these actors will learn about these implications which previously may have gone unnoticed. They will progressively gain an expertise in the issues mainstreaming requires them to consider.15

A more strategic rationale for IA may be hinted at by the Commission’s own FR IA guidance. The case of Schecke16 is cited as an example of a failure to adequately consider in advance whether measures (in EU agricultural funding) more respective of FR could have been adopted, in order to avoid their annulment via judicial review.17 IA is a mechanism to defend policy measures against later judicial scrutiny: ‘properly assessing any impact on FR in the preparatory stages of new legislation will therefore not only contribute to finding the most appropriate solution to a given problem but will also strengthen the defence of EU legislation against legal challenges before the ECJ’.18 15

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O. de Schutter, ‘The New Architecture of Fundamental Rights Policy in the EU’ (2007) Universite Catholique de Louvain Working Papers 20. Joined Cases C-92 & 93/09 Volker and Markus Schecke v Land Hessen (2010) ECR I-11063. Commission Staff Working Paper, Operational Guidance on taking account of Fundamental Rights in Commission Impact Assessments, SEC (2011) 567, at 4. Ibid., at 5.

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This defensive view of IA is reflected in the checklist given to Commission officials in checking FR compatibility.19 The checklist effectively copies CJEU jurisprudence, asking Commission officials to identify the rights affected, to consider whether they are absolute, to consider whether FR limitations are clear and predictable and to question whether limitations on FR are necessary and proportionate. Some elements of the emerging MOA considered in Chapter 2 are also included: the Commission is asked, for example, to consider whether limitations ‘preserve the essence of the FRs concerned’. In a more positive light, this could be seen as an example of interinstitutional cooperation and dialogue. It certainly reflects the wish to ensure that proposals are not subject to overly severe judicial scrutiny. The CJEU itself has even defended its own practices of judicial review on this basis: as already indicated, in extrajudicial writing, the President of the CJEU has cited Schecke as an example of a Court that does not supplant the Commission’s political prerogatives but rather ‘makes sure that lawmakers had done their work properly’.20 On a more negative side, this view of IA could be seen as an extension at a political level of a rather conservative judicial reading of what FR are about. Firstly, by framing IA in terms of proportionality, FR are placed in a rather defensive position. The Commission’s obligation is not the positive fulfilment of FR but to frame its proposal in such a way that review on FR grounds is more difficult. FR are seen as ancillary – something to be integrated into other policies, but not as a policy or goal in and of itself.21 FR are in danger under IA of being reduced to a series of ticked boxes and procedural hurdles, inverting the traditional idea of FR as something foundational, i.e. rights that may not merely augment public policy but exclude certain ways of acting altogether.22 Secondly, it is unclear whether policy officers are really capable of engaging with legal analysis of the type demanded by IA guidelines. There is no attempt under the Commission’s guidelines – nor in those of other institutions – to reframe CJEU criteria in the light of the differences between a legal and a policy-making setting. Israel de Jesus 19 20

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Ibid., at 7. K. Lenaerts, ‘The European Court of Justice and Process Oriented Review’ (2012) 1 College of Europe Research Papers in Law 7. On this long-standing critique of EU FR, see J. Coppel and A. O’Neil, ‘The European Court of Justice: Taking Rights Seriously?’ (1992) 12 Legal Studies 2. On this critique, see T. Novitz, ‘The Right to Strike as a Human Right’ (2008) 10 Cambridge Yearbook of European Legal Studies, 541–561.

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Butler has provided some examples of how this gap can lead to debilitating effects.23 IAs on EU legislation on credit rating agencies, for example, have defended restrictions on agencies issuing debt ratings as justified under Article 10(2) of the ECHR, which refers to public measures necessary to prevent public disorder. As Butler points out, this represents a misunderstanding of ECHR case law, which restricts public disorder largely to violent unrest and criminality.24 A major problem in ensuring that IAs take proper account of FR may be the Commission’s organisation. A problem frequently mentioned by officials interviewed for this book is the silo effects emerging from the division of the Commission into particular Directorates-General (DGs).25 While DG Justice is manned by lawyers and carries a specific Charter unit, for other DGs, FR are likely to constitute a more peripheral task, both to the mandate of their DGs and to the academic background from which officials emerge. In this sense, while FR may be mainstreamed into IAs, this is likely only where the FR issues are obvious or intricately connected to the proposal itself. Where the proposal is primarily associated with another policy field, there is a good chance of FR issues being ignored altogether.26 An even greater danger may emerge from politicisation of the IA process and the possibility of IAs being assembled primarily around the preferred policy options of the Cabinet (of the relevant Commissioner). As stated (anonymously) by one official, ‘impact assessment may be systematic but it does not drive policy decisions’. There is a sense of IAs following and justifying policy already formed (even if in embryonic form) rather than driving decisions, or creating a range of realistic policy options from which officials will then choose. The likelihood of this danger being realised depends on a final element of IA: its control mechanisms. The first such mechanism is the establishment – through the Commission’s ‘Better Regulation’ agenda – of a regulatory scrutiny board (RSB) to examine Commission IAs.27 Its predecessor, the IA board, was cited in the 2010 Charter strategy as a mechanism to enhance 23

24 25 26 27

I. de Jesus Butler, ‘Ensuring Compliance with the Charter of Fundamental Rights in Legislative Drafting: The Practice of the European Commission’ (2012) 37 European Law Review 4. Ibid., at 407. Author interviews with Commission officials, DG Justice; DG Employment, May 2015. Butler, n. 23 above, at 407. See Commission Decision on the Establishment of an Independent Regulatory Scrutiny Board, COM (2015) 3263.

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FR control.28 The association of the board with ‘ Better Regulation’ could also, however, pose the opposite danger: that the mandate of the RSB to limit regulatory burdens could lead to levels of FR protection being lowered in the name of the Commission’s political agenda.29 An example may be the Commission’s proposals for a Directive on accessibility rules for access to goods and services as a result of requirements flowing from the UN Disability Convention. The Commission’s initial proposal and accompanying communication defended the imposition of positive measures for service providers in the internal market to ensure equal access of the disabled.30 In doing so, it implemented the demand for integration of the disabled required under Article 26 of the Charter. This IA was, however, rejected by the assessment board for inadequately considering and quantifying the effects of these measures on business. According to the board, the IA did not adequately explain why the option of self-regulation had been discarded or why microenterprises had not been excluded from the directive’s scope.31 It is difficult not to see this example as foreshadowing the possibility that the RSB, rather than improving the level of FR protection, may erode it in the name of lowering regulatory burdens.32 More recent statistics could engender scepticism that FR considerations will be spotted by the RSB if not already dealt with by the relevant DG who drafted the initial IA. While in 2014, 10 out of 25 IAs were initially rejected by the IA board (the predecessor to the RSB), resulting in a 40 per cent resubmission rate, FR issues were rarely the reason.33 FR is the lowest of all analytical issues commented upon by the board, mentioned in less than 5 per cent of opinions in both 2013 and 2014. This is dwarfed by economic impacts, which are commented upon in over 70 per cent of opinions in 2014 and over 80 per cent in 2013. 28 29

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Charter strategy, n. 9 above, at 6. The deregulatory fears associated with Better Regulation have been well articulated by EU-level civil society. See e.g. the founding statement of the Better Regulation Watchdog, a conglomerate of NGOs. Available at: www.betterregwatch.eu/BRWN_Founding_State ment_and_Members.pdf. Commission Proposal for a Directive on the Approximation of the Laws of the Member States as Regards Accessibility Requirements for Products and Services, COM (2015) 615, at 6. IAB Opinion of 15 May 2013. Available at: http://ec.europa.eu/smart-regulation/impact/ ia_carried_out/docs/ia_2015/sec_2015_471_0.pdf. For a contrasting view, see A. Alemanno and A. Meuwese, ‘Impact Assessment of EU Non-Legislative Rule-making: The Missing Link in “New Comitology”’ (2013) 19 European Law Journal 1, 90. IAB 2014 Activity Statistics. Available at: http://ec.europa.eu/smart-regulation/impact/ key_docs/docs/iab_stats_2014_en.pdf.

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Secondly, in cases where ex ante review of FR via IA is inadequate, it should be complemented by the checks conducted by the Commission’s legal service. The legal service is also frequently mentioned in Commission guidelines as a backstop and source of FR advice.34 To what extent, however, are these checks taken seriously? A concerning example may be the EU’s PNR agreement with the United States, which was forwarded to the legislative institutions in spite of legal service objections. The legal service commented that the new agreement was even more draconian than its predecessor in: (i) allowing data exchange for migration purposes in contravention of the anti-terrorism purpose of the agreement; (ii) allowing a 15-year retention period and (iii) in ‘guaranteeing basically no judicial redress to data subjects’.35 In a pointed critique of the lead DG, the legal service noted that ‘all comments were already transmitted to your service in the course of negotiations’. In this particular example, the FRA, the Article 29 party and the group of national data protection supervisors were also consulted and highlighted significant FR concerns on this proposal. As noted by Tony Bunyan, the Commission was made well aware of the FR deficiencies of the agreement yet felt under political pressure to press it forward in any case.36 This agreement was eventually blocked by the European Parliament in the course of the ordinary legislative procedure. This very example may re-enforce both the overall system’s strengths and its weaknesses. In terms of the weakness, awareness about FR may not substitute for political will.37 The fact that the Commission is aware of negative FR impacts will not lead it to drop its proposal where the political impetus behind a proposal is particularly strong. In terms of strengths, the very fact that the EP offered a legislative veto may illustrate the broader functionality of the system. Even if individuals within the Commission make particular mistakes, or even where one institution is determined to limit FR, the system as a whole may still offer opportunities to rectify them. The very complexity of the decision-making system – often lambasted as contributing to the EU’s democratic deficit38 – also provides veto points within which FR deficiencies can be tackled. 34 35

36 37 38

See e.g. Charter strategy, n. 9 above, at 8. ‘European Commission’s Legal Service says EU-USA PNR agreement is ‘not compatible with fundamental rights’. Statewatch (17 June 2015). Ibid., at 4. Butler, n. 23 above, at 417. See e.g. the call for simplification in decision-making of the 2001 Laeken declaration. European Council, Presidency Conclusions of 14–15 December 2001, at 22.

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3.2.2 Fundamental Rights in Decision-Making The second pillar of the Commission’s FR strategy concerns including the Charter in the legislative process. This includes mainstreaming FR via the Commission’s role as an intermediary in the legislative process. The Commission will thus ‘notify co-legislators of its opposition if they seek to lower standards’. These actions may ‘include requesting that the act be adopted unanimously or, where applicable, withdrawing its proposal or bringing an action for annulment of the provisions in question’.39 There are doubts as to whether the Commission has met this pledge. Where the Commission has withdrawn its proposal on FR grounds since the strategy’s adoption, this has not generally emerged as a result of a dangerous lowering of standards but because of a failure by the other institutions to agree. An example may be the Directive proposed in 2008 on equal treatment in the provision of goods and services.40 The European Parliament has frequently criticised the Commission for stalling the Directive’s initiative, after initial wariness in the Council.41 For other proposals, the Commission may have had every reason to withdraw its proposal on FR grounds yet refused to do so. The original PNR agreement discussed above is an important example: it was ultimately left to the EP to flag FR concerns through its veto power. We will come back to this element of the Commission’s FR responsibilities in Section 3.7, which examines FR in the legislative process more closely.

3.2.3 The Guardian of the Treaties (and the Charter Too?) The third pillar of the Commission’s strategy concerns enforcing the Charter as an element of the EU acquis. The Commission’s enforcement power is significant – if we assume that many actors will be deterred from enforcing their FR judicially due to a lack of resources, knowledge or time, the Commission is an actor with a unique capacity to litigate against states infringing Charter rights.42 39 40

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Charter strategy, n. 9 above, at 7. Proposal for a council directive implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, COM (2008) 426. See European Parliament Resolution of 8 September 2015 on the situation of fundamental rights in the EU, 2014/2254 (INI), at 44. M. Dawson, E. Muir and E. Claes, ‘Enforcing the EU’s Rights Revolution: The Case of Equality’ (2012) European Human Rights Law Review 3, 283–286.

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Given the Commission’s discretion over whether or not to launch infringement proceedings, the ambition of such a strategy crucially depends on how the Commission interprets the Charter. In its 2010 strategy, the Commission argued that infringement actions may be launched against the Member States ‘for non-compliance with the Charter in implementing Union law’.43 There is thus, in the Commission’s view, no legal basis for action unless a link can be identified between a given national measure and EU legislation. In its 2014 report on the implementation of the Charter, the Commission repeats this line: ‘infringement proceedings concerning the Charter must relate to the provision of Union law which triggers the applicability of the Charter’.44 Legal limitations on Article 51 could arguably – following the Fransson case law discussed in Chapter 2 – be seen as significantly more relaxed. Crucially, the Commission’s reading of the Charter provides no possibility either to evoke the Charter independently or (more cautiously) to consider Charter applicability beyond the transposition context, i.e. where a Charter action could be seen in a cross-border or internal market situation not covered by existing legislation. This cautious reading has been criticised by the European Parliament as constituting an ‘excessively restrictive interpretation’ of Article 51.45 In spite of these limits, there has been a modest increase in Charter references in infringement actions in recent years (five such references took place in 2013 and 11 in 2014).46 The figure of 11 may already, however, suggest a more comprehensive treatment than at first sight. Five cases concerned actions against Member States dealing with a single issue: misapplication of the EU’s visa code regulation on judicial appeal against decisions relating to short-term and transit visas. The explanation for this cautious approach may lie in the way in which the Charter is monitored. As confirmed by the author’s own interviews with Commission officials, infringement actions tend to originate via two sources – either from individual complaints or from other Commission-monitoring activities, e.g. legislative instruments where Commission monitoring of their implementation is a legal requirement.47 Given resource limitations, there is thus no general monitoring of the Charter’s application for the purposes of 43 44 45

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Charter strategy, n. 9 above, at 9. See 2014 Charter Report, n. 6 above, at 11. European Parliament Resolution of 27 February 2014 on the situation of fundamental rights in the European Union, 2013/2078/INI, at 21. 2014 Charter Report, n. 6 above, at 11. Author interviews with Commission official, DG Justice, May 2015.

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infringement. This opportunity-driven form of monitoring is likely to leave significant gaps in terms of central enforcement of the Charter (or even demand a cautious doctrinal reading of the Charter in place of practical obstacles to realising a more ambitious reading). As suggested by officials, given these two possibilities, the EU’s still novel PILOT procedure may have an impact on encouraging infringement actions relating to the Charter to be brought (and may provide an opening for transnational NGOs).48 Under PILOT, a citizen raising a complaint is entitled to an answer within a year. In this sense, while discretion remains with the Commission, the obligation to respond can create political dynamics of its own (particularly if the desk officer dealing with the complaint carries the political will to persuade others within their DG to pursue an infringement case). There remain, however, formal barriers to PILOT forming the basis of a more aggressive infringement strategy. Commission practice requires a full decision by the College of Commissioners for all stages of the formal procedure from the letter of formal notice through to the reasoned opinion, referral to the Court, opportunity closure of the case or any penalty decision. Only brave officials are likely to run this gamut of obstacles or raise an action that could be rejected by the College. Career dynamics could in this sense play a role in guaranteeing a conservative infringement strategy – as mentioned by one official, ‘no-one wishes to raise a “losing” case in a Commission where 90% of infringements are successful’.49 The pursuit of a losing infringement action would be at best an error in need of explanation and at worst a black mark on an official’s future career. In short, if Williams is right that the Commission is the ‘radical’ EU institution in the FR domain, this certainly cannot be said of its enforcement role. As with other institutions, the structural dynamics and resource limitations of the Commission are a serious barrier to an aggressive monitoring and enforcement strategy.

3.2.4 Post-Legislative Action and Awareness Raising The final pillar of the Commission’s Charter strategy concerns awareness raising and ‘better informing the public’.50 This includes answering 48

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See on the practical impact of this procedure, M. Smith, ‘The Evolution of Infringement and Sanction Procedures: Of Pilots, Diversions, Collisions and Circling’ in Arnull and Chalmers (eds.), n. 4 above, 362–366. Interview with Commission official, DG Employment, May 2015. Charter strategy, n. 9 above, 9–11.

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individual letters concerning FR, sponsoring seminars and surveys dealing with particular topical FR issues, and providing information on which national and EU institutions can address FR claims, e.g. through electronic services such as the e-justice portal.51 While awareness raising is certainly a noble objective, what about areas where the Commission seeks to ‘raise awareness’ in regard to FR violations it itself has contributed to? An example, discussed by Andrew Williams, is poverty.52 In this field, the Commission tends to confine its FR role to awareness raising and networking, creating strategies like the social inclusion OMC or the European platform against poverty to encourage national governments ‘to take seriously’ EU-level poverty targets.53 As will be discussed in the social rights chapter, however, the EU is not a passive actor in poverty policy. Through financial assistance, it is actively targeting some of the social programmes able to protect marginalised groups from poverty. In circumstances such as these, awareness raising could be seen as a red herring, a transfer of responsibility to ‘others’ for FR violations well within the Commission’s own powers to halt. Awareness raising in relation to FR may also have a more defined meaning. One example is the Commission’s post-legislative role and its use of post-legislative guidance to extend FR guarantees included in legislation to include additional rights provided via case law. An example is family reunification, where in April 2014, the Commission published guidelines on how the family reunification directive should be implemented.54 Drawing on ECHR and CJEU case law interpreting national law in light of the directive, the guidelines extend the guarantees relating to judicial review provided for in the initial directive (for example by extending the right of judicial challenge of reunification decisions from the four types listed in the directive to new decisions, such as refusal of employment).55 Here, the EU institutions re-enforce one another, i.e. the Commission uses its role in ensuring adequate national transposition of EU legislation to remind the Member States of their duty to obey CJEU and ECtHR case 51 52 53

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Available at: https://e-justice.europa.eu/home.do?plang=en&action=home. Williams, n. 4 above, at 267. See Commission Communication, The European Platform against Poverty and Social Exclusion: A European framework for social and territorial cohesion, COM (2010) 758. Commission Communication on guidance for application of Directive 2003/86/EC on the right to family reunification, COM (2014) 210. Ibid., at 29.

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law regarding FR.56 In this post-legislative arena, the Commission and CJEU are often likely to be allies, even ironically in cases where the CJEU overturns EU legislation. See, for example, the Commission’s response to the Google Spain ruling, in which the Commission quickly released a fact sheet, both explaining the judgment and using it to re-enforce the Commission’s legislative position.57 Through its reading of Google Spain, the Commission countered claims that by including such a thing as a right to be forgotten in its new data protection package, it was going beyond existing practice.58 Indeed, the judgment is used as a rationale for a new data protection package – ‘in recognising that the right to be forgotten exists, the Court of Justice established a general principle. This principle needs to be updated and clarified for the digital age. The Data Protection Regulation strengthens the principle and improves legal certainty.’59 Just as in the procedural model, FR rulings are seen here by the Commission not as the end of the political game, but used to mobilise for further change under the banner of elaborating and clarifying the reach of FR. Finally, post-legislative action may also involve ensuring that private, as well as state actors, comply with EU legislation. The Commission may play a role in this sense (akin to the Article 29 Working Party discussed in Section 3.6) of extending the reach of EU FR measures and ensuring that they find a place in norms that govern the private sphere. In the Commission’s strategy on cloud services, for example, the Commission has worked with digital providers to develop a code of conduct applicable to cloud service providers in Europe, to allow consumers to better assess whether cloud services adequately meet data protection standards.60 Here, the Commission both regulates directly and works with industry to re-enforce self-regulation ‘in the shadow’ of more binding future EU regulatory standards. In this example, as in the others discussed in this section, we see the importance of understanding the Commission’s FR role in terms of its 56

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See Case C-540/03, European Parliament v Council of the European Union, Judgment of 27 June 2006. Factsheet on the Right to be Forgotten Ruling. Available at: http://ec.europa.eu/justice/ data-protection/files/factsheets/factsheet_data_protection_en.pdf. As the Commission points out, ‘claims that the Commission has proposed something fundamentally new in the Data Protection Regulation are therefore wrong. This has been contradicted by the Court of Justice’. Ibid., at 3. See the agendas and work of the Cloud Select Industry Group. Available at: https://ec .europa.eu/digital-agenda/en/cloud-select-industry-group-code-conduct.

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broader position in the EU’s governance structure. The Commission has come some way in building a broad architecture along the ‘negative’ dimension, i.e. in screening its action against the most blatant FR violations. At the same time, the ambitions of its FR policy are limited by its institutional position: its need to develop policies in other areas, its limited legal and institutional resources and its desire to re-enforce its institutional mandate vis-à-vis others. The current Commission is certainly not the fundamental rights laggard that the work of the late 1990s mourned; it is not, however, at the cutting edge of twenty-first-century FR governance either.

3.3 The European Parliament 3.3.1 Politicising EU Fundamental Rights If the Commission is not at the vanguard, is the Parliament? Following the adoption of the Nice Treaty in 2001, the European Parliament announced its ‘particular responsibility’ (by virtue of the role conferred on it under Article 7(1) of the Treaty of Nice) to monitor FR across the EU.61 It began from that year the practice of adopting annual reports (via Resolutions) setting out the ‘fundamental rights situation’ in the EU. To assist it in this task, and to avoid claims that its monitoring role would be hindered by politicisation, it was instrumental in calling for a network of FR experts to assist its monitoring of FR within the Member States.62 This network, with one scientific expert per Member State, was set up by the Commission in September 2002.63 Like any Parliament, however, the commitment of the EP to FR issues is likely to be contingent upon the Parliament’s composition and the political agendas pursued by its MEPs. As a result, the EP has displayed a tendency to go hot and cold in its FR commitments.64 Following the clear victory of the centre right in the 2004 EP elections, the political tone within the EP on FR questions changed. By 2004, it had begun to criticise the very FR network it had urged the Commission to create, arguing that ‘Union intervention pursuant to Article 7 of the EU Treaty must be confined to instances of clear risks and persistent breaches and may not 61 62 63 64

European Parliament Resolution of 5 July 2001, 2000/2231/INI, at 3. Ibid., at 9. See: http://cridho.uclouvain.be/en/eu_experts_network/. On this tendency, see O. de Schutter, ‘The Implementation of the Charter by the Institutions of the EU’ (2013) CRIDHO Working Paper 1, 3–9.

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be invoked in support of any right to, or policy of, permanent monitoring of the Member States by the Union’.65 As a result, the EP suspended its practice of annual reporting for the first 4 years (2004–2009) of its parliamentary term. The 2009 term saw an EP much more sensitive to FR concerns, with the Parliament influential in requesting many elements that now form the backbone of the EU’s FR agenda, including its rule of law mechanism (called for by the Parliament in a Resolution of July 2013).66 With the reintroduction of annual Resolutions on FR, the EP throughout the Parliament lambasted the Commission for acting insufficiently ambitiously in the FR field, including through its failure to introduce FR legislation.67 In flat contradiction of its earlier defence of strict constitutional limits on EU intervention in the Member States, by the end of the 2009–2014 term, the EP had called in a Resolution for the outright abolition of Article 51 of the Charter.68 Its position on national monitoring thus became far more ambitious, including advocacy for a ‘Copenhagen Mechanism’ with the power not only to monitor national FR violations but to temporarily ‘freeze’ or suspend national acts violating Article 2 values.69 This last example illustrates well the political dynamics that underlie EP action in the FR field. There lies the danger of voting behaviour and issue prioritisation being driven by expressly strategic concerns, particularly via the political groupings from which national governments at the receiving end of FR-based criticism emerge. In the rule of law case – discussed further in Chapter 4 – the EPP, of whom Viktor Orban’s FIDESZ party forms an integral part, voted en masse in 2013 against the Tavares Report (a Resolution condemning Orban’s concentration of power through constitutional reform and demanding greater Commission intervention).70 The very same EPP group had only a year 65

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European Parliament Resolution of 20 April 2004 on the Commission communication on Article 7 of the Treaty on European Union, 2003/2249/INI, at 12. European Parliament Resolution of 3 July 2013 on the situation of fundamental rights: standards and practices in Hungary, 2012/213/INI, at 70. European Parliament Resolution of 15 December 2010 on the situation of fundamental rights in the European Union, 2009/2161/INI, at 23; Resolution of 8 September, n. 41 above, at 12; 21. European Parliament Resolution of 27 February 2014 on the situation of fundamental rights in the European Union, 2013/2078/INI, at 14. Ibid., at 9. ‘EP Report on Hungary: EPP Rejects Use of Double Standards’ (03 July 2013). Available at: www.eppgroup.eu/press-release/EPP-Group-rejects-the-use-of-double-standards.

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before condemned in June 2012 as ‘appalling’ the actions of the Romanian PM, Viktor Ponta, in ignoring the rulings of his own constitutional Court, calling on the European Commission ‘to make sure that the rule of law in Romania is re-established’.71 Mr Ponta’s government of course was part of the EPPs socialist opponents. While this is only one episode, it highlights the danger of debate on FR within the EP being captured by party politics.

3.3.2 Rights Reporting and the Role of the LIBE Committee One way around this danger of partisan capture has been the establishment of formal rules and mechanisms for FR mainstreaming in the EP’s work. Respect for fundamental rights is a formal duty of the EP and part of the Parliament’s rules of procedure. According to Article 38 of those rules, the EP must ‘fully’ respect Charter rights in its activities. Any proposal deemed by a political group of 40 members to violate FR must be referred to the Committee of Parliament responsible for the Charter’s enforcement: currently, the LIBE committee.72 The rules of procedure also provide, under Article 83, the possibility for the EP (via a two-thirds majority) to call on the Council or Commission to act, or submit a proposal for the enforcement of Article 7 of the TEU (a power the Parliament has not yet invoked, in spite of repeated threats to do so). In December 2015, a motion was passed by the EP (after a contested debate), condemning recent actions of the Hungarian government, yet omitting any reference to the Article 7 procedure.73 Once again, the EPP group was simply unwilling to take such a radical step.74 LIBE is tasked with preparing and voting upon the annual report of the EP on the FR situation in the EU. This report too, however, bears the scars of the issue of politicisation raised above. Previous drafts of the report have been rejected by major political groupings, with the 2012 Resolution rejected by the entire EPP group on the basis that it had become ‘a victim of political games fueled by party interests or ideology’ and was as a result ‘a tool for promoting extreme Liberal or Leftist 71

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‘Romania: EPP Calls on European Commission to Offer Impartial and Comprehensive Assessment of Current Situation in Romania’ (12 July 2012). Available at: www.eppgroup .eu/press-release/Romania%3A-EPP-calls-on-European-Commission. Rules of Procedure, Rule 38(2). European Parliament Resolution of 16 December 2015 on the situation in Hungary, 2015/ 2935/INI. http://euranetplus-inside.eu/european-parliament-adopted-a-soft-stance-on-hungary/.

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ideologies’.75 As a result of the need to build political majorities both within the LIBE committee and among the parliamentary plenary, the EP’s FR reports have tended to become longer and longer, with LIBE members inserting points that reflect their particular national or sectional concerns. The danger, acknowledeged by some of the EP officials interviewed for this book, is of annual Resolutions containing a long and worthy list of demands, few of which can be effectively realised by the other EU institutions.76 The annual reports have also focused on more lasting institutional projects and innovations. The EP has recently focused its energies77 on complementing the European Semester for economic policy with a process of national reporting and benchmarking in the FR field. In its 2012 annual Resolution, the EP called for a ‘fundamental rights policy cycle’, which would consider ‘on a multi-annual and yearly basis the objectives to be achieved and the problems to be solved’.78 The Commission is yet to take up this request but has in the meantime adopted sectoral coordination processes relating to particular FR issues, e.g. for Roma integration, established in 2011,79 and from 2012, on the eradication of human trafficking.80 Finally, the annual reports have been influential in attempting to fill current gaps in FR protection emerging from the Commission’s interpretation of the EU’s Treaty structure. One example is enforcement: the EP has urged the COM to make greater use of its infringement powers in FR cases, including to open infringement proceedings in relation to barriers faced by the Roma population.81 In April 2015, the Commission responded by, for the first time, opening infringement proceedings against a Member State (Slovakia) for discrimination on grounds of ethnic origin (in relation to Roma education).82 A second example is economic governance, where the 75

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‘Protection of Fundamental Rights Must Not Be a Victim of Ideological Debate’ (12 December 2012). Available at: www.eppgroup.eu/press-release/Protecting-fundamentalrights-. Interview with an EP official, June 2015. See below. European Parliament Resolution of 12 December 2012 on the situation of fundamental rights in the European Union, 2011/2069/INI, at 20. Commission Communication, National Roma Integration Strategies: a first step in the implementation of the EU Framework, COM (2012) 0226. Commission Communication, The EU Strategy towards the Eradication of Trafficking in Human Beings 2012–2016, COM (2012) 286. EP Resolution of 8 September 2015, n. 41 above, at 54. See: www.opensocietyfoundations.org/press-releases/european-commission-targetsslovakia-over-roma-school-discrimination.

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EP has frequently berated the lack of FR impact assessment in economic governance measures, underlining the reciprocal impacts between social deprivation and the enjoyment of rights. In their 2014 annual Resolution, the EP argued that ‘unemployment, poverty or social marginalisation make it much more difficult, if not practically impossible, for people to exercise the rights and freedoms enshrined in the CFREU’.83 Once again, the political ripples from this critique seems to have had some effect: in 2015, when negotiating a renewed MoU on financial assistance with Greece, the Commission agreed for the first time to subject any new assistance programme to a social impact assessment.

3.3.3 Fundamental Rights in the Ordinary Legislative Procedure The EP carries far stronger powers in the FR domain through its role in the legislative process. This role may be significant not only in terms of the EP’s ability to amend legislation to introduce higher FR standards but also in terms of the ‘shadow of amendment’. The Commission may be prompted to aim legislative proposals at a high level of protection in anticipation of the EP’s likely demands in later decision-making. While this possibility will be discussed in more detail in Section 3.7, EU delegated legislation on body scanners could be such an example.84 In a 2008 Resolution, the Parliament warned the Commission of the likely implications of adopting scanner legislation on rights to privacy and personal dignity, suggesting changes in the legislative process.85 This included the carrying out of an FR impact assessment (something the Commission promised but had not delivered). The EP took the initiative in forwarding the relevant fundamental rights issues to the Article 29 Working Party on data protection and to the EU FRA. The FRA86 and Article 29 party87 confirmed the Parliament’s FR 83 84 85

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Parliament Resolution of 27 February 2014, n. 68 above, at 79. Butler, n. 23 above, 400 and 401. European Parliament Resolution of 23 October 2008 on the impact of aviation security measures and body scanners on human rights, privacy, personal dignity and data protection, 2008/2651/RSP. FRA, ‘The Use of Body Scanners: 10 Questions and Answers’ (27 July 2010). Available at: http://fra.europa.eu/en/opinion/2011/use-body-scanners-10-questions-and-answers. ‘Article 29 Working Party Consultation on the Impact of Body Scanners in the Field of Aviation Security on Human Rights, Privacy, Personal Dignity, Health and Data Protection’ (11 February 2009). Available at: http://ec.europa.eu/justice/data-protec tion/article-29/documentation/other-document/files/2009/2009_05_11_annex_consulta tion_letter_chairman_art29wp_daniel_calleja_dgtren_en.pdf.

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concerns, resulting in final legislation that toughened up the available safeguards (including, for example, the possibility of passengers opting for a less invasive alternative screening procedure). Here, the EP played an important pre-legislative role: a Commission ignoring its concerns would have faced the danger (under ordinary legislation) of EP veto or (in the case of delegated legislation) a revocation of implementing powers. Finally in relation to the legislative process, the Lisbon Treaty significantly re-enforced the role of the EP in relation to international agreements.88 Overseeing the use of executive authority by the Commission in conducting these agreements may be a further important FR role the EP played in its 2009–2014 term, and an area where the Parliament has often had a positive impact on the overall level of FR protection (a claim assessed further in Section 3.7). An example is bilateral Treaties between EU and the United States. In February 2010, the EP rejected the continued application of the SWIFT agreement on exchange of financial data concerning terrorist activities with the United States before later agreeing to a revised agreement.89 Since the SWIFT affair, the EP has passed several Resolutions on Commission efforts to negotiate a renewed PNR agreement with the United States, questioning whether US administrative practice conforms with EU FR and seeking a CJEU opinion on the conformity of the draft agreement on PNR exchange with the Treaty.90 Finally, the EP halted an initial Commission communication of July 2011 on a European Terrorist Financing Tracking facility on FR grounds.91 Responding to heightened public concern over data privacy, the Parliament has been at the forefront of demanding a higher standard of vigilance on the part of the Commission in negotiating international agreements. 88

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See J. Wouter, D. Coppens and B. de Meester, ‘The EU’s External Relations after the Lisbon Treaty’ in S. Griller and J. Ziller (eds.) The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? (Vienna: Springer, 2010), 167–186. ‘SWIFT: European Parliament Votes Down Agreement with the US’ (11 February 2010). Available at: www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+IM-PRES S+20100209IPR68674+0+DOC+XML+V0//EN. European Parliament Resolution of 25 November 2014 on seeking an opinion from the Court of Justice on the compatibility with the Treaties of the Agreement between Canada and the European Union on the transfer and processing of Passenger Name Record data, 2014/2966/RSP. See the significant amendments demands listed in European Parliament Legislative Resolution of 11 March 2014 on the proposal for a directive on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, 2013/0025/COD.

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While the EP’s stance on FR issues vis-à-vis the Commission has therefore often been confrontational, it has played an important FR role in re-enforcing the standing of other FR institutions. In a December 2012 Resolution, it criticised the Commission’s reliance on FR impact assessment, urging the Commission to ‘make systematic use of the external independent expertise, notably from the FRA, during the preparation of impact assessment’.92 The Parliament has consistently been the FRA’s most significant supporter since its inception, both (as will be explored later) requesting the majority of legislative opinions from the agency and making efforts to extend the FRA’s mandate.93 Once again, institutional politics could provide part of the explanation. As will be discussed in Section 3.6, the FRA’s opinions were of some use to the EP in strengthening its bargaining position via its main legislative interlocutor: the Council. The EP has been equally willing, however, to engage the Article 29 Working Party: a group dominated by the Member States. At the very least, the Parliament, unlike the two other main institutions, has made some effort to engage the full range of expert bodies in the Union devoted to collecting data and expertise on FR issues. This type of strategic politics may merely be an indicator of a new and evolving phase in the relationship between the EP and FR. The Parliament may simply be maturing in its FR role, as it has in other areas of the policy process, from a unified institution attempting to secure its institutional position and mandate to a more confident actor, one which seeks not only to ‘objectively monitor’ FR violations but to politicise, deliberate and contest them. As its divisive debates over rule of law monitoring,94 data protection,95 gender equality96 and other issues show, the EP’s engagement with FR plays a role in demonstrating choices and trade-offs regarding FR policies to the general public (choices that the rather depoliticised and managerial rhetoric of the other EU institutions, framed in terms of objective FR ‘impact assessment’, tends to obscure). 92 93

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EP Resolution of 12 December 2012, n. 78 above, at 16. See e.g. in relation to including the access of those in poverty to FR discussed in EP Parliament Resolution of 27 February 2014, n. 68 above, at 84. Parliament Resolution of 16 February 2012 on the situation of fundamental rights: standards and practices in Hungary, 2012/2130/INU (the Tavares Report). ‘Safe Harbour Ruling: MEPs Call for Clarity and Effective Protection’ (15 October 2015). Available at: www.europarl.europa.eu/news/en/news-room/20151015IPR97903/SafeHarbour-ruling-MEPs-called-for-clarity-and-effective-protection. ‘Gender Equality: MEPs Debate Strategy for the Next 5 Years’ (05 June 2015). Available at: www.europarl.europa.eu/news/en/news-room/20150603STO62138/Gender-equal ity-MEPs-debate-strategy-for-the-next-five-years.

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While the contingency and partisan nature of the EP’s engagement with FR would be concerning were it the principal institution within the Union entrusted with FR issues, its role should be understood much more contextually: as the political arm in the EU’s governance of FR. The EP’s ‘politicisation’ of FR – in a divided institutional structure – may offer as many positive as negative elements.

3.4 The Council 3.4.1 Making Council Proposals ‘Fundamental Rights Proof’ Of the EU’s three main political bodies, the Council was arguably the last to ‘join the FR party’. Its first explicit political commitments regarding FR following the adoption of the Charter were made in the context of the 2009 Stockholm programme, laying down new initiatives in the AFSJ.97 This involved a commitment ‘to ensure that legal initiatives are and remain consistent throughout the legislative process by way of strengthening the application of the methodology for a systematic and rigorous monitoring of compliance with the ECHR and the rights set out in the Charter of FR’.98 This was accompanied institutionally by the establishment of the FREMP working party on fundamental rights and citizenship, attached to the Justice and Home Affairs Council.99 This temporary working party eventually evolved into a permanent working group within COREPER. As well as assisting the Council on day-to-day legislative matters dealing with FR, a chief task of FREMP has been to create procedures for addressing the FR implications of Council legislation more systematically (particularly in those limited instances where the Council rather than the Commission is the sole legislative initiator). As a result, the Council adopted, in February 2011, a new methodology to ensure FR were complied with by the Council in its legislative work.100 This reluctance and slowness to adopt procedures for FR conformity may be understandable given the Council’s wider institutional position. As it has done in other areas of integration, the Council could be expected 97 98 99

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See de Schutter, n. 64 above, at 19. European Council, Presidency Conclusions of 10–11 December 2009, at 12. See: www.consilium.europa.eu/en/council-eu/preparatory-bodies/working-party-funda mental-rights-citizens-rights-free-movement-persons/. Council of the EU Guidelines of 18 May 2011 on methodological steps to be taken to check fundamental rights compatibility at the Council’s preparatory bodies, 10140/11.

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to act as a break mechanism, either on the use of the Charter as a centralising and integrationist tool101 or as a tool to harmonise (either upwards or downwards) national variance in FR standards. Here, the Council may mirror the role played by National Parliaments. Their veto, for example, in 2012, of the proposed Monti Regulation, on the grounds that it was in violation of EU competence limitations and the subsidiarity principle, could be seen as reflecting a concern that the fundamental rights prerogatives of the Member States were being unnecessarily interfered with (in this example not only through legislative action, but also via the posted workers litigation of the CJEU).102 This attitude has resulted in some differences regarding the way in which FR are managed, and their impacts assessed, between the Council and the Commission. For example, while the Commission’s IA guidelines (discussed in more detail above) stress their importance and bindingness, the first line of the Council’s FR compatibility guidelines notes that the guidelines ‘should be considered as non-binding advice’.103 In general, the Council’s guidelines are rather thin – they provide a ‘checklist’ but do little to explain key concepts (like proportionality in FR law or the idea of an ‘essence’ of a given FR), which would be key to properly taking into account how the Charter can be legislatively implemented.104 There is a high level of cross-referencing between institutions, which emphasises the importance of the Commission’s own FR assessment – when identifying FR issues, the Council is urged to check the Commission’s own IA for any FR issues raised there. The Council guidelines emphasise three sources of expertise in considering Charter implications – first, that the case law and text of the Charter and ECHR should be checked by the Council official herself; second, that external and internal FR experts should be consulted, such as the human rights handbook of the Council of Europe and the FRA; and, third, that the Council’s own legal service can conduct a compatibility check.105 It is notable that the Council’s guidelines, unlike the 101 102

103

104 105

de Schutter, n. 64 above, at 20. See Euractiv, ‘Brussels Drops Plans for EU Law Limiting Right to Strike’ (14 September 2012). Available at: www.euractiv.com/section/justice-home-affairs/news/brussels-dro ps-plans-for-eu-law-limiting-right-to-strike/. Council of the EU Fundamental Rights Compatibility Guidelines of 19 December 2014 for Council Preparatory Bodies, 5377/15, at 5. A basic explanatory schema is provided in Annex IV of the guidelines. Ibid., 7 and 8.

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Commission’s, explicitly point out the possibility of opinions being offered on proposals by the FRA. Unsurprisingly, the Council’s guidance makes more effort than those of other institutions to emphasise the embedding of FR in national constitutional norms: It is important to make full use of the expertise, knowledge and experience of experts working in the Member States. Contact national experts to clarify outstanding concerns or questions and to gain a better understanding of related national or EU-level legislation.106

In this sense, while the use of IA has been defended as forging a more reflexive and bottom-up form of governance,107 only the Council makes reference to national norms and expertise as being relevant to the definition of ‘what is an FR violation’ or how FR should be addressed within the EU legislative process. As a result of these divergences, the EU institutions do not necessarily carry a similar view of what may make a legislative proposal ‘FR proof’. Both the Council and Commission, for example, adopt ‘checklists’ for officials but they are not identical and carry the capacity of conflict or confusion. While both focus on the Court’s case law, demanding that desk officers identify the affected rights and consider whether they may be limited at all, the Commission’s guidelines focus on comparing policy options. A key step is to identify ‘the impact of the various policy options under consideration on fundamental rights? This step aims at identifying for all different stakeholders concerned any positive impacts (promotion of fundamental rights) or negative impacts (limitation of fundamental rights)?’108 There is a notion here both of retrieving FR from the perspective of affected stakeholders and of comparing policy options according to their FR impact. In the Council guidelines, this comparative step, or the notion of stakeholder consultation, is entirely absent. The focus instead is on the FR impacts of the specific measures in question with the possibility ‘if applicable’ of considering safeguards.109 On the one hand, the ‘check’ suggested by the Council seems less protective; on the other, the danger is that two of the Union’s main institutions will carry different assessments of how FR feature in a particular legislative act. 106 107 108 109

Ibid., at 9. See e.g. de Schutter, n. 64 above, at 17. Commission Operational Guidance, n. 17 above, at 7. Council Guidelines, n. 103 above, at 19.

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3.4.2 Peer Review and the Scope of EU Fundamental Rights This difference is also reflected in the Council’s view of the scope of EU FR. As already noted, the Commission seems to carry a more restrictive view of the Charter’s scope than the EP, confining its enforcement powers to areas with a clear link to EU legislation. The view of the Council may be even more restrictive. In late 2014, the Italian Presidency of the Council included a discussion of the Commission’s new rule of law mechanism, endorsing the position of the Council’s legal service that ‘there is no legal basis in the Treaties empowering the institutions to create a new supervision mechanism of the respect of the rule of law by the Member States’.110 While – as will be explored in Chapter 5 – the Commission’s rule of law framework is highly limited and contains no formal sanctioning powers, even this was rejected by the Council as superseding the Union’s available legal competences. The Council’s preferred means of checking and advancing FR is often instead via peer review and monitoring mechanisms rather than legislative measures, which are likely to impose significant administrative burdens on the Member States. This was the Council’s ‘answer’ to national rule of law violations: a peer review–based ‘rule of law dialogue’ between Member States within the Council itself rather than external monitoring by the Commission or other hard law measures.111 The Council has been equally supportive of other soft law coordination processes that attempt to elaborate national FR without establishing binding commitments: it adopted a recommendation in December 2013 committing the Member States to national reporting and contact points for Roma integration, based on the Commission’s multilateral Roma integration strategy.112 The more cynical of course might question the effectiveness of such voluntary strategies or whether they represent ‘red herrings’, designed to placate the other EU institutions, while doing little to disrupt national policies hindering the enjoyment of FR.113 Assessing the 110

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Council of the EU, Ensuring Respect for the Rule of Law in the EU, 15206/14, 14 November 2014, at 12. Ibid., at 16. Council Recommendation of 9 December 2013 on effective Roma integration strategies in the Member States. Available at: www.consilium.europa.eu/uedocs/cms_data/docs/ pressdata/en/lsa/139979.pdf. See e.g. K. Roth, ‘A Facade of Action: The Misuse of Dialogue and Cooperation with Rights Abusers’, in Human Rights Watch, World Report 2011. Events of 2010 (New York: Seven Stories Press, 2011).

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concrete implementation of the national Roma strategies, a report commissioned by the LIBE committee of the European Parliament published in December 2015 concluded that this process faced ‘severe implementation gaps’. The dearth of political will at all levels of national and sub-national government in Member States is hampering the implementation of the objectives laid out in the NRIS (National Roma Integration Strategies).114

A more positive view would simply see peer review – in light of the idea of sharing and dividing FR responsibilities discussed in the introduction to this chapter – as an additional complement to other mechanisms for the defence of FR. In certain situations – the rule of law example discussed in Chapter 5 – Member States in violation of EU FR standards may be more receptive to advice and pressure originating from fellow governments than from central EU actors seen as distanced from the concern of everyday politics or using EU FR to extend their regulatory power.

3.4.3 Frontex and Agency Governance Finally, when considering the place of the Council in the EU’s fundamental rights framework, it is useful to consider agencies that are largely accountable to the Council. A key example is Frontex, an increasingly important EU agency and one whose budget and operation responsibilities have grown considerably in recent years as a result of the Union’s refugee crisis.115 The shift of much of the AFSJ to the co-decision procedure resulted in considerable pressure for Frontex, and other agencies such as Eurojust and Europol, to integrate FR more closely in its operating procedures. While Frontex’s founding regulation was passed by the Council, the involvement of the EP in its legislative revision in 2011 resulted in a number of procedural changes designed to secure greater FR compliance. The regulation demanded the agency to draw up an FR strategy, a code of conduct, and establish a consultative forum (CF, made up of NGO, FRA and UNHCR representatives) to advise the agency on FR 114

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Evaluation of the EU Framework for National Roma Integration Strategies: Study for the LIBE Committee, at 9. Available at: www.europarl.europa.eu/thinktank/en/document .html?reference=IPOL_STU(2015)536485. In 2015, Frontex received an 18 per cent increase in its budget (dwarfing budgetary increases of other agencies; FRA’s budget, for example, was reduced by 1 per cent). See www.statewatch.org/news/2015/feb/eu-frontex-budget%202015.htm.

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matters.116 The Regulation also mandated the agency to establish a specific ‘fundamental rights officer’ tasked with monitoring possible FR violations in Frontex operations and reporting to the CF and management board.117 This officer is in practice responsible for arranging visits for members of the CF to Frontex operations and installations. Frontex adopted an FR strategy in March 2011. It set an ambitious target: Frontex is to adopt and to display an exemplary attitude based on concrete practical initiatives, and the adoption and promotion of the highest standards in border management practices, allowing for transparency and public scrutiny of its activities.118

The strategy lays out several pillars to achieve this goal. One is a type of impact assessment. Frontex commits to using the FR officer to ensure operational plans are ‘fundamental rights proof’, with the FR situation in third countries fully considered as an element of its risk assessments, prior either to conducting return operations or to outsourcing processing functions, to those states.119 A second pillar is monitoring. Frontex commits to participating in operations only where the implementing Member States can guarantee an effective system for monitoring whether the FR of migrants are respected in joint return operations (JROs), with a transparent system for the reporting of incidents by operational staff.120 A third pillar is training. The agency commits to including FR considerations in its ‘Common Core Curriculum’ for border guards and to conduct training of Frontex and national officials participating in joint operations in cooperation with the FRA and UNHCR.121 A final pillar is creating an implementation strategy for the report itself with annual action plans on FR and their assessment via the CF. How effective has this strategy been since its adoption? The 2014 annual report of the CF may be one guide.122 This report reads as a list of FR measures receiving only minimal levels of compliance. Of nine suggestions and priorities made by the CF in relation to the Agency’s 2015 draft work programme, a full five are reported as receiving zero compliance with only 116 117 118

119 120 121 122

Art. 26 of Regulation 1168/2011/EU. Ibid., Art. 26(3). Frontex Fundamental Rights Strategy (31 March 2011). Available at: http://frontex.eur opa.eu/assets/Publications/General/Frontex_Fundamental_Rights_Strategy.pdf, at 2. Ibid., at 6. Ibid., at 5. Ibid., at 6. Second Annual Report of the Frontex Consultative Forum. Available at: http://frontex .europa.eu/assets/Partners/Consultative_Forum_files/Frontex_Consultative_Forum_ annual_report_2014.pdf.

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two demands fully complied with in the final work programme. Evidence of the incomplete implementation of the strategy can also be found elsewhere. As will be discussed, the EU Ombudsman has been particularly critical of the agency: to give just one example, according to the FRA, while Frontex has adopted a code of conduct for JROs with Member States, the effective monitoring of FR in all JROs does not in practice take place.123 Responding to the FRA, the agency’s management board insisted that FR responsibility during JROs remains the responsibility of the participating Member States rather than Frontex itself.124 A number of major barriers may stand in the way of Frontex’s internal FR strategy achieving the goals originally set for it. One major barrier may be resources. As illustrated by its annual reports, the CF has a highly limited secretariat and meets at most three times per year. This problem also extends to Frontex’s FR officer: as highlighted by the CF report, ‘the Fundamental Rights Officer is considerably understaffed: with just one assistant (partly acting as the Secretary of the Consultative Forum) and a trainee assigned annually, she is not able to fulfil her supporting and monitoring roles to the full extent’.125 A second barrier may simply be the limited influence of FR actors within Frontex on everyday agency activities (an isolation that leads to limited or even distrustful communication between FR officers and the agency’s management). An example of this may be presented via the unusual foreword of Frontex’s management board to the CF’s 2014 annual report. While such forewords often compliment committees like the CF on their valuable work, this foreword is solely devoted to criticising the forum for depictions that, in the management board’s view, may ‘possibly lead to confusion for the general public about Frontex’s responsibilities’.126 In particular, the board criticises the decision of the forum to call for Frontex to establish an individual complaints mechanism: ‘a political demand that extends far beyond the mandate of the Consultative Forum’.127 A final barrier may simply be Frontex’s limited view of its FR responsibilities. The foreword to the 2014 CF report also criticises the inclusion 123

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125 126 127

Contribution of the European Union Agency for Fundamental Rights to the European Ombudsman’s own-initiative inquiry OI/9/2014/MHZ (11 April 2015). Available at: www .ombudsman.europa.eu/en/cases/correspondence.faces/en/59670/html.bookmark. Decision of the European Ombudsman closing her own-initiative inquiry OI/9/2014/ MHZ concerning Frontex, at 10. Consultative forum report, n. 122 above, at 15. Ibid., at 5. Ibid., at 5.

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in the report of incidents (such as the drowning of several refugees near the island of Farmakonisi in 2014) in which Frontex officials were not involved. This example may demonstrate the rather defensive attitude of the agency regarding FR. While the CF does not attribute any responsibility for this incident to Frontex, it does demand accountability for the tragedy, including through national Courts, arguing that the agency should take greater responsibility for deaths at sea, including through managing the response of national authorities. The board and CF seem to differ in their interpretation of the role FR should play in the agency’s work. While for the board, FR are largely a negative duty, i.e. one of ensuring that obvious FR violations are avoided in Frontex activities themselves; for the CF, it is also a positive duty, i.e. to do something about the many FR violations that will occur if Frontex carries an overly conservative, restricted or security-based interpretation of its own mandate. Given these differences, the gap between the CF and the officials managing the agency may result in a less effective FR strategy. The CF was not consulted on the terms of reference for Frontex’s 2015 evaluation, leading to a largely peripheral role for FR in assessing the success of the agency to date in fulfilling its mandate.128 As will be discussed below, external pressure has been necessary to address the gaps in FR protection Frontex’s internal FR strategy has left open.

3.5 Watchdog Institutions 3.5.1 The European Ombudsman as a Fundamental Rights Actor The example of Frontex illustrates the need of a further level of FR institutions in the EU: what the chapter will term ‘watchdog’ bodies. The ultimate watchdog institution in the EU for the delivery of FR must surely be the Court of Justice. As discussed in Chapter 2, the Court has frequently used its judicial review powers to invalidate EU legislation on specific FR grounds. A governance approach, however, demands us to consider the effectiveness of such judgments. As already discussed, CJEU decisions may be the beginning rather than end of a process of political negotiation by which FR are implemented or embedded in new rules. In this task, other institutions can significantly assist the CJEU. 128

Ibid., at 45.

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The most significant of these may be the EU’s Ombudsman (EO). The EO is meant to complement but not substitute for legal review.129 In this sense, the goal of EO action is not legal redress, but creating a more responsive institutional framework, in which the EO and institution concerned can develop procedures that combine functional efficiency with requirements of good administration. As highlighted by the Ombudsman’s statute, ‘as far as possible, the Ombudsman shall seek a solution with the institution or body concerned to eliminate the instance of maladministration and satisfy the complaint’.130 The EO thus attempts to avoid framing complaints and investigations in an adversarial manner. Even if there is a high likelihood of a finding of maladministration, the Ombudsman will normally propose a ‘friendly solution’, acting as an intermediary between the EU institutions and a given complainant. There is also a margin of discretion left to the institution concerned as regards how to offer redress. The EO has often been rather inventive in this regard: see e.g. the Frontex case discussed below, where the EO not only suggested the adoption of an individual complaints mechanism but established contact with officers of the European Investment Bank to train Frontex in adopting a similar complaints mechanism to the one already adopted by the Bank.131 Only if its ‘friendly solution’ is deemed inadequate will the Ombudsman proceed to issue a recommendation, which contains more specific demands. A critical remark, or outright finding of ‘maladministration’, is possible where recommendations are not acted upon.132 Fundamental rights do not appear in the EO’s statute at all, bar a passing reference to the possibility of cooperation with other EU institutions with an FR mandate. Nonetheless, the EO increasingly sees itself as an FR institution. From 2010, ‘a broad concept of maladministration, encompassing legality, fundamental rights and principles of good administration’, was included in the EO’s mandate for the coming parliamentary term.133 In this sense, the EO’s mission is framed increasingly in terms of a twin overall mandate – ‘to serve democracy by working with the institutions of 129

130 131

132 133

On this element to the EO’s role, see P. Magnette, ‘Between Parliamentary Control and the Rule of Law: The Political Role of the Ombudsman in the EU’ (2003) 10 European Journal of Public Policy 5. Ombudsman Statute, n. 2 above, Art. 3(5). Special Report of the European Ombudsman in own-initiative inquiry OI/5/2012/BEHMHZ concerning Frontex, at 50. Ombudsman Statute, n. 2 above, Art. 3(6). ‘Strategy for the Mandate’ (01 September 2010). Available at: www.ombudsman.europa .eu/en/resources/strategy/amp.faces/en/5330/html.bookmark.

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the EU to create a more effective, accountable, transparent and ethical administration’ and to ‘empower citizens by helping them to realize their fundamental rights’.134 The language of rights and of democracy are thus heavily intertwined in the EO’s work, with fundamental rights being seen as pathways to a more open, participatory and democratic institutional structure. As a result, FR have been cited in an increasing number of the Ombudsman’s cases. Of the 46 cases discussed as being ‘particularly significant for the Ombudsman’s strategy’ in a 2013 review of compliance with EO findings, 28 concerned fundamental rights issues.135 Although the EO’s findings and recommendations are non-binding, it offers clear advantages to complainants seeking redress for violations of FR by the EU institutions.136 Firstly, the barriers for access to the EO are extremely low. While complainants before the CJEU face its legendary standing rules, as well as significant resource demands, a complaint to the EO is simply a matter of completing a short online form, with no costs. Secondly, even as a ‘soft’ adjudicator, the rates of institutional compliance with EO findings are high.137 Recommendations and critical remarks received an 80 per cent compliance rate in 2013138 and 90 per cent in 2014.139 Thirdly, unlike the FRA (discussed below), the EO’s founding statute does not significantly delimit the themes or initiatives the EO may pursue and, significantly, provides the EO with its own initiative power.140

3.5.2 The CJEU and the Ombudsman: Working Together to Police Executive Authority? The effects and limits of this element of the EO’s powers may be illustrated by the EO’s long-running investigation of Frontex. In March 134

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136 137

138 139

140

‘Strategy of the European Ombudsman – towards 2019’ (01 November 2014). Available at: www.ombudsman.europa.eu/en/resources/strategy/strategy.faces. ‘Putting It Right? How the EU Institutions Responded to the Ombudsman in 2013’ (25 November 2014), at 9. Available at: www.ombudsman.europa.eu/en/cases/followup.fac es/en/58401/html.bookmark. In 2014, 87 per cent of all EO complaints were lodged by individual citizens. For analysis of the EO’s remedial powers, see A. Tsadiras, ‘The European Ombudsman’s Remedial Powers: An Empirical Analysis in Context’ (2013) 38 European Law Review. ‘Putting It Right 2013’, n. 135 above, at 8. ‘Putting It Right? How the EU Institutions Responded to the Ombudsman in 2014’ (11 December 15), at 8. Available at: www.ombudsman.europa.eu/en/cases/followup.faces/ en/61644/html.bookmark. Ombudsman Statute, n. 2 above, Art. 3(1).

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2012, the EO opened its Frontex investigation, framing it in terms of Regulation 1168/2011, which created new FR responsibilities for the agency. The EO thus played an explicit watchdog role, considering in practice whether FR requirements set down in EU legislation had been met. The EO’s main finding was that while Frontex had made progress in implementing an FR strategy, this strategy lacked one fundamental component: an individual complaint mechanism.141 The lack of such a mechanism ‘meant that Frontex would be less aware of concerns or complaints about the manner in which it operated, and on the other hand, people with complaints did not have the opportunity to have their complaints dealt with directly by Frontex’.142 The EO also engaged seriously with the details of JROs, repeatedly stretching the limits of Frontex’s founding regulations. On the question of who should be returned in JROs, for example, while Article 91 of the Frontex’s founding Regulation seemingly precludes it from questioning the merits of a return decision, the EO suggested that it should do precisely this when relevant EU rules have been obviously disapplied: ‘one would expect a Frontex representative not to tolerate a situation in which such an OMS/PMS presents for return a woman in advanced pregnancy, unaccompanied children or seriously sick persons’.143 Following its investigation into JROs, the EO thus requested a number of changes to its code of conduct including an operational guide for Frontex officers involved in JROs, reiterating its demand for an individual complaint mechanism. Frontex replied that individual incidents were the responsibility of the involved Member States. This response was rejected by the EO, who pointed to relevant CJEU standards demonstrating that JROs triggered at least joint responsibility. The EO concluded that Frontex was engaged in a game of blame-shifting, which those affected by FR violations could not possibly understand.144 Even if ultimate responsibility rested with the MS, a reasonable solution would be for affected individuals to submit complaints to Frontex who could then forward these complaints to 141 142 143 144

See 2012 Frontex Special Report, n. 131 above, at 26. Summary, ibid. Decision OI/9/2014/MHZ, n. 124 above, at 28. ‘The natural and reasonable inference for persons affected by a Frontex operation to draw is that an officer wearing such an armlet is acting under the responsibility of Frontex. Persons affected by a Frontex operation are typically under stress and vulnerable and it cannot possibly be expected from them to investigate what is undoubtedly a complex allocation of responsibility.’ Ibid., at 37.

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national authorities. Frontex repeatedly refused to follow this recommendation. As a result, the EO utilised its power to ask the Parliament to place pressure on Frontex.145 This appeal has had some success. Given its comitology control over the delegation of powers to Frontex, and its needed consent for any changes to Frontex’s founding regulations, the EP does carry some power, even to influence an agency primarily accountable to the Member States. Following the EO’s appeal, the EP adopted a Resolution in December 2015, demanding that the EO’s main recommendations be enacted, including the complaints mechanism, and that Frontex provides greater resources to enable the agency’s FR officer to adequately monitor JRO missions.146 They further asked that third parties, such as NGOs, should be able to submit complaints on behalf of affected complainants. Dimitris Avramopoulos, the Commissioner responsible for migration, promised in his response via a plenary debate on the Resolution to take up the Parliament’s recommendations in a further review of Frontex’s founding regulations in 2016.147 Given the need for Council assent, and the dominance in Frontex’s board of state representatives keen on increasing rather than decreasing the volume of JRO in future years, it remains to be seen whether the EO’s strategy of activating parliamentary pressure is effective. The Frontex example does illustrate, however, the capacity and need for different ‘watchdog’ institutions to work together in order to secure FR goals. A key example is the interaction of the CJEU and Ombudsman to prompt institutional change.148 In the 2014 MTU149 case, the CJEU replied to a national Court that the rejection, within an EU cohesion policy manual, of the possibility of judicial appeal for decisions to reject a subsidy was inconsistent with Article 47 of the Charter. This ruling was complementary to an investigation into FR in EU cohesion policy opened by the EO in May 2014.150 In its enquiry, the EO was highly critical of the 145 146

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See 2012 Frontex Special Report, n. 131 above, summary. See the Press Release of the European Parliament (02 December 2015). Available at: www .europarl.europa.eu/news/en/news-room/20151201IPR05544/Migration-Call-for-a-sys tem-to-process-complaints-against-Frontex-border-guards. Opening Statement by Commissioner Dimitris Avramopoulos during the European Parliament plenary debate on Migration (25 November 2014). Available at: http://euro pa.eu/rapid/press-release_SPEECH-14-2140_en.htm. 2014 Charter implementation report, n. 6 above, at 8. Case C-562/12 Liivimaa Lihaveis MTU, Judgment of 12 September 2014. Own-Initiative Enquiry OI/8/2014/AN on compliance with fundamental rights in the implementation of EU cohesion policy.

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Commission’s interpretation of its legal mandate. Replying to a number of critical remarks on projects funded through ESI funds, the Commission often responded that projects were implemented by the Member States, either denying that the Commission carried direct FR responsibility or arguing that the Member States too were acting outside of the scope of EU law.151 The EO heavily relied on CJEU case law to reject these attempts to evade FR responsibility. As the CJEU had made clear in MTU, a national monitoring committee overseeing operational programmes under ESI is implementing EU law when it draws up a guide for the assistance of grant applicants.152 As such, the EO argued that most national action utilising ESI funds falls under the Charter’s scope. Secondly, the EO argued that, even in areas not constituting ‘implementation of EU law’, the Commission’s duties in relation to FR do not merely evaporate. For those few situations in which Member States’ actions in relation to cohesion funding do not constitute the implementation of EU law, it should still be possible for the Commission to use its influence so as to promote respect for the Charter. The Commission is obliged to respect the Charter in its entirety, in all its activities, including in the distribution and monitoring of ESI Funds.153

In its reply to the EO inquiry, the Commission committed to adopting guidelines for national committees disbursing cohesion and structural funds on mainstreaming FR concerns in their decision-making.154 In this instance, the EO and the CJEU formed a useful alliance in prodding the Commission towards a more assertive reading of its FR mandate.

3.5.3 Fundamental Rights in the Political Process The other main category of EO cases involves complaints brought by individual citizens. Within this category, 20–30 per cent of all complaints relate to transparency.155 This speaks to an important function of EU FR discussed in Chapter 1. EU FR do not simply concern substantive rights violations but balanced representation within the political process. A 151 152 153 154

155

Ibid., 9–20. Case C-562/12, n. 149 above, at 64. Enquiry OI/8/2014/AN, n. 149 above, at 42. Comments of the Commission on the European Ombudsman’s Own-initiative inquiry OI/8/2014/AN, 11–12. Available at: www.ombudsman.europa.eu/en/cases/correspon dence.faces/en/58451/html.bookmark. Putting It Right 2013, n. 135 above, 8–12.

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major cause of FR violations may be a political process in which FR limitations are imposed legislatively without proper consultation or under procedures concealed from the public (as the case studies discussed in this book will evidence). The EO’s actions in relation to transparency complaints may serve three important functions in this regard. The first has been the use of the EO to probe in-transparency in EU policies adopted outside of the normal legislative process. In 2014, following an EO investigation, the European Commission agreed to publish documents, demanded by a Greek journalist, on Greece’s entry into the EU, suggesting possible collusion between Greek and European authorities over whether Greece adequately met EMU’s entry criteria.156 Similarly, 2014 saw the end of a long battle between the EO and ECB over a ‘secret letter’ sent by the ECB to the Irish government, threatening the rescinding of liquidity assistance were Ireland not to seek EU financial assistance (a step that, as Chapter 5 will discuss, led to significant FR infringements in that state).157 While these EO decisions did not provide redress for substantive rights violations, they were instrumental in piercing the veil of secrecy (and of depoliticisation) surrounding economic decisions with significant FR implications. The second has been the use of EO cases to police the relationship between EU decision-making and civil society. Through an own-initiative inquiry, the EO is investigating the balance of representation in civil dialogue groups set up to consider the disbursement of EU agricultural funding.158 In a series of further cases, the EO has criticised the European Banking Authority for imbalanced representation in the 30-member stakeholder group set up to oversee its activities.159 In response, the EBA complied with the EO’s suggestions to diversify the group and redress imbalanced Member State representation within it.160 Finally, the EO has played an important role in policing the Commission’s use of its infringement power. The Commission’s PILOT 156

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‘Ombudsman commends Commission for publishing documents on Greece’s entry into the Euro zone’, EO Press Release 3/2014. ‘Ombudsman welcomes ECB decision to release “Irish ECB letter” ’, EO Press Release 22/2014. Enquiry OI/6/2014/NF concerning the composition of Commission Expert Groups. See EO Cases, 1321/2011/LP, 1875/2011/LP, 1876/2011/LP, and 1966/2011/LP. Follow-up given by the EBA following the European Ombudsman’s (02 May 2011). Available at: www.ombudsman.europa.eu/en/activities/visitreport.faces/en/10921/html .bookmark.

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procedure,161 discussed above, is itself the result of a number of cases in which the EO has upheld individual complaints about delay or obfuscation in complaints to the Commission on national infringements of EU law. The EO notes in its 2013 compliance report that the successful adoption of the procedure led to no new cases involving the registration of infringement complaints in that year (a source of a large batch of previous EO decisions).162 The EO is certainly no radical FR actor. Its rulings do not receive the press coverage of important judicial decisions, nor does it carry tools to override a determined institution willing to resist its FR decisions. Its quiet determination to improve the transparency of policy-making, however, its openness to individual complaints and its non-adversarial and pragmatic working procedures make it an increasingly important and effective element of the EU’s FR architecture.

3.6 Implementing Institutions 3.6.1 Implementing ‘Dynamic’ Rights: The Article 29 Working Party The distinction between ‘watchdog’ and ‘implementing’ institutions concerns the functions performed by particular bodies. The Article 29 Working Party (WP), for example, carries a high degree of institutional independence. It can be considered an implementing institution, however, in so far as its main task is to assist a specific EU institution, the Commission, in elaborating a particular set of FR: the protection of individuals with respect to the processing of their personal data. To this extent, the WP functions are akin to another group of bodies, which will not be extensively discussed but carry a more differentiated state-by-state structure: the equality bodies created to domestically supervise and implement the EU’s equality directives.163 161

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See: http://ec.europa.eu/internal_market/scoreboard/performance_by_governance_ tool/eu_pilot/index_en.htm. Putting It Right 2013, n. 135 above, 10 and 11. Space limitations preclude an extensive discussion of these significant implementing institutions: an existing body of work has, however, discussed them at length. See e.g. B. de Witte, ‘New Institutions for Promoting Equality in Europe: Legal Transfers, National Bricolage and European Governance’ (2012) 1 American Journal of Comparative Law 49; M. Ammer, M. Crowley, B. Liegl, E. Holzleithner, K. Wladasch, and K. Yesilkagit, Synthesis Report: Study on Equality Bodies Set Up under Directives 2000/43/EC, 2004/113/EC and 2006/54/EC (Human European Consultancy, 2010). Available at: www.humanconsultancy .com/Publications/EB%20study%20Final%20Synthesis_Report_EN%2026-01-2011.pdf.

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Like the equality bodies, the Article 29 WP derives its powers from an act of substantive EU law: the EU’s 1995 Data Protection Directive.164 That directive created a unique institution – an independent working party combining both representatives of national data supervisors and EU representatives (in the form of a Commission official and the EU’s own data protection supervisor). The working party carries a higher degree of independence than bodies like the FRA: while its secretariat is provided by the Commission, it carries the power to set its own agenda and has adopted its own rules of procedure.165 The 1995 Directive gives the working party the task of examining the implementation of the EU’s data protection rules, ensuring their ‘uniform application’ at the national level. The WP therefore assists the Commission by informing it of ‘divergences likely to affect the equivalence of protection for persons with regard to the processing of personal data’,166 including the level of protection offered by third countries.167 The WP defends its role on explicit FR grounds and has used this argument to enlarge its competencies. It already, prior to the Lisbon Treaty, commented on a number of pillar matters,168 and currently comments on matters relating to police and law enforcement cooperation,169 in spite of their exclusion from the scope of the data protection directive.170 In effect, its mandate has been stretched far beyond the tasks listed in Article 30, to include commentary on any EU measure (or judicial opinion) with data protection implications. Why does such a body exist for this set of FR and not others, and why has such a wide mandate been accepted by the principal EU institutions? Firstly, as with other policy areas heavily regulated by new governance mechanisms, the high level of functional complexity of the issues regulated via the data protection directive could offer one reason.171 The 164

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Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Available at: http://ec.europa.eu/justice/data-protection/article-29/files/rules-art-29_ en.pdf. Directive 95/46/EC, Art. 30(2). Ibid., Art. 30(1)(b). See e.g. Opinion 3/2007 on the Proposal for a Regulation amending the Common Consular Instructions on visas for diplomatic missions and consular posts in relation to the introduction of biometrics. See Opinion 3/2015 on the draft directive on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences. Directive 95/46/EC, Art. 3(2). On this experimentalist reading of the WP’s foundations, see A. Newman, ‘Innovating European Data Privacy Regulation: Unintended Pathways to Experimentalist Governance’

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dynamic nature of the applicable technology, particularly the technologies available to store and process data from the Directive’s establishment in 1995 to today, produces a dynamic and unstable regulatory environment, with the need to constantly update regulatory practice to fill gaps in national regulation. New technologies – such as the saving of data through clouds, the rise of social media platforms and the possibilities afforded by encryption – offer both the danger of abuse and possibilities for using technology as an ally to automatically restrict unrestrained data flow. The ability of such an expert body to operate on a continuous basis – without the need for a formal legislative process – provides one justification for its work. A second justification, however, may be more institutional in nature. In fact, the WP has skilfully engaged in institutional politics in order to further its mandate and influence. For the Council, the dominance of national representatives provides the WP with a similar rationale as the well-honed comitology process: the presence of national representatives can act as a middle man between national- and EU-level policy preferences, keeping a close eye on how the Commission implements EU rules. The WP has tended to walk a delicate political line in this regard: as well as arguing for higher standards, it has also at times berated the EU institutions for supplanting the regulatory functions of national institutions.172 The WP has been of use, however, to the other institutions too. The EP has regularly consulted and activated the WP in legislative battles with the other institutions. It has arranged parliamentary hearings involving WP members, and cited damning WP opinions to buttress its own legislative resistance to Council-supported measures (on PNR and traffic data173) injurious to FR standards. There is in this sense a strong strategic

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in C.F. Sabel and J. Zeitlin (eds.) Experimentalist Governance in the European Union (Oxford: Oxford University Press, 2012), 37–40. See e.g. the WP’s critique of the Kirkhope report on amendments to the PNR Directive: ‘contrary to what is stated, it is up to national legislators to ensure that effective administrative, civil and criminal enforcement measures are in place for privacy incidents by the airlines, … / (Article 10(a)), to provide all individuals with an administrative means to resolve travel-related inquiries including those relating to the use of PNR data and to provide redress mechanisms for specific cases’. Appendix to Letter on EU PNR to Claude Moraes, Chairman of the LIBE Committee, of 19 March 2015. Available at: http://ec.europa.eu/justice/data-protection/article-29/documentation/other-docu ment/files/2015/20150319__letter_of_the_art_29_wp_on_eu_pnr.pdf. Y. Poullet and S. Gutwirth, ‘The Contribution of the Article 29 Working Party to the Construction of a Harmonised European Data Protection System: An Illustration of Reflexive Governance?’ in O. de Schutter and V. Moreno Lax (eds.) Human Rights in the

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element in the interaction between the WP and the Parliament. The LIBE committee of the EP was, for example, no doubt happy to receive a letter from the WP in March 2015, outlining a number of outstanding FR concerns with the proposed PNR directive, many of which (e.g. requirements relating to the length and scope of data retention and the need for a sunset clause for any agreement) would fortify the EP’s own position in inter-institutional negotiations.174 For the Commission, while these negative opinions may have made the WP a nuisance at a legislative level, this is compensated by the advisory status of its opinions, as well as the use of the WP to check national implementation. An example mentioned by Poullet and Gutwirth is the Commission’s first report on the implementation of the Data Protection Directive, issued in 2003.175 While the report identified serious divergences in national implementation, the WP was used to deploy the tools of peer review, negotiation and persuasion between national supervisors to encourage a more uniform set of EU standards. In doing so, the costly and controversial use of the Commission’s infringement power was avoided. The WP’s expertise and informal internal dialogue – including its use to train supervisors in accession states – can significantly aid the Commission in ensuring the effective application of its data protection acquis. What has the WP done with its powers? A major function has been to develop opinions; 92 opinions on measures affecting the enjoyment of data protection rights were delivered between 2005 and 2015.176 In doing so, it has played a significant role in elaborating FR standards that produce unclear obligations in concrete cases. An important example may be external agreements. As discussed in previous chapters, the EU data protection system allows data transfer to third countries but only where transnational data flow offers ‘adequate protection’ in those states.177 This term is highly unspecified. The WP has also acted as an interface between the public and private sectors. Opinions of the WP relate not only to the revision of EU and national legislation, but also to the adequacy of codes of conduct on

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Web of Governance: Towards a Learning-based Fundamental Rights Policy for the EU (Brussels: Bruylant, 2010), 263. Letter to Claude Moraes, n. 172 above. Poullet and Gutwirth, n. 173 above, at 262. See: http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-rec ommendation/index_en.htm#maincontentSec11. Directive 95/46/EC, Art. 25.

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privacy developed by private networks and corporations. An interesting example is the WP’s relationship with Google, a company with a market share of approximately 90 per cent in EU online searches. Responding to applicable EU legislation and case law, the WP developed a list of requirements and measures that Google could employ in order to comply with EU data protection standards, such as creating an accessible and comprehensive privacy policy, creating default settings which allow optouts from data processing and establishing rules for data processing consent for other online companies utilising Google services.178 Finally, the WP has played a role in specifying and elaborating FR principles established in judgments of the CJEU. The Google Spain judgment, for example, left a number of open questions. What, for example, should be the territorial reach of the ‘right to be forgotten’? How should Google deal with requests from those who gave their consent for information to be available online? And to what extent should a delisting decision include a requirement to inform in advance the publisher of a particular piece of information? All of these questions carry important implications for the concrete realisation of the Court’s ruling, yet (given the complexity of the issues involved and the duty of the CJEU to address primarily the questions explicitly addressed to it) they were not answered in the judgment itself. The WP’s guidelines on the implementation of the judgment seek to provide answers to these regulatory gaps.179 They address the territorial reach of the judgment, arguing that the effective protection of data subject rights requires delisting ‘on all relevant domains, including .com’ and also urge greater transparency on delisting criteria, including detailed statistics on the number of requests accepted and refused. The guidelines in this sense draw consequences for data processing rules from general principles established in the judgment while also pointing to remaining open issues and inconsistencies, which may yet require clarification by the EU legislature. The guidelines were addressed to the EU institutions, to national data regulators and to Google itself (that have since set up an advisory council to aid implementation of the ruling).180 178

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See Letter to Google of 23 September 2014 on Google Privacy Policies and list of possible compliance measures. Available at: http://ec.europa.eu/justice/data-protection/article29/documentation/other-document/files/2014/20140923_letter_on_google_privacy_po licy_appendix.pdf. See Update of Opinion 8/2010 on applicable law in light of the CJEU judgment in Google Spain. The WP has followed with press statements interpreting the Schrems judgment on the validity of the EU-US Safe Harbor agreement. Available at: http://ec.europa.eu/justice/

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How are we to see the Article 29 group’s contribution to the EU’s FR landscape? Critics might question the considerable power the WP possesses. Given its close contact to national supervisory authorities, arguably the WP’s opinions do not restate or interpret but make EU primary law in the field of fundamental rights (with potential implications for the EU’s institutional balance). In spite of its emphasis on the ‘non-binding’ nature of its opinions, the WP’s links to national administrations, its significant expertise in a complicated regulatory landscape and its ability to reach towards the private sector give it considerable power to elaborate FR standards. To this extent, greater public, media and parliamentary scrutiny of its activities may be justified. At the same time, the WP’s power is a reflection of the sore need for such a body to exist. The usefulness of judgments like Google Spain or Schrems rests not in their abstract restatement of the fundamental rights of EU citizens, but in their ability to be translated into practice, either through dominant multinationals willing to change data processing practices of their own accord or regulatory bodies and frameworks able to coerce them into doing so on the basis of specific rules. The WP’s ability to elaborate FR – to translate them into the concrete language of data processing, transfer and control – has placed it at the vanguard of the EU’s attempt to do just this.

3.6.2 The EU’s Fundamental Rights Agency: The Road Not Taken? The EU also, of course, carries a far broader implementing body in the FR field – its Fundamental Rights Agency (FRA), established by Council Regulation in 2005.181 Its roots, however, reach back deeper, via the establishment in 1997 of a European monitoring centre on racism and xenophobia. Following the crisis resulting in the rise of a far-right party to the Austrian government in the late 1990s, the Council had agreed by 2003 to extend the centre’s mandate by establishing an explicit EU agency for fundamental rights.182 This move was supported by the European Parliament (that, unsurprisingly, demanded the agency’s accountability to the EP rather than the Commission).

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data-protection/article-29/press-material/press-release/art29_press_material/2015/201 51016_wp29_statement_on_schrems_judgement.pdf. Council Regulation 168/2007/EC, n. 2 above. On the early debate surrounding the need for an EU FRA, see A. Arnull, ‘Does Europe Need a Fundamental Rights Agency?’ (2007) 32 European Law Review.

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The Regulation eventually establishing the agency was less ambitious than many of its advocates hoped.183 A key question for its creators related to the rationales for EU FR protection discussed in Chapter 1: would this be merely an ‘informational agency’, subordinated to and assisting the EU institutions, or would it carry more extensive powers to monitor FR violations in the Member States themselves, with an independent power of initiative? The 2005 Regulation strongly favoured the former model. The agency was given significant powers to collect and record data, to formulate thematic opinions and to give opinions on specific legislative acts.184 Fearful of any usurpation of its initiative power, however, the Commission ensured that these opinions could only come at the explicit request of an EU institution.185 The scope of the agency’s work was also toned down. A proposal to extend agency monitoring to the third pillar through a separate Council decision was rejected. At the same time, the idea of permanent monitoring of FR abuses in Member States was limited according to the Article 51 formula: ‘the Agency shall deal with the fundamental rights issues in the EU and in its Member states when implementing Community law’.186 In organisation terms, the FRA was given a complicated decision-making structure. As with the Article 29 WP, the FRA’s management board is composed of national representatives drawn from ‘an independent national human rights institution or other public or private sector organization’, as well as two Commission and one Council of Europe representatives.187 This board appoints the agency’s director on the basis of a Commission list and Council and EP opinion.188 Thematically, while the FRA’s founding Regulation does not itself restrict the material scope of the agency’s work (beyond the broad values of Article 2 TEU), Article 5 of the founding Regulation demands that the FRA’s agenda follow a five-year ‘Multi-Annual Framework’ (MAF). The MAF – determining the thematic areas the agency should pursue (with racism and xenophobia as permanent themes) – is adopted by the Council after a Commission proposal.189 183

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See e.g. the position of the ALDE group in the EP, ‘ALDE Disappointed with Lack of Ambition of EU Agency for Fundamental Rights’ (17 January 2008). Available at: www .statewatch.org/news/2008/jan/ep-fra-alde.pdf. Regulation 168/2007/EC, Art. 4. Ibid., Art. 4(2). Ibid., Art. 3(3). Ibid., Art. 12(1). Ibid., Art. 15(2). Ibid., Art. 5(1).

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What are the dangers of the MAF from an FR perspective?190 It could be used by Member States to exclude sensitive topics (on which their activities could be scrutinised) from the FRA’s agenda. Alternatively, the FRA’s work may simply lag behind the ‘issue of the moment’ in terms of FR protection. There is some evidence of this in the MAFs adopted to date. The 2007–2012 MAF did not, for example, include police and judicial cooperation, or social rights and social deprivation, in its mandate, thus excluding two of the major sources of FR concerns during that period (the fight against terrorism and the early onset of the Euro crisis).191 The 2013 to 2017 MAF is broader, including issues such as Roma integration and judicial cooperation (except in criminal matters) in its ambit.192 Yet again, however, social rights – what will be discussed in Chapter 4 of this book as perhaps the most pressing human rights crisis of the period – were not included. How significant is this limitation in practice? Like other institutions, the FRA has engaged in its own variety of mandate stretching. To this extent, those FRA officials interviewed for this book did not see the MAF as posing a serious constraint on the agency’s activities.193 A way around this, for example, may be through the EU’s traditional spill-over effects: in spite of the exclusion of criminal matters from the MAF, the agency has collected data, and even gone as far as to establish a specific working party, on hate crime, interpreting this as falling within its anti-discrimination rather than judicial cooperation mandate.194 The FRA has also acted to extend its mandate in other ways. A first attempt was the adoption of the Lisbon Treaty in 2009. The FRA’s exclusion from third pillar matters is subtly stated in its founding Regulation with reference to ‘Community law’.195 This created some ambiguity following Lisbon’s ratification – the abolition of the European Community Treaty and re-entry of many third pillar matters into the normal Community method questioned the original exclusion of 190

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Contra the charge that the FRA may be a ‘half-Charter’ agency, see G. Toggenburg, ‘Fundamental Rights and the European Union: How Does and How Should the EU Agency for Fundamental Rights Relate to the EU Charter of Fundamental Rights?’ (2013) EUI Working Papers (Law) 13, at 8. See FRA Mission and Strategic Objectives 2007–2012. Available at: http://fra.europa.eu/ sites/default/files/fra_uploads/459-FRA-mission-strategic-objectives_en.pdf. Multi-Annual Framework 2013–2018. Available at: http://fra.europa.eu/sites/default/fil es/fra_uploads/459-FRA-mission-strategic-objectives_en.pdf. Interviews, EU FRA Vienna, May 2015. See: http://fra.europa.eu/en/project/2015/working-party-improving-reporting-and-rec ording-hate-crime-eu. Regulation 168/2007/EC, Art. 3(1).

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the FRA from these areas. The FRA, unsurprisingly, drew the conclusion that Lisbon had simply deleted this limitation.196 The agency has thus conducted a number of tasks that are not expressly suggested via its founding Regulation. Just as the Commission, for example, has conducted forms of ‘post-legislative’ guidance, advising Member States on how they can implement EU legislation in a manner consistent with FR, so the FRA has conducted similar exercises. It published in 2013 fundamental rights guidelines for officials apprehending irregular migrants (analysing EU legislation and case law197) and in 2014 published ‘twelve operational fundamental rights considerations’ for officials processing PNR data.198 While this is certainly not legally binding advice, it represents an attempt to define and concretise legal obligations akin to the Commission’s own post-legislative work. The agency has also taken a liberal view of the concerns expressed by the Member States regarding national monitoring. While the FRA has not published opinions on FR violations pertaining to specific states, it has published national country studies across the EU Member States, on issues such as homophobia, human trafficking, access to justice, Roma integration and mental health, among others.199 These reports focus on best practices, yet also often adopt a highly critical tone drawing on interviews with victims to criticise national policy (with over 40,000 women for example interviewed for the FRA’s 2014 report on gender-based violence).200 How effective has the FRA been in meeting its tasks?201 The FRA’s founding Regulation provided for periodic review of the agency, with a comprehensive external review published in 2012.202 The FRA’s 2012 196

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See e.g. the FRA’s 2013 position paper on AFSJ matters. Available at: http://fra.europa .eu/sites/default/files/fra_submission_on_the_future_of_eu_justice.pdf. See FRA Document, ‘Apprehension of Migrants in an Irregular Situation – Fundamental Rights Considerations’. Available at: http://fra.europa.eu/sites/default/files/fra-2013-ap prehension-migrants-irregular-situation_en.pdf. FRA Document, ‘Twelve Operational Fundamental Rights Considerations for Law Enforcement when Processing PNR Data’. Available at: http://fra.europa.eu/sites/defau lt/files/fra-2014-fundamental-rights-considerations-pnr-data-en.pdf. See: http://fra.europa.eu/en/publications-and-resources/country-data. See: http://fra.europa.eu/en/publication/2014/violence-against-women-eu-wide-sur vey-main-results-report. For some academic assessments, see A. von Bogdandy and J. von Bernstrorff, ‘The EU Fundamental Rights Agency within the European and International Human Rights Architecture: The Legal Framework and Some Unsettled Issues in a New Field of Administrative Law’ (2009) 46 Common Market Law Review 4; Toggenburg, n. 190 above, 13. Regulation 168/2007/EC, Art. 30.

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evaluation was positive.203 It also, however, argued for further increases in its powers, frequently citing stakeholders and EU officials complaining about the agency’s lack of independent powers either to issue independent legislative opinions or to raise infringement actions against Member States in violation of FR in their implementation of EU law.204 The evaluators thus concluded that an extension of the FRA’s mandate to include such powers, as well as greater use of national monitoring, should be considered by the EU institutions.205 This effort has thus far been less successful, with no concrete plans as of yet to make any of these changes. An explanation may lie in the underutilisation of the FRA’s existing powers by the EU institutions to date. Some indication of the attitude of the Commission towards the agency is illustrated in quotes from the FRA’s 2012 evaluation. Asked whether FRA is useful as a provider of FR information in response to citizen or institutional requests, a desk officer of the Commission replied: ‘they are not able to deliver on short notice, we know that. This is not really an issue for us, it is not necessary. We have actually never asked them. What FRA is doing is something that runs over a longer period of time.’206 The author’s own interviews in the Commission confirmed that the FRA was seen as useful and competent but an actor that was seldom engaged with on top of other sources of FR expertise (such as the legal service).207 Given that the provision of high-level information to the Commission could be seen as one of the agency’s primary functions, this does not bode well for efforts to extend the FRA’s mandate. The FRA has also struggled in terms of its awareness-raising functions. As listed in its founding Regulation, a major function of the agency is to transcend the danger of EU FR becoming an elitist exercise of lawyers and officials, distanced from the citizens they serve.208 The FRA can legitimately claim a number of successes in relation to this objective.209 As outlined in later chapters, a lack of understanding of FR responsibilities, and how to apply EU FR in national legal orders, can act as a severe hindrance on the 203

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Evaluation of the EU Agency for Fundamental Rights, November 2012. Available at: http://fra.europa.eu/sites/default/files/fra-external_evaluation-final-report.pdf. Ibid., at 31. Ibid., at 98. Ibid., at 36. Interviews with Commission officials, May 2015. The FRA should thus (Regulation 168/2007, Art. 4(1)(h)) ‘develop a communication strategy and promote dialogue with civil society, in order to raise public awareness of fundamental rights’. See also 2012 Evaluation, n. 203 above, 77–80.

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effective application of the Charter. To tackle this, the FRA has been at the forefront of projects designed to assist either judges or individual citizens on how to apply Charter rules. Its ‘Clarity’ project provides an online tool through which citizens can specify FR violations and receive information on which bodies at EU or national level may be able to provide redress.210 A related project for public officials, ‘Joining-up’, provides online information on how national and regional administrations can integrate EU FR into policy-making.211 Finally, the FRA has produced handbooks on anti-discrimination212 and immigration and asylum law,213 summarising relevant EU and ECHR jurisprudence and providing practitioners with guidance on how to rely on the Charter in national litigation. The broader objective of informing citizens rather than elite publics remains challenging, however, if not an outright failure. Eurobarometer 416 illustrates the poor levels of public knowledge of the Charter, levels that are basically unchanged in the last 3 years.214 In 2015, only 14 per cent of EU citizens were familiar with the EU Charter and could describe what it was (up from 11 per cent in 2012). Only 13 per cent could correctly identify the Charter’s scope of application (1 per cent less than could do so in 2012). This lack of knowledge is backed up by the Commission’s 2014 report on the Charter: some two-thirds of letters addressed to the Commission from members of the public on FR concerned issues outside of the scope of the Charter.215 The EU institutions themselves fare little better: of 464 questions from the EP, 168 were deemed by the Commission to fall outside of EU competence. As well as raising the awareness of the general public, the FRA may have to direct some more of its educational resources in future towards its fellow EU institutions. Finally, challenges remain in relation to the FRA’s function in providing opinions. For all of the work of the other institutions (highlighted above) in making their proposals ‘fundamental rights proof’, there remain question marks over whether these institutions are sufficiently independent to objectively verify whether their proposals comply with 210 211 212

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See: https://fra.europa.eu/clarity/en/tool. See: http://fra.europa.eu/en/joinedup/home. See: http://fra.europa.eu/en/publication/2011/handbook-european-non-discrimina tion-law. See: http://fra.europa.eu/en/publication/2013/handbook-european-law-relating-asy lum-borders-and-immigration. Flash Eurobarometer: The Charter of Fundamental Rights of the Eu. Available at: http:// ec.europa.eu/justice/fundamental-rights/files/2014_charter_eurobarometer_en.pdf. 2014 Report on Charter Implementation, n. 6 above, at 24.

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FR. One could go even further: given that bodies like the European Parliament and (increasingly) the Commission are supposed to respond to the mandates of their voters, there is a real risk of conflict between this politicisation and abstract FR review. FRA opinions on legislative proposals could address this gap: providing a neutral perspective on FR impacts of legislation that is nonetheless non-binding, and which frames rather than excludes a wide range of legislative options. The power ‘of request’ has been significantly underutilised. From its founding to the end of 2015, the FRA has produced only nine legislative opinions: one at the request of the Commission, two at the request of the Council and the remaining six at the request of the Parliament.216 Strategic reasons may provide a good explanation of institutional reluctance. While the Commission, the legislative initiator, may be seen as the actor with the greatest rationale for requesting an opinion, a critical opinion from the FRA would likely leave its proposal open to political attack. For this institution, the FRA is likely to be a destabilising force. For the EP on the other hand, opinions could work to the institution’s political advantage. All of the EP’s FRA requests concern complicated legislative proposals, with the EP in battle with the Council, either to pass a proposal facing significant national resistance (see e.g. the examples of the European Public Prosecutors Office217 or proposed Regulations on property consequences of registered partnerships218) or to resist a proposal favoured by the Council but treated with trepidation by the EP on FR or other grounds (see e.g. the examples of PNR data and the European Investigation Order219). In these examples, in so far as EP positions reflect higher standards of FR protection (a claim further examined below), an FRA opinion highlighting FR concerns could either place more effective pressure on the Council to bow to amendment demands or (see e.g. the PNR example) provide legal justification for the EP to reject a legislative proposal altogether. These dynamics can help us understand better the role of the FRA in the governance of EU fundamental rights. It is little surprise that the agency has pushed for an independent power of opinion. As it stands, its 216 217

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See: http://fra.europa.eu/en/publications-and-resources/opinions. On the legislative rivalry over this proposal, see: www.europarl.europa.eu/RegData/etu des/ATAG/2015/565893/EPRS_ATA(2015)565893_EN.pdf. Commission Communication, Bringing Legal Clarity to Property Rights for International Couples, COM (2011) 125. On the status of this proposal, see: www.europarl.europa.eu/oeil/popups/ficheproce dure.do?lang=en&reference=2010/0817%28COD%29.

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opinions are very much blowing in the wind: either the specific legislative input of the agency is ignored or it is activated only in so far as it can be used to serve expressly political goals. In the absence of the EU institutions rectifying this gap (e.g. through amending the agency’s founding regulation), a closer relationship with the EU institutions, in particular the EP, is likely to be the best route towards an EU FRA with an active role in the EU’s legislative process.

3.7 The EU Institutions and the Standard of FR Protection: Tracing Two Legislative Proposals 3.7.1 Data Protection and PNR: The Legislative Context How do all of these institutions interact? And to what extent does their interaction lead to standards of FR protection being lowered or weakened (and by whom)? To address these questions in a more systematic manner, this section will trace two key EU legislative proposals with an important fundamental rights dimension that have only recently been agreed: the EU’s Directive on the use of Passenger Name Record data (henceforth ‘PNR Directive’220) and its General Data Protection Regulation (henceforth ‘GDP Regulation’221). These two pieces of legislation carry different backgrounds and different objectives in relation to FR. For the PNR Directive, the aim is security related and dates back to transatlantic cooperation on the fight against terrorism following the 9/11 attacks. This is reflected in the Directive’s legal bases, which relate to police cooperation and the sharing of data to fight crime.222 The Directive’s ancestor is an agreement negotiated between the EU and the United States in 2004 that mandated airlines departing from the EU to provide passenger name and other data to the US Department of Homeland Security. The agreement was invalidated by the CJEU in 2006 on the grounds that it was founded on an inadequate legal basis.223 A new agreement was signed in July 2007, accompanied by a Framework Decision submitted for approval to the European Parliament to allow PNR data 220

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Proposal for a Directive on the use of Passenger Name Record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime, COM (2011) 32. Proposal for a Regulation on the protection of individuals with regard to the processing of personal data and on the free movement of such data, COM (2012) 11. The legal bases given in the proposal are Articles 82(1) & 87(2) TFEU. Joined Cases C-317/04 and C-318/04 European Parliament v Council & Commission (2006) ECR I-04721.

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collection for international flights originating in the EU. Given the impending ‘communitarisation’ of police and judicial cooperation via the Lisbon Treaty, the EP declined to vote on the original decision. The year 2013 saw a renewed push for the Directive’s agreement. By this point, however, significant divergences had appeared between the positions of the Council and EP. In the Commission’s consultation on the proposal, several Member States had pushed for the Directive to be given a broader scope. Six states wanted land travel to be included along with air travel, with 18 states favouring the inclusion of sea passenger data.224 A number of Member States further demanded that the proposal include the collection of PNR data on intra-EU as well as international flights.225 The EP, on the other hand, raised a number of FR objections. The LIBE committee rejected the Commission’s proposal outright in a 30–25 vote in April 2013, arguing that the length and proportionality of data retention under the draft was inadequate and that intra-EU flights should not be included. This institutional stalemate is important to keep in mind when considering the legislative negotiations on the proposal’s FR dimension discussed below. The GDP Regulation on the other hand – while also contested – carries a different relation to FR and a different legal basis. Unlike the PNR Directive, rights, particularly the right to data protection, constitutes one of the Regulation’s core objectives. The Regulation carries a dual legal basis – both the protection of personal data under Article 16(2) TFEU and the approximation of laws necessary for the functioning of the internal market under Article 114. The Commission’s first proposal was published in January 2012, accompanied by a Directive on the processing of data for law enforcement purposes. The original rationale for the Regulation focused closely on the internal market dimension. The Commission’s original IA, for example, argues that such a Regulation is necessary given significant diversity in national data protection laws, such that individuals and companies do not carry the confidence necessary in data processing rules to fully realise a single digital market in Europe.226 The political context for the proposal was, however, radically upended by Edward Snowden’s revelations of the extent of European complicity with US government eavesdropping on 224 225

226

See: www.statewatch.org/analyses/no-70-eu-travel-surveillance.pdf. ‘Member States to Clash with European Parliament on Passenger Data’, EU Observer (04 April 2011). Available at: https://euobserver.com/institutional/32109. Commission Staff Working Paper on the General Data Protection Regulation, SEC (2012) 73, 2 and 3.

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citizens in June 2013. The Snowden debate radically politicised the proposal with the LIBE committee’s compromise agreement demanding a significant FR upgrading of the proposal through a Resolution passed in October 2013, led by a Green MEP rapporteur with a legislative history of pursuing a strong civil liberties agenda.227 The Council was far more reticent with a number of delegations indicating concerns that the proposal’s implementation would impose high regulatory costs both on national regulators and on business.228 In this sense, while these proposals carry different political contexts, they also share a great deal in common. Firstly, they are proposals that faced significant institutional contestation and that were agreed only with real difficulty. Secondly, a great deal of that contestation focused directly on the level of FR protection the proposals should provide. Finally, and of particular relevance to this section, institutional discussion on the proposals was not confined to the EU’s official institutions but also concerned some of the assisting FR institutions discussed above. Both the Article 29 WP229 and the EU FRA230 were heavily involved in both proposals, with the EP requesting an FRA opinion on the compliance of the Commission’s original proposals with the FR guarantees laid down in the Charter. These FRA opinions provided the basis for the process tracing of these proposals conducted in the following section. Assuming that the FRA aimed in its opinion for a high level of FR protection, to what extent were its recommendation on making the proposals compliant with the Charter fulfilled by the other institutions?

3.7.2 Improving the Standard? Legislative Interaction on Fundamental Rights The FRA made 10 principal recommendations in relation to PNR and 13 recommendations on the EU’s data protection package.231 For the PNR 227

228

229 230

231

‘LIBE Committee Vote Backs New EU Data Protection Rules’ (22 October 2013). Available at: http://europa.eu/rapid/press-release_MEMO-13-923_en.htm. On the issue of compliance costs, see K. Wynn, ‘Data Protection Impact Assessments – When Will EU Businesses be Required to Carry Them Out?’, Outlaw Blog (20 January 2015). Available at: www.out-law.com/en/articles/2015/january/data-protection-impactassessments–when-will-eu-businesses-be-required-to-carry-them-out/. See Opinion 01/2012 on the Data Protection Reform Proposals. FRA Opinion 1/2011 on the Proposal for Directive on the use of passenger name record data; FRA Opinion 2/2012 on the proposed data protection reform package. The total number of recommendations on the latter package was higher, but many related to the second proposal on data collection for the purposes of combating crime and thus have been excluded from the analysis.

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Directive, the main concerns of the FRA related to discrimination. According to the FRA, the Commission’s proposal did not adequately consider (including in its initial IA) whether the collection of PNR data could lead to individuals being targeted on the grounds of ethnic or other origin, or include adequate safeguards to prevent this.232 The proposal was also seen as insufficiently limited in scope as a result of its failure to restrict data collection to serious crime or include more specific criteria on data specifically excluded.233 The FRA also made a number of other suggestions, from aligning the proposal more closely to the wording of specific Charter articles234 to demanding that Member States collect statistical data on the amount of passenger records stored (thereby making ex post evaluation of the Directive’s FR impacts easier).235 For the GDP Regulation, the FRA’s opinion focused on the balance between data protection and other rights ensured under the Charter. The FRA argued that the current exemption allowing data to be processed and stored for journalistic purposes was insufficiently broad and ought to be replaced by the broader notion of freedom of expression protected under Article 11 of the Charter.236 The FRA were also concerned with other issues – for example, the high number of envisaged delegated acts,237 which themselves could restrict Charter rights, extending the definition of restricted ‘sensitive data’ to include data related to sexual orientation,238 and improving the adequacy, access rules and penalties available within redress mechanisms for breaches of the Regulation’s provisions.239 In Tables 3.1 and 3.2, these recommendations have been listed numerically. The adjacent columns indicate the positions of each institution in relation to each of these recommendations. The first column indicates the position of the European Parliament, while the second indicates the general approach of the Council prior to Trilogue meetings.240 The final column 232 233 234 235 236 237 238 239 240

Opinion 1/2011, n. 230 above, at 7. Ibid., at 13. Ibid., at 7. Ibid., at 9. Opinion 01/2012, n. 229 above, 12–15. Ibid., at 10. Ibid., at 22. Ibid., 27–31. For the PNR Directive, LIBE’s Orientation vote of 15 July 2015 and the Council’s General Approach of April 2012 are taken as reference points. The tables comparing institutional positions for the purposes of trilogue are available here: www.statewatch.org/news/2015/jul/ eu-pnr-trilogue-multi-col.pdf. For the GDP Regulation, the reference points are the EP agreement on first reading of 12 March 2014 and the Council’s General Approach of 8 July 2015 (see: www.statewatch.org/news/2015/dec/eu-council-dp-reg-draft-final-compromise15039-15.pdf).

Table 3.1 Fundamental Rights in the PNR Directive FRA Consideration 1. Transmission of information relating to direct discrimination 2. Discriminatory profiling 3. Post-legislative review and indirect discrimination 4. Collection of statistics 5. Limitations of fundamental rights: ‘General remarks’ ‘Minor offences’ ‘Relevant databases’ 6. Necessity and proportionality of the PNR system 7. Limitation to ‘serious (transnational) crime’ 8. Limitation of list of serious crimes 9. Systematic v. targeted flagging of travellers 10. Independence and powers of supervisory authorities

European Parliament (LIBE)

The Council

Compromise after the Trilogues

Not adopted

Not adopted

Not adopted

Adopted Not adopted Adopted

Partly adopted Not adopted Adopted

Adopted Not adopted Adopted

Not adopted Adopted Adopted Partly adopted Adopted Adopted Not adopted Adopted

Not adopted Adopted Partly adopted Not adopted Not adopted Adopted Partly adopted Not adopted

Not adopted Adopted Partly adopted Partly adopted Not adopted Adopted Partly adopted Adopted

Table 3.2 Fundamental Rights in the General Data Protection Regulation FRA Consideration

European Parliament

The Council

Final Compromise

1. A general reference to the Charter 2. Restrictions on delegated and implementing acts limiting fundamental rights 3. Sharing of information with third countries 4. Derogations for the purpose of freedom of expression and information 5. References to specific Charter articles (Articles 13, 18 and 21 CFREU) 6. Additional protections relating to the Rights of the Child 7. Access to documents, as prescribed by national legislation 8. ‘Sexual orientation’ in the list of sensitive data 9. Derogations for the collection of statistical data 10. Compatibility with UN Convention on the Rights of Persons with Disabilities 11. Sensitive data and profiling 12. Legal standing for organisations acting in the public interest 13. Safeguards relating to the nomination and independence of DPA members

Adopted Not adopted

Partly adopted Not adopted

Partly adopted Not adopted

Adopted Partly adopted

Adopted Partly adopted

Adopted Partly adopted

Not adopted

Not adopted

Not adopted

Partly adopted Adopted Adopted Not adopted Not adopted

Not adopted Adopted Not adopted Partly adopted Not adopted

Partly adopted Adopted Adopted Partly adopted Not adopted

Adopted Not adopted Partly adopted

Adopted Not adopted Partly adopted

Adopted Not adopted Partly adopted

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indicates whether a recommendation made its way into the final compromise text. The categories used are adoption (where the recommendation has been implemented or proposed in full with only minor modifications), non-adoption (where it did not find support) and partial adoption (where the FRA’s recommendations have been proposed or included, but not in full). This schema allows us to observe whether the legislative process increases or decreases the level of protection provided for in the initial proposal, and if so, which institution might be responsible. While this is only two proposals (the tracing of which is already a considerable task), a number of observations can be drawn by observing the evolution of both processes. The first – and perhaps most important – is that the legislative process led to the level of FR protection under both proposals being improved beyond that provided for via the initial Commission proposal. Out of 10 FRA recommendations on the PNR Directive, seven were implemented partly or in full; for the GDP Regulation, nine out of 13 were implemented partly or in full. A second observation is that where the positions of the two main legislative institutions clash, the European Parliament is likely to be the more protective of FR. For the PNR Directive, this was the case for five out of the six cases where the institutions took different positions. For the GDP Regulation, this was the case in three out of four instances of disagreement. In this sense, the institutions are more likely to agree than disagree on the FR implications of legislation yet high levels of FR protection seem to be given higher priority by the EP. At the same time, we do not see a uniform picture – on some of the central questions raised by the FRA, i.e. the question of targeted versus systematic approaches to the criteria used to flag travellers, it was the Council that took the initiative in introducing amendments to meet the FRA’s concerns. A final observation when reading these tables is what occurs where positions clash. As would be expected, disagreements between the institutions are often resolved via compromise with articles as reflective as possible of the concerns of both institutions being drafted. Nonetheless, where the positions of the two legislative branches clashed, in most cases the final text reflected the position more protective of FR. In the six cases of clash under the PNR Directive, the institution proposing a more protective approach succeeded in four out of six cases; for the GDP Regulation, the more protective approach won out in three out of four cases of conflict. While this is a relatively small sample, it gives some indication that arguments for a higher level of FR protection may be

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difficult to overcome in legislative negotiation (e.g. in the trilogue process in which the Commission is also present). Going beyond these tables, some further observations can be drawn from these two particular processes. The first is that – while the Commission’s ex ante reviews via IA should anticipate potential FR issues arising in legislative proposals – these two examples illustrate how poorly this process often works. Some of the major FR-related discussions deliberated upon by the EP and Council, for example the issue of FR violations in delegated acts, of the sharing of sensitive data with third countries, or of the independence of data protection authorities under the GDP Regulation, were not considered all in the original IA.241 In total, the Commission’s 240-page IA for this Regulation carried a total of two pages devoted to FR impacts (for a piece of legislation for which the protection of FR was a key goal).242 The second, however, is that institutional interaction can nonetheless lead to the FR issues ignored by the Commission being taken up by other institutions. An example of this is an issue where the interests of both institutions tend to align against that of the Commission – the elaboration of the GDP Regulation through delegated and implementing acts. The Commission’s original proposal contained 26 delegated and 22 implementing acts.243 The final text removed the majority of these provisions, a shift also recommended by the FRA given the possibility of departures from FR via such acts (which could not be easily deliberated by the other institutions). The final proposal, furthermore, allows the European Data Protection Board to offer opinions on the necessity of such acts.244 In this example, as with a number of others in both proposals, the legislative institutions do not simply rely on the initial IA but raise new FR protections via the legislative process. Finally, these proposals indicate that the legislative process – and the consideration of FR within it – is not only dominated by the Union’s three official institutions but can also be moulded from the outside. One element of this, observed in both proposals, is the influence of the Article 29 WP. There is some evidence that the WP significantly lobbied the 241 242 243

244

Commission Staff Working Paper, n. 226 above. See Annex 7, ibid., ‘Analysis of the Impacts of Policy Options on Fundamental Rights’. Council Presidency Note on Delegated and Implementing Acts, 8833/15 of 13 May 2015. Available at: www.statewatch.org/news/2015/may/eu-council-dp-reg-delegated-imple menting-acts-8833-15.pdf. See Art. 66 of the compromise text of the GDP Regulation. Available at: http://state watch.org/news/2015/dec/eu-council-dp-reg-draft-final-compromise-15039-15.pdf.

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LIBE committee of the EP to respond to some of the FRA’s concerns. In a March 2015 letter, the WP urged the LIBE committee to significantly improve the level of protection offered under the PNR Directive, questioning whether the scope of offences and the time period for retention of PNR data were sufficiently limited.245 A major issue at the time of the letter was the decision of the proposal’s Parliamentary rapporteur to acquiesce to the Council’s proposals to include intra-EU flights in the PNR collection scheme – a measure whose proportionality was questioned by the WP. The outcome was that the rapporteur’s proposals were rejected by the LIBE committee, with an amended report, rejecting the inclusion of intra-EU flights, being approved in July 2015. The final compromise text permits but does not oblige Member States to extend the Directive’s terms to intra-EU flights (but demands that they notify the Commission when doing so).246 This example again illustrates a point made earlier. There remains a significant dispersion of power within the EU legislative process – a dispersal that allows FR considerations ignored by some institutions to be brought to light by others (the result being most often a compromise that at least attempts to frame EU legislation in a manner compatible with FR).

3.8 Conclusion These legislative proposals give some indication that the EU’s decisionmaking framework can improve the enjoyment of FR provided for via EU secondary law. In that sense, while the chapter has pointed to many deficiencies in relation to the FR performance of particular institutions, the interaction (and even competition) between institutions can limit the impacts of measures seeking to restrict FR. Looking across institutions, the comparative overview conducted above shows an institutional landscape in which different branches of EU governance are beginning to divide and share responsibilities in relation to FR. Whereas the Commission channels its FR strategy largely through the instrument of ex ante impact assessment, and the attempt to ‘mainstream’ FR within other EU policies, the Parliament’s role has often 245 246

Letter from the Chair of the Article 29 WP to the LIBE Committee, n. 172 above. See Art. 1a of the compromise text of the PNR Directive. Available at: http://statewatch .org/news/2015/dec/eu-council-eu-pnr-final-compromise-14670-15.pdf.

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been to publicise and politicise FR violations, bringing otherwise ignored issues to the political attention of the other institutions. The Council has been more reticent, both questioning attempts by the EU to harmonise national FR standards and channelling FR through the mechanism of peer review. Outside of the three main institutions, a new institutional landscape for FR protection has emerged: institutions whose very existence depends on enlarging the EU’s FR competencies. It may be these institutions – rather than the EU’s traditional triumvirate – that are at the dynamic cutting edge of international FR protection. Implementing institutions, like the Article 29 WP, have been crucial in giving concrete content to rights that can be made redundant by rapid societal and technological change, extending the reach of EU FR into the private sector in the process. Meanwhile, watchdog institutions, like the EO, have complemented the traditional oversight activities of the CJEU in the FR field with the tools of an institution able to work with other EU bodies to progressively improve, rather than simply overturn, their practices in the FR field. The cumulative effect is an institutional architecture of greater sophistication, and with a higher capacity to rectify FR violations, than at any point in the EU’s past history. A final note of caution is deserved. While this institutional diversity displays strength in rectifying FR violations forwarded by others (either intentionally or neglectfully), a crucial limitation may be its capacity to place new issues on the table, to be proactive rather than reactive in FR policy.247 The scramble of the current EU to meet the challenges of the refugee crisis may be one indication of an FR structure that is too often one step behind current developments, and too limited in its ambitions not merely to prevent FR violations within EU states, but to build institutional frameworks and policies that promote the rights protected under the Charter. The Commission may be particularly singled out in this regard – the danger of its focus on IA (exacerbated by its rather conservative view of its Charter mandate) is that FR are too often seen in light of other EU policies rather than promoted in and of themselves. To examine this danger, it may be useful to look in more depth at two areas where the EU has been caught unaware in relation to FR: where political developments have stretched the institutional framework highlighted above to breaking point, leading either to demands for 247

This was of course a key observation of Alston and Weiler too, n. 3 above, 10–14.

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institutional adaptation or the sidelining of the EU’s institutional framework altogether. How has the institutional structure discussed above – in theory, displaying considerable strength – performed in relation to concrete sets of rights? The following two chapters will answer this question with reference to social rights in times of economic crisis and (the subject to which we will now turn) recent crises relating to the rule of law.

4 Governing Justice and the Rule of Law

4.1 Justifying EU Rule of Law Oversight What kind of justification exists – legal, moral or political – for EU oversight in the area of justice and the rule of law? The principal reasons are worth exploring. The first is the most formalistic: that common European standards in the field of justice and the rule of law are explicitly mandated by the Treaty, such that the EU carries not just a possibility but a duty to act. This seems to apply to a limited extent. Many of the EU’s most foundational values are listed in Article 2 TEU yet it is unclear whether these values are directly justiciable. Proposals suggest that they ought to have been subject to significant criticism.1 At the very least, Article 3(1) of the Treaty urges the EU institutions to ‘promote’ the values listed in Article 2. It is unclear once again, however, whether ‘promotion’ is sufficient to justify the imposition of legally binding acts in national legal orders. Those justice rights contained in the Charter are subject to the scope limitations – extensively discussed in Chapter 2 – contained in Article 51 CFEU. Article 51 is a real limitation: for many of the most significant rule of law challenges, Article 51 seems to promote indirect and arbitrary enforcement. Those elements of national policy threatening fundamental rights linked to EU law can be challenged; those not linked cannot be. As we will explore, many of the most blatant violations of rule of law standards currently emerging from EU Member States – from intimidation of constitutional Courts to manipulation of electoral law – seem to fall under the latter category. Even where there is a clear legal basis, the 1

See e.g. (responding to A. Von Bogdandy, M. Kottmann, C. Antpoehler, S. Dickschen, S. Hentrei and M. Smrkolj) D. Kochenov, ‘On Policing Article 2 TEU Compliance – Reverse Solange and Systemic Infringements Analysed’, Polish Yearbook of International Law (Warsaw: Wydawnictwo Naukowe, 2013), 153–162; ‘Rescue Package for Fundamental Rights: Comments of Peter Lindseth’ (18 February 2012). Available at: www .verfassungsblog.de/rescue-package-fundamental-rights-comments-peter-lindseth/#.VecTpeqmMs.

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EU’s ability to enforce rule of law and justice commitments is limited. Enforcement also depends on leverage.2 We will see this in the Romanian case discussed below: the level of FR protection the EU institutions can ensure may depend on the level of dependency between a particular MS and central institutions. A second possibility is to provide a ‘secondary’ or instrumental justification. This is based on the need to protect justice and rule of law, not because these are important values per se, but rather because they are needed to deliver the EU’s broader, i.e. non-justice-related, goals. This can be derived from several sources. One is post-Simmenthal reasoning, i.e. that national Courts, when executing EU law, are also acting as ‘EU Courts’.3 As such, their effectiveness and independence must be guaranteed. See, for example, the extensive case law on whether a referring Court represents a Court or Tribunal within the meaning of Article 267 TFEU.4 For this purpose, a number of requirements must be satisfied, including that the referring Court is sufficiently independent. Another ‘secondary’ justification is the necessity of judicial functioning as a means to deliver economic competitiveness and a free and fair internal market. In 2013, the Commission established a ‘Justice Scoreboard’ geared towards this purpose, whose oversight was grounded on the importance of judicial impartiality and effectiveness to inward investment, business confidence and economic growth.5 There can also be non-economic elements of this rationale. In its recent opinion on ECHR accession, the Court of Justice made clear that mutual trust between judicial systems was an essential element of the EU legal order.6 This is also a clear element of legislative measures, such as the European Arrest Warrant (EAW), which envisages functioning judicial systems as a precondition for measures based on mutual recognition in criminal matters. As a result, the EAW system allows the implementation of arrest warrants to be suspended in cases where Article 7 proceedings are brought.7 2

3 4

5

6 7

See M. Dawson and E. Muir, ‘Hungary and the Indirect Protection of EU Fundamental Rights and the Rule of Law’ (2013) 14 German Law Journal 10, at 1977. Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA (1978) ECR 629. Case C-54/96 Dorsch Consult Ingenieurgesellschaft GmbH v Bundesbaugesellschaft Berlin GmbH (1997) ECR I-4961; Case C-178/99 Salzmann(2001) ECR I-4421. Commission Communication, ‘The EU Justice Scoreboard: A tool to promote effective justice and growth’, COM (2013) 160 final. Opinion 2/13 of 18 December 2014 at 168. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, indent [10].

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The challenge with the ‘secondary’ approach is that it provides a highly instrumentalist perspective on rule of law protection. On the one hand, it could be seen as providing little autonomy for how nation states organise their judicial systems. It is unclear why national diversity on this question should be subordinated to the higher goal of ensuring effective application of EU policies and rights. This has been a strong point of critique of the Justice Scoreboard, which can easily be seen as highly reductionist.8 It is questionable whether ‘efficiency’, and conduciveness to investment, should be the primary mechanism for assessing the functioning of judicial systems (that carry elaborate procedures precisely to safeguard the rights of defence and build public confidence in their operation). On the other hand, the ‘secondary’ justification limits rule of law oversight (like justification 1) to those areas where the EU has a clear competence to act. Rule of law oversight becomes a servant of the Brussels machinery rather than of domestic citizens (the most likely victims of a rule of law deterioration in any MS). A third possible justification is to adopt the procedural lens outlined in Chapter 1. One element of this approach is a strong MOA. This would assume that national justice and democratic systems are best placed to operate according to their own procedural rules. Such an approach also assumes that democracy itself, when properly functioning, can resolve justice and rule of law crises – a proposition that some of the empirical evidence of this chapter will bear out. A procedural approach also, however, allows the possibility of systemic failure.9 Democratic procedures can operate only under fair ‘rules of the game’. There remains the possibility for legal and political procedures to be skewered in favour of the prevailing regime (to the detriment of future political majorities) or for minorities to be undercounted or excluded in the political process. EU intervention in these circumstances is premised on a similar rationale as judicial intervention to protect fundamental rights in the models 8

9

See e.g. similar critiques levelled both by the head of the Council Legal Service and by the German Bundesrat. H. Legal, ‘The Future of the Union’s Policy for Justice’, Dinner statement of ‘Assises de la Justice’, 21 November 2013, 5; Beschluss des Bundesrates, No. 171/14, 23 May 2014. Available at: www.ipex.eu/IPEXL-WEB/scrutiny/CO M20140155/debra.do. K. Scheppele, ‘What can the European Commission do when Member States violate basic principles of the European Union? The case for systemic infringement actions’. Contribution to the Assises de la Justice, November 2013. Available at: http://ec.europa.eu/justice/events/ assises-justice-2013/files/contributions/45.princetonuniversityscheppelesystemicinfringemen tactionbrusselsversion_en.pdf.

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of Habermas and Ely discussed in Chapter 1. The EU acts not to supplant but to revitalise national democracy, protecting citizens from governments that seek to act in their name, but in so doing entrench their rule, marginalise their opponents or otherwise subvert the democratic process. Such an approach may carry a special resonance, given the particular states where many rule of law challenges have arisen in the last decade. The accession of the nation states of Eastern and Central Europe in the 2000s was justified on the basis that accession would limit future ‘backsliding’ on democratic and rule of law guarantees. Such an approach has been seen by some as part of a wider European constitutional tradition, in which the early Communities were established as a safeguard against the historical tendency of crude majoritarian systems to erode into authoritarian forms of rule.10 At the very least, the procedural vision places justice and the rule of law itself – rather than the institutional interests of the EU – at the heart of transnational intervention. The procedural approach carries deficits of its own. One is how to justify a procedural role for the EU under the Treaties. This task requires a degree of judicial creativity akin to earlier phases of legal integration.11 Another is what has been termed the EU’s ‘justice deficit’.12 Against what standards can rule of law deficits be judged in the absence of extensive EU competence, experience and common values regarding justice? Finally, what should be the responsibility of different institutions in enforcing such deficits? While relying on political institutions creates a problem of politicisation, strong judicial enforcement (of the type proposed by, among others, Armin von Bogdandy13) seems to depend on precisely those legal institutions, able to activate the preliminary reference procedure, whose independence is at issue. These are problems any procedural approach must grapple with. A first question, however, is empirical – what kind of approach do we see being developed in existing EU justice and rule of law policy? Sections 4.2–4.4 will examine this through two main examples: the 10

11

12

13

See J. Werner-Mueller, Contesting Democracy: Political Ideas in 20th Century Europe (London: Yale University Press, 2011). See, however, the defence of such creativity in ‘Editorial: Safeguarding EU Values in the Member States: Is Something Finally Happening?’ (2015) 52 Common Market Law Review, 619–628. See D. Kochenov, G. de Búrca and A. Williams (eds.) The EU’s Justice Deficit (Oxford: Hart, 2015). A. Von Bogdandy, M. Kottmann, C. Antpoehler, S. Dickschen, S. Hentrei and M. Smrkolj, ‘Reverse Solange: Protecting the Essence of Fundamental Rights Against EU Member States’ (2012) 49 Common Market Law Review 2.

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constitutional crises affecting Hungary from 2010 to the present day and affecting Romania from 2012. Section 4.7 will later conclude by discussing the Polish case (a crisis just beginning to rear its head as this book was finalised). Some initial points are needed to place this discussion in context. Legal literature has tended to assume that Courts have a crucial role to play in resolving rule of law crises, i.e. just as Courts are called upon to resolve national rule of law shortcomings (given their isolation from political pressure) so the same applies at a transnational level.14 There is also often a common assumption in existing literature that EU intervention has failed: that the EU’s actions have not only failed to resolve but may have actually exacerbated rule of law crises (e.g. by allowing the EU to be cast as a meddling outsider, re-enforcing domestic support for incumbents).15 Many commentators either argue that the EU should give up its oversight role altogether (or make such intervention a narrowly defined exception16) or be far more ambitious, patrolling rule of law violations directly, or even suspending offending Member States from the Union through the use of the Article 7 procedure.17 A fuller empirical picture may question both of these assumptions. A governance approach, i.e. one that understands rule of law oversight from the perspective both of different levels of governance and from the point of view of multiple institutions, allows us to see that the EU’s existing tools, when properly coordinated, may be more effective than first assumed. In this picture, ‘soft’ political tools (of rousing domestic and European publics, of applying diplomatic pressure and of monitoring and 14

15

16

17

See Bogdandy ibid., B. Bugaric, ‘Protecting Democracy and the Rule of Law in the EU: The Hungarian Challenge’ (2014) LEQS Paper, No. 79; (on the full applicability of the Charter even in areas beyond EU law’s scope) A. Jakab, ‘Supremacy of the EU Charter in National Courts in Purely Domestic Cases’, Verfassungsblog (27 March 2013). Available at: www.verfassungsblog.de/en/supremacy-of-the-eu-charter-in-national-courts-inpurely-domestic-cases/#.VegnBJeqmMs. See e.g. J. Cornides, ‘The European Union: Rule of Law or Rule of Judges?’, EJIL Talk (11 November 2013). Available at: www.ejiltalk.org/the-european-union-rule-of-law-orrule-of-judges/. See M. Avbelj, ‘The Hungarian Dilemma from a Pluralist Perspective’, Verfassungsblog (08 May 2013). Available at: www.verfassungsblog.de/en/the-hungarian-dilemma-froma-pluralist-perspective-2/#.VeglUZeqmMt. J. Werner-Mueller, ‘Safeguarding Democracy Inside the EU: Brussels and the Future of the Liberal Order’ (2013) Transatlantic Academy Papers 3, 23; C. Closa, ‘Reinforcing EU Monitoring of the Rule of Law: Normative Arguments, Institutional Proposals and the Procedural Limitations’ in C. Closa and D. Kochenov (eds.) Re-enforcing Rule of Law Oversight in the European Union (Cambridge: Cambridge University Press, 2016).

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publicising fundamental rights violations) may be just as effective as ‘hard’ judicial ones. This empirical examination will be used, in Sections 4.5 and 4.6, to evaluate some current schemes, and future proposals, as to how a more general EU ‘rule of law mechanism’ should be designed. In these sections, the question of how governance research could aid the EU’s efforts to protect the rule of law will be addressed in greater detail.

4.2 The European Rule of Law in Crisis – Early Warnings Many of the explicit legal bases for EU intervention mentioned above were themselves a response to a particular constitutional crisis: the election of Jörg Haider into the Austrian coalition government in 2000. The Haider affair was a historic moment, an early example of the wave of extremist and populist parties that now make up an established part of the European political landscape. In 2000, fears about Haider led EU leaders, lacking formal sanctioning tools, to place Austria under informal diplomatic isolation, a strategy seen by many as both weak and counterproductive.18 Article 7 was, therefore, inserted into the Nice Treaty in December 2000 as a permanent mechanism to deal with future threats to basic values. European leaders were hardly unaware of situations where this provision might be applied in the future. The Treaty was explicitly sold to national publics as a means of tidying up the club’s rules in anticipation of future enlargement to states with more recent democratic traditions.19 Ironically, some of the first public discussions of Article 7 concerned a founding Member State: Italy. The Italian example illustrates well the danger of addressing the rule of law only through the lens of ‘crisis’. While the second Berlusconi government is often heralded as a period of particular concern, Italy faces long-term challenges concerning the administration of justice that both predate and outlast that government. Italy has consistently ranked as one of Europe’s worst-rated countries in terms of the execution of judgments by the ECtHR.20 Italy also 18

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M. Merlinge, C. Mudde and U. Sedelmeier, ‘The Right and the Righteous? European Norms, Domestic Politics and Sanctions against Austria’ (2001) 39 Journal of Common Market Studies 1. See W. Sadurski, Constitutionalism and the Enlargement of Europe (Oxford: Oxford University Press, 2012), 81–84. See the statistical analysis in ‘Supervision of the Execution of Judgments and Decisions of the European Court of Human Rights’, 8th Annual Report of the Committee of Ministers (Council of Europe, 2014), 32–39.

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ranks second worst among the old EU-15 in the World Justice Project’s indicators on public confidence in the rule of law.21 This provides the context for public and EU concern over perceived state manipulation of the judicial process. It also, though, reminds us that deficiencies in justice and the rule of law can as much be permanent features of functioning democracies as indicators of rule of law crises. This concern reached its peak via a number of measures stretching from early 2002 seemingly aimed at shielding the then prime minister from judicial prosecution.22 These included measures to lessen penalties and lower the statute of limitations for crimes of which the PM was accused, measures to allow the head of government immunity from prosecution and laws allowing easier transfer of Court cases (allowing the PM to transfer his case away from a tribunal perceived by allies as hostile). Finally, EU attention focused on measures instituted by the government seen to threaten media pluralism in Italy (in an environment where the PM himself carried considerable media holdings).23 The government refused, for example, to implement a 2002 Constitutional Court judgment requiring the PM’s media company to divest itself of its dominant position in the national market. Italy’s response to these challenges may provide some early support to proceduralist assumptions. Part of this is that national and expressly political mechanisms should be given an opportunity to function as a check on arbitrary political authority. The diversity of interests at play in national politics, and the weight of public opinion, may be the most effective tools in guarding against the concentration of public authority. In Italy’s case, there was considerable activism against the measures enacted by the Berlusconi government at both EU and national levels. In an April 2004 Resolution, the European Parliament expressed its concern at the non-implementation of the Constitutional Court ruling on media pluralism, calling for the Commission to establish a legislative proposal on media pluralism and to consider using its powers under 21

22

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Rule of Law Index 2015 (World Justice Project, 2015) at 21. Available at: http://worldjus ticeproject.org/sites/default/files/roli_2015_0.pdf. For a useful summary, see F. Hoffmeister, ‘Enforcing the EU Charter of Fundamental Rights in Member States: How Far are Rome, Budapest and Bucharest from Brussels?’ in A. von Bogdandy and P. Sonnevend (eds.) Constitutional Crisis in the European Constitutional Area (Oxford: Hart, 2015), 206–210. See Resolution of the European Parliament of 20 November 2002 on Media Concentration, OJ C 25 E.

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Article 7(1).24 The Commission declined to follow either option. National Italian Courts also invoked the preliminary reference procedure to ask the CJEU whether the revision of the Company Code and reduction in criminal sanctions were consistent with EU law. The CJEU replied that the setting of such penalties remained within the referring state’s margin of discretion.25 Ultimately, it was left to domestic political and legal institutions to challenge the Berlusconi government’s reforms. The Italian Constitutional Court rejected the PM’s application to change trial locations and also annulled, on two separate cases, the immunity laws.26 This led to the PM’s eventual conviction in October 2012, having already been ejected from office by voters. On the issue of media pluralism, concerns remain. Given a divided Senate, many of the laws limiting media pluralism enacted by the Berlusconi government remain on the statute books. At the same time, in 2012, the UN’s special rapporteur on free expression, the OSCE media freedom representative and the Council of Europe’s human rights commissioner all expressed concern over an Italian law designed to strengthen penalties and redress rights associated with defamation, seen as having a negative effect on freedom of the press.27 While significant rule of law issues hence remain, the main safeguard against abuse of power and limitations on public scrutiny of the government seemed in the Italian case to come from the domestic constitutional order, with the EU playing a largely peripheral role. In the two more recent examples, we will now explore – both concerning smaller (and politically weaker) Member States – the EU institutions that were far more active.

4.3 The European Rule of Law in Crisis – Hungary Hungary is clearly a quite different case: a 2004 accession state, which had not gone through a process of significant constitutional renewal since the end of the Soviet block. After the emergence of Victor Orban’s Fidesz party as a dominant force in 2010 elections, the Orban government 24

25 26 27

See Resolution of the European Parliament of 22 April 2004 on Risks of Violation of Freedom of Expression and Information, especially in Italy, OJ C 104 E. Case C-387/02 Berlusconi and Others (2005) ECR I-3565. Italian Constitutional Court, Cases No. 24/2004; No. 262/2009. See ‘Defamation in Italy: A Draft Law to Be Changed’, Il Corriere de la Sera (08 June 2014). Available at: www.coe.int/en/web/commissioner/-/defamation-in-italy-a-draft-law-to-be -changed.

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embarked on a series of (ongoing) constitutional reforms. Orban’s government represents a particularly distinct case. While the Romanian and Italian comparators all framed their reforms with reference to norms of liberal democracy, the Hungarian PM has challenged the EU’s liberal persona directly on numerous occasions. Most famously, he used a July 2014 address to Hungarian nationalists to argue that the era of globally competitive liberal democracies was over, promising to build an ‘illiberal state based on national foundations’.28 This statement followed a pattern of legislative and nonlegislative changes that seemed to affect core principles of the national constitutional order. Most of these can be grouped under three main headings: (i) The autonomy of independent institutions (ii) Limitations on electoral competition (iii) Freedom of expression and the media

4.3.1 Autonomy The idea of autonomy in public institutions speaks to what could be seen as a common constitutional principle of European orders: the idea of a separation of powers between public authorities, configured in varied ways across EU states.29 Many of these separations are mandated by EU law. A trend in EU secondary legislation, for example, has been to demand the creation of independent institutions at the national level able to effectively guarantee the application of particular European rules from banking to data protection30 to equality law31 (see Section 3.6 of Chapter 3). The concentration of governmental power, and the perceived abuse of powers of patronage, has been a central element of the Hungarian debate.32 This begins with Courts. Against the background of judicial resistance to the Orban government’s process of constitutional reform, 28

29

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‘Orban Wants to Build “Illiberal State”’, EU Observer (28 July 2014). Available at: https:// euobserver.com/political/125128. See C. Moellers, The Three Branches: A Comparative Model of the Separation of Powers (Oxford: Oxford University Press, 2013), 16–39. See Articles 29–30 of Directive 95/46/EC on the protection of individuals with respect to the processing of personal data and on free movement of such data. See Article 13 of Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. See M. Bankuti, G. Halmai and K.L. Scheppele, ‘Disabling the Constitution’ (2012) 23 Journal of Democracy 3.

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the government passed an act in 2011 changing both the remuneration and the retirement age of judges.33 By placing the retirement age at 62, a number of sitting constitutional court judges were removed. Concerns were also raised over the appointment of a central Presidency of the National Office for the Judiciary (NOJ), accountable to the government, and appointed for a 9-year term.34 The President’s overall powers and responsibilities for the organisation of the judiciary were enshrined through a March 2013 amendment to the Constitution. These powers include a wide-ranging power to transfer cases between responsible Courts based on efficiency criteria, a method condemned by the Venice Commission as ‘not in compliance with the principle of the lawful judge, which is essential to the rule of law’.35 The threat to independent institutions was not confined to the judiciary. Along with the reforms to the Media Council discussed below, the Orban government has displayed a pattern of removing officials and regimes associated with the previous government, creating new replacements more closely affiliated to the new one in their place.36 A new data protection agency was established in January 2012 after the summary dismissal of the previous data commissioner. The national central bank also came under renewed pressure. A 2011 Act drastically cut the salary of the Bank’s governor, provided the PM with the power to appoint Bank deputies without the governor’s consent, allowed the government to preview the agenda of the Bank’s governing board and allowed that board’s dismissal in cases of serious misconduct.37 As indicated above, in these cases, the anchoring of institutional independence in acts of EU law provided the EU institutions with considerable powers to intervene. All three of these autonomy threats (to the Bank, the data protection authority and the judiciary) were addressed through infringement actions launched in early 2012.38 The nature of these actions illustrates both the strengths and weaknesses of the Commission’s enforcement. To begin with weaknesses, as 33 34

35 36 37 38

See Act CLXII of 2011 on the status and remuneration of judges of Hungary, section 90. Venice Commission, Opinion 663/2012 on Act CLXII of 2011 on the status and remuneration of judges of Hungary, 7–12. Ibid., at 92. See Bugaric, n. 14 above, 8–10. See Act CCVIII of 2011 on the Magyar Nemzeti Bank. See Commission Press Release of 17 January 2012, ‘European Commission launches accelerated infringement proceedings against Hungary over the independence of its central bank and data protection authorities as well as over measures affecting the judiciary’. Available at: http://europa.eu/rapid/press-release_IP-12-24_en.htm.

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the legal basis for infringement was legislative, the Commission was forced to examine aspects of legislative changes that might be considered peripheral to the ‘core’ rule of law challenge.39 Dismissal of judges, for example, was challenged not as a breach of judicial independence but as an unjustified act of age discrimination. In an environment where extensive rule of law challenges persist, such ‘indirect’ strategies of enforcement can easily be seen as trivialising serious breaches of fundamental rights. Others have criticised the ad hoc ‘pick and choose nature’ of enforcement, which may leave many important FR breaches, or else the broader and systemic rule of law challenge, untouched.40 On the other hand, the Commission’s power and ability to induce policy change as a result of the enforcement actions is considerable. As a result of Commission pressure, the government’s powers to appoint and dismiss the data protection commissioner were limited by legislative amendments passed in 2012.41 Similarly, the Commission stepped up its pressure on banking interference through suspending economic assistance to Hungary in February 2012 while simultaneously pursuing its infringement action. As a result of this pressure, the government in July 2012 agreed a law limiting the ability of the government to attend central bank meetings and appoint junior officials without consultation.42 The law also provided the European Central Bank with a right of consultation on future changes affecting the Hungarian central bank’s mandate. The Commission’s argument – that, reflecting the ‘secondary’ justification for rule of law oversight given above, independent national central bank was a central part of the ECB’s own autonomy – had some effect in steering national change. Similar, albeit more modest, effects can be observed with reference to judicial independence. Again, the Commission used a ‘secondary’ argument to apply pressure on Hungary: that national Courts were also ‘Union’ Courts and to this extent needed to meet basic standards of independence and effectiveness.43 The Commission won its infringement action before the CJEU in November 2012, with the Court arguing that the Hungarian law established disproportionate differential treatment on grounds of age.44 The Hungarian government largely complied 39 40 41 42 43

44

See Dawson and Muir, n. 2 above. Scheppele, n. 9 above, at 3. See Hoffmeister, n. 22 above, at 217. See Act CCVIII of 2011 on the Magyar Nemzeti Bank (as amended July 2012). See Vivian Reding’s development of this argument. Speech at the Centre for European Policy Studies, ‘The EU and the Rule of Law: What Next?’ (4 September 2013). Available at: http://europa.eu/rapid/press-release_SPEECH-13-677_en.htm. Case C-286/12 Commission v Hungary, Judgment of 6 November 2012.

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with the ruling through a law passed in March 2013, bringing judicial retirement into line with the general retirement age of 65, allowing dismissed judges compensation and the ability to be re-instated in their old positions.45 Further laws passed in 2013 limited government interference in the National Office for the Judiciary, allowing judges to appeal against decisions of its President, increasing his or her accountability to the national Parliament and limiting the possibility to renew the President’s mandate. These changes directly followed a critical opinion on the powers of the NOJ issued by the Venice Commission in June 2013.46 This example illustrates the importance of international institutions – as well as domestic ones – supporting and re-enforcing each other. There is some evidence of this vis-à-vis the interaction in the Hungarian case between EU institutions and domestic Courts. In July 2012, the Hungarian Constitutional Court itself ruled the lowering of the retirement age unconstitutional.47 While this suspended the law’s effects, it left the door open to re-enacting the measures through cardinal laws, where the jurisdiction of the Constitutional Court would be limited. This practice – of responding to Constitutional Court decisions by adopting provisions on a Constitutional level – was repeatedly criticised by the Venice Commission.48 By re-affirming the national Court’s decision, the infringement proceedings before the CJEU illustrates some further benefits of EU intervention in safeguarding the rule of law. Given the primacy of EU law, it is unclear whether simply re-passing measures through the avenue of ‘cardinal laws’ could as effectively circumvent constitutional Court rulings. The CJEU in this sense, albeit via ‘indirect’ enforcement, strengthened the position of its domestic counterpart. Finally, EU intervention in relation to judicial independence was also political in nature. Just as the Commission was launching its infringement procedures, the European Parliament issued in February 2012 a Resolution criticising constitutional reform in Hungary. That Resolution argued that new powers of case reassignment, and the dismissal of judges due to earlier 45

46

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See Commission Press Release of 20 November 2013, ‘European Commission Closes Infringement Procedure on Forced Retirement of Hungarian Judges’. Available at: http:// europa.eu/rapid/press-release_IP-13-1112_en.htm. Venice Commission, Opinion 683/2012 on the Cardinal Acts on the Judiciary that were amended following the adoption of Opinion CDL-AD (2012) 001, at 15. Decision No. 33/2012 of the Hungarian Constitutional Court. Venice Commission, Opinion 720/2013 on the 4th Amendment to the Fundamental Law of Hungary, 18–20.

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retirement, infringed the right of access to a Court.49 A further Resolution, of July 2013, devoted a large section to judicial independence, arguing that existing measures did ‘not provide sufficient assurances of constitutional safeguards as to the independence of the judiciary and the independence of the Constitutional Court of Hungary’.50 The Resolution followed the strategy of attempting to re-enforce domestic institutions discussed above, singling out the Constitutional Court for praise (‘recognised as an outstanding constitutional body throughout Europe and the world’51) and asking for its rulings on the composition and administration of national Courts to be respected. The Resolution foretold a trend that would follow in other areas: the Parliament’s response to rule of law challenges in Hungary was highly partisan, with support and opposition to the Resolution often reflecting divisions between Fidesz and its European People’s Party supporters and other political groupings. As was discussed in Chapter 3, the EP both publicised the Hungarian issue, demanding a national and Commission response, and heavily politicised it (opening itself up to the accusations of inconsistency).

4.3.2 Electoral Competition The Orban government has frequently justified its action on democratic grounds: that its activities, including its project of constitutional renewal, emerge from a significant political mandate.52 In spite of international criticism, Fidesz won re-election in 2014 with 133 out of 199 parliamentary seats. This relates back to the procedural assumptions discussed in Chapter 1: if a critique of judicial review, for example, relates to the legitimacy of the political process, this depends to some degree on the political process being pluralistic and representative. The most significant challenge to this pluralism may relate to the government’s use of its mandate, either to make present political competition more difficult or to insulate its decisions from future scrutiny. 49

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Resolution of the European Parliament of 16 February 2012 on recent developments in Hungary, OJ C127E/79, [E]-[G]. Report of the LIBE Committee of the European Parliament of 3 July 2013 on the situation of fundamental rights, standards and practices in Hungary, 2012/2130 (INI), at 30. Ibid., at 38. See ‘Viktor Orban Angry at EU’s Criticism of Hungary’s Democratic Values’, EU Observer (03 July 2013). Available at: www.euractiv.com/video/viktor-orban-angry-euscriticism-hungarys-democratic-values-307166.

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In the first case, the government altered the electoral system in 2011, changing electoral boundaries, drastically cutting the number of MPs and altering the formula by which MPs would be elected. The change seemed to benefit the governing party – from the 2010 to 2014 elections (fought under the new rules), the proportion of Fidesz MPs dropped by only 1 per cent in spite of an 8 per cent drop in electoral support (allowing the Orban government to retain its two-thirds majority). The change was heavily criticised in a joint 2012 opinion of the Venice Commission and OSCE, with particular attention paid to the low level of consultation either of opposition groups or the public at large in how any new electoral system should be designed.53 The report also criticised the fixing of new electoral boundaries in near irreversible ‘cardinal laws’.54 The use of such cardinal laws in Hungary speaks to a second democratically oriented set of concerns. In the 2010 election, Fidesz’s sweeping success granted it a sizeable two-thirds majority, allowing it to engage in a process of constitutional reform. The preferred instrument for reform has been the passing of numerous ‘cardinal laws’ (which require a twothirds majority in Parliament to be passed or amended). While the high majority associated with cardinal laws might suggest that they are mainly appropriate for constitutional changes representing a broad societal consensus, such laws have been used both on contentious social issues and to pass measures regulating what may be termed ‘ordinary’ political measures.55 These included the regulation of the tax system, family law (including the definition of marriage) and the denomination of recognised religions. The use of cardinal laws was condemned by the European Parliament in 2012 as severely restricting the democratic freedoms of future governments.56 The Venice Commission’s 2011 opinion on the Hungarian Constitution also criticised their overuse.57 These democratic shortcomings may constitute one of the main unresolved elements of Hungary’s constitutional reform process. Following its 2012 Resolution, the European Parliament’s LIBE Committee adopted a further report on Hungary, authored by the Portuguese MEP Rui Tavares, in June 2013.58 While the report noted progress with respect to some issues, e.g. the independence of the data protection and central bank offices, it 53

54 55 56 57 58

See Joint Opinion of the Venice Commission and OSCE 662/2012 on the Act on Elections of the Members of Parliament of Hungary at 51. Ibid., 15–18. See Opinion 720/2013, n. 48 above, 29–31. European Parliament, n. 50 above, at D. Opinion of the Venice Commission 621/2011 on the new Constitution of Hungary, at 24. LIBE Committee Report, n. 51 above.

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remained highly critical of democratic breaches. The Committee made recommendations on electoral reform and criticised the continued use of cardinal laws as a means of entrenching present political preferences.59 Tavares’ conclusion was that the values referred to in Article 2 had been breached. Rather than invoke Article 7 directly, the report urged the EU institutions to collaborate on structural remedies, i.e. future proposals to strengthen rule of law oversight both in Hungary and across the EU.60 The Tavares report (as mentioned by a European Parliament official interviewed for this book) could be seen as a high watermark for EU intervention in Hungary. Its intense media coverage illustrated the capacity of the Parliament both to investigate rule of law challenges in detail and to publicise them, resisting significant political pressure in the process. There seems little doubt that the Parliament’s actions forced a political response, at least at the EU level. The publication of the Tavares report promoted the Commission President himself to make a speech on the fundamental rights situation in Hungary before the Parliamentary plenary on 2 July 2013, promising a more developed set of EU instruments to monitor rule of law and FR violations.61 The Commission followed this by producing in March 2014 an explicit framework for monitoring and addressing national rule of law violations.62 This ability of the EP to encourage politicisation and contestation of FR issues could yet, however, be seen as a double-edged sword. The report was adopted by LIBE with 19 objections and eight abstentions, indicating heavy resistance from the centre-right political grouping in the EP, of which Fidesz is a member. It is further unclear whether the report’s principal recommendations have been followed up: the rule of law framework eventually adopted falls far short of the strongly empowered ‘Copenhagen Commission’ demanded by the Tavares report or the idea forwarded there of fundamental rights agency monitoring of Member States in the FR field. The Commission’s mechanism was not activated in the Hungarian case (although an investigation into another state, Poland, was opened in January 2016).63 In the area of electoral competition, the 59 60 61

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Ibid., at 71. Ibid., at 80. Speech by President Barroso at the European Parliament Plenary on the situation of fundamental rights: standards and practices in Hungary, 2 July 2013. Available at: http:// europa.eu/rapid/press-release_SPEECH-13-608_en.htm. Commission Communication, ‘A New EU Framework to Strengthen the Rule of Law’, COM (2014) 158 final. See College Orientation Debate on recent developments in Poland and the Rule of Law Framework: Questions & Answers (13 January 2016). Available at: http://europa.eu/rap id/press-release_MEMO-16-62_en.htm.

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combined efforts of EU and domestic institutions seem to have created mixed results.

4.3.3 Freedom of Expression and the Media Changes in 2010 to the Hungarian media law represented one of the first signs of rule of law dangers to come in Hungary. The new media law provided sweeping powers to a state media council to control the content of media according to dignity and privacy principles and to apply hefty fines to journalists breaching its rules.64 These powers were used to deprive some companies critical of the Orban government of their broadcasting licenses. The media reforms produced a cacophony of domestic and international criticism, from both international organisations such as the Council of Europe and OSCE to NGOs (Freedom House, for example, noted in 2015 a 5-year decline in the level of press freedom in Hungary).65 A series of Venice Commission opinions lay bare some of the law’s implications.66 These include the highly vague nature of proscribed content, with the law excluding content based on breaches of anything from ‘constitutional order’ to content ‘excluding peoples and nations’, as well as content likely to offend individual religious or political beliefs.67 The Venice Commission also expressed concern about the proportionality of fines for material breaches68 as well as a ‘balanced coverage’ obligation that could be seen as limiting the ability of media providers to criticise government action.69 The balanced coverage obligation – and the potential exclusion of external broadcasters via regulation by the Media Council – gave the EU an opening to engage the Hungarian government on these issues. As with some of the examples mentioned above, that engagement was heavily conditioned by the applicable EU law norms. In December 2010, Neelie Kroes wrote a strongly worded letter to the Hungarian authorities, objecting to recent 64 65

66

67 68 69

Act CLXXXV of 2010 on Media Services and Mass Communication. See ‘Hungary: Freedom of the Press 2013’. Available at: https://freedomhouse.org/report/ freedom-press/2013/hungary; ‘Hungarian Media Law Further Endangers Media Freedom, Says OSCE Media Freedom Representative’, OSCE (21 December 2010). Available at: www.osce.org/fom/74687. See Opinion 720/2013, n. 48 above, 10–12; Opinion 798/2015 of the Venice Commission on Media Legislation of Hungary. Ibid., 2015 opinion, 22–27. Ibid., 36–41. Ibid., 47–51.

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reforms on the grounds that they potentially compromised the EU’s AudioVisual Media Services (AVMS) Directive.70 As with other ‘indirect’ routes of FR enforcement, the letter focused on matters that arguably were secondary to the principal FR challenge: the concentration of regulatory power in the hands of the government. As Kroes framed it, the media law’s main issue from an EU law perspective was its infringement of the country of origin principle, creating new rules for foreign broadcasters on top of those applicable in their home states. Nonetheless, the language of FR, and the importance of media freedom, was used throughout. The European Parliament followed with a Resolution in March 2011, arguing for greater Commission intervention, based not just on the AVMS directive but on wider Charter provisions.71 Illustrating the importance of external expertise, the Parliament’s Resolution closely followed the text of the Venice Commission’s earlier opinion on the media law. Domestic institutions also challenged aspects of the media law. The Constitutional Court annulled a number of provisions of the media law establishing the Media Council’s powers in a December 2011 ruling.72 The lower Courts also invalidated Media Council decisions to exclude one particular radio broadcaster, Klubradio, through a series of 2012 judgments. Domestic and EU pressure combined to force piecemeal changes in the media law. The threat of Commission intervention was allayed by amendments passed in 2011 and 2012. The ‘balanced coverage’ obligation now only applies to linear (TV and radio) media services, with the requirement to provide ‘diverse, comprehensive, factual, up-to-date and objective’ coverage removed.73 The obligation under the prior law for journalists to reveal sources, also subject to scrutiny by the Constitutional Court, was removed.74 Further reforms in 2013 also altered the Media Council’s statute, involving Hungary’s President in the Media Council President’s appointment and making his or her term non-renewable. These ‘piece by piece’ changes illustrate the combined ability of domestic and international institutions to pressure the government to slowly reform. The Venice Commission’s 2015 assessment of media freedom in Hungary was more 70

71 72 73 74

See letter to the Hungarian Government of 23 December 2010. Available at: https://hun garianwatch.wordpress.com/2011/01/25/official-letter-from-neelie-kroes-to-hungariangovernment/. European Parliament Resolution of 10 March 2011 on Media Law in Hungary. See (on this and lower Court case law), Hoffmeister, n. 22 above, 210 and 211. Venice Commission 2015 opinion, n. 67 above, at 48. Ibid., at 53.

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positive than prior appraisals, commending the government on prior changes, while still signalling a number of areas of concern.75

4.4 The European Rule of Law in Crisis – Romania Romania’s rule of law crisis started somewhat later, reaching its peak in the summer of 2012. Its context is quite different from Hungary’s, reflecting both Romania’s character as a split ‘semi-presidential’ system of government and a period of intense political competition between the Democratic Liberal Party (PDL, led at that time by Traian Basescu) and the Social Democratic Party (PSD) of Victor Ponta. Basescu narrowly won re-election as President in 2009. Following austerity measures demanded by the IMF, his popularity plummeted, allowing Mr Ponta to manoeuvre his PSD to the head of a governing coalition in April 2012. While Mr Ponta was appointed by the President, the relationship between President and Parliament soon descended into a tense political stand-off. To resolve it, Parliament sought the impeachment of the President on 6 July 2012. Romania’s constitutional framework includes a complicated impeachment process.76 It requires an advisory ruling by the Constitutional Court, as well as a positive referendum result, confirming impeachment not only through a majority vote but a quorum of at least 50 per cent of eligible voters. Realising the difficulty of overcoming such obstacles, the Ponta government undertook a series of measures that resemble many of the rule of law challenges observed in the Hungarian case. Firstly, just as the Orban government’s instrument of choice has been a rather unusual legal source – the cardinal law – so the Ponta government displayed a tendency to act through fast-track emergency ordinances, passed with reduced parliamentary scrutiny. Such emergency ordinances were used on 140 occasions in 2011, and for most of the measures adopted during Romania’s rule of law crisis (a practice described by the Venice Commission as ‘an abuse of this instrument’).77 As in the Hungarian example, such ordinances were frequently used to undermine independent institutions. In early July, the Parliament 75 76 77

See Conclusions, ibid., 110 and 111. See Article 95 of the Constitution of Romania. Venice Commission opinion on the compatibility with constitutional principles and the rule of law of actions taken by the Government and Parliament of Romania, 14 and 15 December 2012, CDL-AD (2012) 026 at 15.

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dismissed the speakers of both parliamentary chambers, as well as the national Ombudsman (an individual whose office has the sole power to challenge emergency ordinances in front of the Constitutional Court).78 The Court itself was also the subject of attack. Formally, an ordinance from 4 July stripped the Court of its ordinary powers of constitutional review over parliamentary Resolutions.79 Informally, the Justice Minister requested Romania’s main anti-corruption body, the National Integrity Agency, to open up investigations into a number of Constitutional Court judges (an irony given that several politicians of the governing parties had themselves been charged with corruption before the Romanian courts). By August, the President of the Court had written to the Commission’s Vice President, complaining of physical intimidation and death threats against Court members.80 Finally, emergency ordinances were used to change the referendum law, in direct violation of a constitutional complaint that had confirmed its validity.81 The new ordinance dropped the 50 per cent quorum, heightening the possibility of a successful impeachment referendum against the ruling President. As put by the Venice Commission: In other words, the rules of the game were changed while the game was under way. Such event driven changes of electoral legislation amount to a violation of legal certainty and the principle of the stability of the referendum process.82

In contrast to the Hungarian case that unfolded over a number of years, Romania’s highly condensed crisis also produced a fast EU response. The Commission quickly produced successive press releases in July expressing concern over the rule of law in Romania and the integrity of independent institutions.83 The Parliament also intervened, with the 78

79

80

81 82 83

See Decision of the Romanian Parliament No. 32 of 30 July 2012. Interestingly, the Ombudsman’s removal was challenged unsuccessfully before the Romanian Constitutional Court. Emergency Ordinance No. 38/2012, amending Law 47/1992 on the Organisation and Functioning of the Constitutional Court. See ‘Commission Concerned by Death Threats to Romanian Judges’, Euractiv (09 August 2012). Available at: www.euractiv.com/justice/commission-concern-romanian-deatnews-514258. See Constitutional Court of Romania, Decision No. 731 of 10 July 2012. Venice Commission, n. 39 above, at 32. See Commission Press Release of 6 July 2012; Commission Press Release of 18 July 2012. Available at: http://europa.eu/rapid/press-release_MEMO-12-529_en.htm; http://europa .eu/rapid/press-release_IP-12-799_en.htm.

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leaders of both main political groupings expressing reservations over the use of emergency procedures and intimidation of the Constitutional Court. Importantly, and in contrast to the Hungarian example, the Commission was quick to tie the discussion over justice and the rule of law in Romania to political progress in other areas. This has often been described in political science literature as ‘issue linkage’, i.e. the attempt to bind issues in order to exercise enhanced political leverage.84 As Ingi Iusmen has pointed out, both the Commission and national governments used the possibility of issue linkage to successfully apply pressure on the Romanian government.85 From the Commission side, the rule of law crisis coincided with the Commission’s latest report on Romania in the context of the Cooperation and Verification mechanism set up to monitor Romania’s EU integration following enlargement. While judicial matters normally concern only a peripheral part of such a report for an already acceded state, the report of 18 July focused heavily on judicial independence, demanding that the government both respect Constitutional Court rulings and repeal emergency ordinances on judicial review and the electoral law.86 Crucially, the Member States backed up and assisted the Commission in its confrontation with the Romanian authorities, again using the tool of issue linkage. While there is no automatic connection between success under the Cooperation and Verification mechanism and entry into the Schengen area (a decision that would require assent by all Member States), several national governments expressed concerns that either failure under the CVM or wider constitutional issues could delay or halt altogether Romania’s application for Schengen membership.87 Attesting to a problem commented upon by many, Romania’s enlargement legacy (in contrast to Hungary’s earlier accession date) provided the 84

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For an early discussion (by one of integration’s most famous scholars), see E. B. Haas, ‘Why Collaborate? Issue Linkage and International Regimes’ (1980) 32 World Politics 3. I. Iusmen, ‘EU Leverage and Democratic Backsliding in Central and Eastern Europe: The Case of Romania’ (2015) 53 Journal of Common Market Studies 3, 5. European Commission, Report on Progress in Romania under the Cooperation and Verification Mechanism, COM (2012) 410 final. See ‘Romania Receives Schengen Area Setback’, Financial Times (18 September 2012). Available at: www.ft.com/intl/cms/s/0/59bb1766-01b0-11e2-8aaa-00144feabdc0.html#a xzz3kmoJKJUd. See also U. Sedelmeier, ‘Anchoring Democracy from Above? The EU and the Democratic Backsliding in Hungary and Romania after Accession’ (2014) 52 Journal of Common Market Studies 1, 117.

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EU with greater ‘material leverage’ once the constitutional crisis had broken out.88 By 16 July, Prime Minister Ponta had informed the Commission of its intention to implement its main demands. By 18 July, the Romanian Parliament had rescinded its ordinances on the jurisdiction of the Constitutional Court and on the referendum quorum. Ultimately, the crisis was resolved by ordinary politics. In the eventual referendum, a significant majority voted in favour of the President’s impeachment but (urged on by the President himself) a voter boycott ensured that the 50 per cent threshold was not reached. By November 2014, Mr Ponta had been effectively removed from the political scene through his defeat in a presidential run-off to Klaus Iohannis, a liberal candidate running on a campaign of anti-corruption, judicial independence and free market reform. Revisiting the Romanian case, and the draft law on the review of the Romanian Constitution, in March 2014, the Venice Commission was far more positive in its assessment (while still noting a number of areas of concern, such as on government ordinances, where its 2012 opinion had not been followed).89 While it is premature to label the EU’s Romania intervention ‘successful’, it is nonetheless worth pondering what lay behind the government’s decision to comply with external rule of law demands. Simple observations comparing the Hungarian and Romanian cases might put the latter’s strong compliance in the summer of 2012 down to the strength of the EU’s stick. The EU’s political and economic leverage in the form of Schengen accession and the CVM simply forced the government to back down. The same conditions did not apply in Hungary, which was already a full EU and Schengen member. Such a finding would have important implications for how (see Section 4.6) any future mechanism to ensure national commitment to justice and the rule of law should be designed. While such an argument carries some weight, we should be wary of jumping to such a conclusion immediately. Firstly, to what extent does limited progress under mechanisms like the CVM seriously constitute ‘material leverage’? While during the early periods of the CVM, a lack of progress could lead to the invocation of a safeguard clause limiting the application of certain Treaty provisions, these clauses expired three years 88 89

This is also Ulrich Sedelmeier’s conclusion. Ibid., 117 and 118. Venice Commission opinion on the draft law on the review of the Constitution of Romania, 21 March 2014, CDL-AD (2014) 010.

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after accession.90 Secondly, the Hungarian and Romanian cases may not be as far apart as first thought. Hungary’s move to amend its media law, and to restore many of the guarantees of central bank independence, could be associated with Hungary’s precarious financial position in 2012.91 Relying on IMF aid (which required restoration of central bank independence as a condition for financial assistance), and faced with the loss of almost 500 million euros in cohesion funding as a result of being placed in an excessive deficit procedure, the EU also carried some leverage in the Hungarian example.92 The Council’s decision to lift its moratorium on cohesion funding in June 2012 was justified in terms of Hungary’s excessive deficit;93 it could also be seen, however, as something of a quid pro quo for Hungary’s relatively improved compliance record in early 2012. We should be careful to avoid over-stylising the differences between these cases, either exaggerating or minimising the interdependencies between the EU and its national counterparts in either case. In a polity as interconnected as the EU, EU institutions are always likely both to carry leverage and to be dependent upon any given Member State. Most importantly, however, the ‘material leverage’ story may overstate the importance of EU instruments, and understate the influence of domestic factors, in shaping the response of Member States to EU intervention on issues relating to the rule of law. To this extent, the legal debate over rule of law compliance has much to learn from discussions in the social sciences over Europeanisation and the influence of domestic pressure and political competition on the receptiveness of national governments to international obligations.94 Such accounts may provide an alternative explanation of the differences between the Hungarian and Romanian examples. As Ulrich Sedelmeier has argued, there are fundamental differences between the commitments of the Hungarian and Romanian administrations both to the EU project as a whole and to the project of constitutional reform.95 90 91 92

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See Article 36 of the Romanian and Bulgarian Accession Treaties. Sedelmeier, n. 87 above, at 116. See ‘Hungary’s Orban Embraces Central Bank Chief to Save IMF Deal’, Bloomberg (06 January 2012). Available at: www.bloomberg.com/news/articles/2012-01-05/hun gary-pledges-imf-compromise-to-quicken-bailout-talks-after-forint-rout. www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ecofin/131129.pdf. See e.g. T. Boerzel and T. Risse, ‘When Europe Hits Home: Europeanization and Domestic Change’ (2000) 4 European Integration Online Papers 15; U. Sedelmeier, ‘After Conditionality: Post-Accession Compliance with EU Law in Eastern and Central Europe’ (2008) 15 Journal of European Public Policy 6. Sedelmeier, n. 87 above, 114–117; see also Iusmen, n. 85 above, 8–11.

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While the Orban government saw and justified its constitutional reforms as an act of renewal in the context of a constitutional framework unchanged since the fall of communism, Romania’s constitutional crisis carried far more short-term objectives, aiming primarily to overcome a period of intense competition between two opposed branches of government. Levels of support for EU membership are also higher in the Romanian case than the Hungarian one, with Schengen accession being a particularly high priority for the Romanian electorate.96 Finally, while Fidesz carried a large political majority, with a weak and divided opposition, the Romanian government governed in coalition, with legislative and Presidential elections just around the corner. The political costs for ‘compliance’ with EU demands in relation to justice and the rule of law were thus very different in the Hungarian and Romanian stories. Taking the story outlined above seriously requires revisiting the idea that the primary driver of national compliance with rule of law standards is the ‘strength’ of the sanction associated with non-compliance. The extent to which a state does or does not comply is certainly associated with sanction, but also with the timing and circumstances in which sanctions may be applied. In this sense, it is difficult, in the area of justice and the rule of law, to adopt a ‘one size fits all’ approach. The types of instruments the EU is able to deploy to bring Member States into line, and to break an executive monopoly on rule, are likely to vary depending on the political relationship between that state and the EU. In so far as Article 7 is concerned – or other measures under the control of the Council (such as Schengen accession) – the level of isolation of a particular government vis-à-vis its fellow member states is also important.97 At the same time, the willingness of the government to respond to a particular instrument will always be partially normative and partially based on a weighing of the costs and benefits of compliance. These costs will always vary between states and depend on their economic and political circumstances. These observations are important to keep in mind when considering how EU intervention in the field of justice and the rule of law could be reframed in the future. It is to this question – how to assess a number of recent academic and institutional reform proposals in light of the empirical picture above – that we must now turn. 96 97

Iusmen, ibid., at 8. Dawson and Muir, n. 2 above, at 1978.

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4.5 The Future of EU Intervention on Democracy and the Rule of Law 4.5.1 ‘New’ Governance and the Quantification of Democracy and the Rule of Law If one of the challenges in responding to the Hungarian and Romanian cases discussed above was one of politicisation, i.e. the danger that EU intervention would be perceived as partisan or reflecting a mere dislike of the political choices of particular populations, one solution could be found in attempts to quantify justice or rule of law performance. A number of proposed and existing EU measures have attempted to establish governance frameworks for the rule of law that stop short of command and control or sanctioning measures. One possible route for example would be to establish something like an ‘Open Method of Coordination’ (OMC) for fundamental rights akin to the process currently used to coordinate national social and fiscal policies under the European Semester.98 The OMC has traditionally carried different models across policy fields from the more coercive procedures of the Stability and Growth Pact to the soft policy learning seen in areas like pensions and social inclusion. The key element of the OMC, however, is the idea of multilateral surveillance.99 States are expected to adhere to common guidelines that allow different social and legal regimes to implement shared goals in diverse ways. States are, at the same time, obliged to report on their performance, allowing the benchmarking and ‘peer review’ of national performance. By making state practice transparent, states can (in theory at least) either negatively exert pressure upon or positively learn from the practices of their neighbours. While a fully fledged OMC for fundamental rights remains an academic pipe dream, a number of elements of the EU’s FR architecture carry OMC-like elements. Since 1984, the Commission has supported a network of independent experts in the discrimination field tasked with reporting on how national governments in the field of gender, race and other discrimination comply with obligations under EU equality law.100 As already discussed, part of the Commission’s response to expulsion 98

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S. Smismans, ‘How to Be Fundamental with Soft Procedures? The Open Method of Coordination and Fundamental Social Rights’, in G. de Búrca and B. de Witte (eds.) Social Rights in Europe (Oxford: Oxford University Press, 2005). For an introduction, see M. Dawson, New Governance and the Transformation of European Law (Cambridge: Cambridge University Press, 2011), 41–50. See the website of the European Equality Law Network: www.equalitylaw.eu/.

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measures aimed at Roma communities was the establishment of an EU framework for National Roma Integration Strategies in 2011.101 This strategy included a number of OMC-like elements from a set of common EU guidelines on Roma integration to national reporting obligations, as well as a ‘Platform for Roma Inclusion’ designed to share best practice between governments, NGOs, EU officials and Roma groups. In the face of political disagreement over FR, the drive to create frameworks for the monitoring and sharing of best practice has been a common EU policy response. Finally, a more comprehensive example of ‘new governance’ in the area of justice and the rule of law is the Justice Scoreboard, a mechanism coordinated since 2013 by DG Justice. The Scoreboard is designed to assess and compare the functioning of justice systems across the EU as part of the European Semester. As is typical of new governance instruments, the Scoreboard is not associated with any formal enforcement mechanism but nevertheless carries some inducements for governments to cooperate in improving national judicial performance. In terms of ‘carrot’, the Scoreboard has been coupled with the identification in a number of Member States of Justice as a priority area for investment under EU social and investment funds.102 In terms of ‘stick’, failures in justice reform can be subject to either country-specific recommendations in the context of the European Semester or the suspension on mutual trust for particular states in justice matters.103 Officially, the Scoreboard is designed to improve economic benefits associated with greater trust in the judicial system; more informally, however, it is commonly seen by its architects (including those interviewed for this book) as a means of using comparison, and the exchange of good practices, as a means of improving rule of law performance as a whole.104 A more difficult question is over how adequate such a response to FR and rule of law challenges within particular Member States’ OMC-like mechanisms really are, particularly in view of the Hungarian and Romanian examples. There are a number of problems associated with 101

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Commission Communication, ‘An EU Framework for National Roma Integration Strategies up to 2020’ COM (2011) 173 final. Commission Communication, ‘The 2015 EU Justice Scoreboard’, COM (2015) 116 final, at 4. On how the Scoreboard could induce domestic change in the field of justice, see A. Dori, ‘The EU Justice Scoreboard: Judicial Evaluation as a New Governance Tool’ (2015) MPILux Working Papers 2, 9–11. Interviews with officials from DG Justice, May 2015.

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importing quantitative methods into discussions over EU intervention in the field of justice. The first concerns the evidence base for quantifying the rule of law. This is not aided by the ‘proxy’ nature of many of the indicators the Justice Scoreboard relies upon in measuring national justice systems. The main indicator for measuring judicial independence is perceived judicial independence, taken from a survey of the World Economic Forum sent to ‘representative’ small firms.105 Not all Member States provided data. One could question both the equation of broader perceptions of judicial independence with the perceptions of businesses only and the subjective nature of the assessment. There is a clearly circular form of reasoning illustrated by this indicator. On the one hand, the Scoreboard is meant to inform the perceptions of actors, particularly businesses, on how national judicial systems are functioning. On the other hand, its very measurements are based on the perceptions of that same set of actors. The crude nature of such EU intervention may have influenced national resistance. See, for example, the opinion of Hubert Legal, the Head of the Council’s legal service: To depict the performance of a judicial system taken globally through a simplistic graphic presentation based on a limited number of indicators of productivity is not very convincing from the angle of the science of statistics; but, more importantly, it is bound to be perceived by the national institutions concerned as the manifestation of a lack of understanding and modesty. Certainly to finish trials in an average of 8 months is better than to finish them in 8 years and to draw attention to certain excesses is in order. But there are many aspects that cannot be addressed by figures, even if we have a stronger set of them to prepare the next exercise. Frankly, with all respect for competitiveness issues, to view justice as a side alley leading to the main road of global productivity is a bit like looking ‘par le petit bout de la lorgnette’.106

Quantification speaks to the concern raised earlier regarding the EU’s justice deficit: is it really possible to adequately quantify, at an EU level, what justice and the rule of law require, in an objective and impartial manner? Finally, a second and more mundane objection may pertain to the performance of past new governance instruments. While there remains 105 106

See 2015 Scoreboard, supra, at 37. See H. Legal, ‘The Future of the Union’s Policy for Justice’, Dinner Statement of 21 November 2013, 5.

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a fierce debate regarding the OMC’s effectiveness, there is at least limited evidence that the OMC and other mutual surveillance mechanisms have induced significant national policy change.107 This is particularly the case in areas of policy where the financial or political costs of compliance are high or where the legitimacy of EU intervention is contested. In terms of the Justice Scoreboard’s own particular ‘stick’, the European Semester, the European Parliament’s own study of national compliance with recommendations under the 2011 and 2012 round of the Semester found that only 18 per cent of CSRs were fully complied with.108 Examining the Romanian and Hungarian cases more specifically, quantitative instruments tend to assume that one of the primary barriers standing in the way of effective enforcement of EU policies is knowledge. They assume in this sense that the key to inducing national change is to make governments at both EU and national levels aware of both the depth of the policy challenges they face and the range of instruments available to them to address those challenges. In the Hungarian and Romanian examples, the ‘compliance problem’ does not seem to be knowledge-based. National threats to the rule of law are not being created inadvertently, or largely by problems of capacity and institutional design, but as part of an intentional programme to maintain and entrench majority rule. The infringements on the rule of law are not incidental to, but a central element of, the ideology and rhetoric of the central government. Faced with such infringements, quantifying the rule of law seems inadequate to the scale of the rule of law challenge the EU is presently facing.

4.5.2 Command and Control Revisited: The Idea of a ‘Copenhagen Commission’ If measures like the Justice Scoreboard are too weak to constitute an effective EU response to rule of law challenges, a further solution could be found in far more coercive measures. As part of its response to the Hungarian crisis, the European Parliament has repeatedly called for the establishment of a ‘Copenhagen mechanism’, charged with ensuring that 107

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See M. Buchs, New Governance in European Social Policy: The Open Method of Coordination (London: Palgrave Macmillan, 2007); (for a more positive assessment) M. Heidenreich and J. Zeitlin, Changing European Employment and Welfare Regimes: The Influence of the OMC on National Reforms (Abingdon: Routledge, 2009). www.europarl.europa.eu/RegData/etudes/etudes/join/2014/497735/IPOL-ECON_ET% 282014%29497735_EN.pdf.

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rule of law criteria demanded of acceding Member States are also complied with once those states have entered the Union. Such a body, according to the Parliament, would monitor and report on the rule of law in the Member States and be able to adopt ‘effective and proportionate penalties which act as an effective deterrent’.109 Such a mechanism should also be sufficiently independent of the EU’s existing institutions to avoid charges of politicisation or mandate stretching.110 Elements of the empirical picture outlined above lend some support for this suggestion. If it is true that the Orban government is defying EU rule of law standards as part of an intentional programme, it seems unlikely that soft ‘naming and shaming’ or persuasion will be effective. A superficial comparison between the Romanian and Hungarian cases also supports this view. The coercive effect of the CVM mechanism, and its linking to real sanction in the form of possible delayed Schengen accession, may well have been a factor in Romania’s corrective actions of late 2012. By this reasoning, states will only comply with EU standards if a real cost, either monetary or political, is associated with compliance. One could imagine a number of penalties from the suspension of EU social and cohesion funds to penalty payments under Article 260 TFEU following successful infringement proceedings.111 Unfortunately, the obstacles ranged against such a Copenhagen mechanism are formidable. This begins with the legal basis for such a mechanism. As no explicit basis for creating a new EU institution to monitor the rule of law exists, two unattractive options remain. The first would be to follow the model of the EU Fundamental Rights Agency and to seek adoption under the flexibility clause of Article 352 TFEU. Given the unanimity requirements of this Article, successful adoption seems highly unlikely. A more feasible alternative would be to create an advisory body either alongside or within an existing institution – akin to the rule of law mechanism established by the Commission in 2014. Such a body would necessarily, however, lack sanctioning power, thus obviating the whole point of the Copenhagen proposal. Even were a Copenhagen body successfully established, the obstacles do not end there. Many of the difficulties in utilising sanctions to achieve 109

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European Parliament Resolution of 27 February 2014 on the situation of fundamental rights in the European Union, at 9. Werner-Mueller, n. 17 above at 25; C. Closa, D. Kochenov and J.H.H. Weiler, ‘Reinforcing Rule of Law Oversight in the European Union’ (2014) EUI Working Papers (RSCAS) 25, at 18. On infringement, see Section 4.5.3 below.

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policy change are well known from international relations literature.112 Sanctions often either affect most those who have nothing to do with non-compliant behaviour (i.e. ordinary citizens and businesses in receipt of EU funding) or can be used by the domestic government to foster domestic resentment against external intrusion. Hungary’s experience bears out this fear. Facing the possibility of fines following failure to comply with infringement proceedings in April 2013, the Hungarian government established (and later rescinded) provisions allowing the fines to be paid back through ad hoc taxes levied directly on citizens.113 These taxes were to be directly attributed to EU penalties, encouraging citizens to direct anger that may otherwise have fallen at the government’s door directly at Brussels. The alternative is that governments simply absorb the cost of compliance. We now have the benefit of decades of research on compliance under the Commission’s infringement powers.114 As this has told us, some of the most fined Member States carry consistently poor compliance records.115 Compliance is unlikely where the costs of effective compliance exceed the levied fines or where the norm in question is deeply associated with the central ideological programme of the government.116 Given that the most uncontested breaches may be addressed by political pressure or negotiations prior to any sanctioning decision, governments may simply prefer to pay up than to suffer the humiliation of climbing down over more serious and structural breaches of fundamental values. It is perhaps for some of the reasons above that the response of the other EU institutions to the idea of a Copenhagen Commission has been 112

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Much of this literature adopts a rationale-choice perspective. See e.g. J. Dashti-Gibson, P. Davis and B. Radcliff, ‘On the Determinants of the Success of Economic Sanctions: An Empirical Analysis’ (1997) 47 American Journal of Political Science 2; A. EscribaFolch and J. Wright, ‘Dealing with Tyranny: International Sanctions and the Survival of Authoritarian Rulers’ (2010) 54 International Studies Quarterly 2. ‘Hungary to Pay EU Fines via New Tax on Own Citizens’, EU Observer (17 April 2013). Available at: https://euobserver.com/justice/119835. For an excellent overview, combining both existing literature and own empirical research, see T. Boerzel, T. Hofmann, D. Panke and C. Sprungk, ‘Obstinate and Inefficient: Why Member States Do Not Comply with European Law’ (2010) 43 Comparative Political Studies 11. See European Commission, ‘32nd Annual Report on Monitoring the Application of EU Law’, COM (2015) 329 final. See also, B. Jack, ‘Article 260(2): An Effective Judicial Procedure for the Enforcement of Judgments?’ (2013) 19 European Law Journal. See G. Falkner and O. Treib, ‘Three Worlds of Compliance or Four? The EU-15 Compared to the New Member States’ (2008) 46 Journal of Common Market Studies 2, 296.

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so timid. The proposal of the Foreign Ministers of four Member States for more rigorous rule of law monitoring, including the possibility of financial sanction,117 culminated in 2014 with a Commission-led rule of law mechanism that dispenses with sanctioning altogether.118 This mechanism largely follows the procedures of notice and comment operating via the infringement action, with mere ‘recommendations’ attached to states falling foul of rule of law standards. The mechanism is sufficiently nontransparent that it is difficult to know which states are being monitored and on what grounds. At the time of writing – an example returned to in Section 4.7 – only one state, Poland, has received a recommendation. Given the experiences of Hungary and Romania, as well as the EU’s response to these examples, the idea of a Copenhagen mechanism seems neither feasible nor desirable. Sanctions may be part of an effective EU response but are unlikely to be generalisable into a comprehensive strategy for dealing with rule of law challenges.

4.5.3 ‘Reverse Solange’ and the Judicialisation of an EU Rule of Law Both of the approaches above rely on political institutions and mechanisms to deal with rule of law threats. A third possibility is to use the EU’s judicial institutions as a more active supervisor of constitutional standards within the EU’s Member States. Such a solution, particularly to the Hungarian case, has been proposed by Armin von Bogdandy and others based at the MPI Heidelberg. Their notion of ‘Reverse Solange’ inverts the traditional notion that Member States must accept the supremacy of EU law except in cases of conflict with core constitutional norms. Under ‘Reverse Solange’, national constitutional orders prevail except in cases where essential values, guarded under Article 2 TEU, are under threat. In such circumstances – cases of persistent and systemic breaches of fundamental values – the normal limitations imposed by Article 51 of the Charter would no longer apply. Others have adopted a yet more radical perspective, arguing that Article 2 could also be invoked for everyday violations.119 There is some institutional 117

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Available at: www.rijksoverheid.nl/bestanden/documenten-en-publicaties/brieven/201 3/03/13/brief-aan-europese-commissie-over-opzetten-rechtsstatelijkheidsmechanisme/ brief-aan-europese-commissie-over-opzetten-rechtsstatelijkheidsmechanisme.pdf. Commission Communication, n. 62 above. A. Jakab, ‘Application of the EU Charter by National Courts in Purely Domestic Cases’ in A. Jakab and D. Kochenov (eds.) The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (Oxford: Oxford University Press, forthcoming).

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support for this position: the European Parliament has in the past also called for the limitations on judicial review of Member State action under Article 51 to be removed.120 There is also some support within existing case law – in a series of cases, the Court of Justice has argued that citizenship rights protected under EU law may be invoked in the absence of a cross-border link in circumstances where the ‘essence’ of such rights are deprived.121 Finally, an alternative to ‘Reverse Solange’, combining judicial enforcement with use of the EU institutions, lies in Kim Lane Scheppele’s proposal for systemic infringement actions.122 Drawing on CJEU case law allowing for infringement actions based on ‘general and persistent infringements’,123 a systemic action would allow the Commission to group together different rule of law complaints and bring them before the Court of Justice. While Scheppele’s proposal may be more firmly anchored in existing institutional practice, both of these proposals use a combination of doctrinal innovation and the traditional anchoring of EU authority in rules-based governance to promote national rule of law adherence. To this extent, these proposals both hold faith in and seem to blatantly violate the rule of law classically understood. Ironically, while intended as vehicles to strengthen rule of law protection, they do so by stretching established rules, and their literal meanings, to breaking point. This is the difficulty with the empirical picture above. Hungary’s constitutional changes – while threatening to rule of law standards – were enacted by constitutional means. If the rule of law and provisions like Article 4(2) TEU on respect for national constitutional identity mean something, they surely also imply that constitutions can be changed via the available procedural routes.124 In Hungary’s case, this meant a two-thirds majority, which the government held. There is something of ‘having one’s cake and eating it’ in the Reverse Solange 120

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European Parliament Resolution of 27 February 2014 on the situation of fundamental rights in the European Union, at 15. See Case C-34/09 Ruiz Zambrano v Office national de l’emploi (2011) ECR I-1177; Case C-256/11 Murat Dereci and Others v Bundesministerium fuer Inneres (2011) ECR I-11315. Scheppele, n. 9 above. See L. Prete and B. Smulders, ‘The Coming of Age of Infringement Proceedings’ (2010) 47 Common Market Law Review 23. See, on this critique, J. Komarek, ‘The EU is More Than a Constraint on Populist Democracy’, Verfassungsblog (25 March 2013). Available at: www.verfassungsblog.de/en/ the-eu-is-more-than-a-constraint-on-populist-democracy-2/#.VhT0m_NwbGg.

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proposal in particular. On the one hand, it builds its foundations in adherence to doctrine and respect for enumerated rules. On the other, those very rules, i.e. limitations on EU competence, are to be suspended in the name of rule of law observance.125 A more serious difficulty with judicial enforcement, however, may lie in its excessive faith in the capacity of Courts as institutions. Firstly, how can individuals reach the Court of Justice in the first place? The most likely route seems via the activation of the preliminary reference procedure. In both the Hungarian and Romanian examples, however, it has precisely been the independence of the referring national Courts that is at issue. Secondly, while Scheppele’s proposal avoids the intermediary of national Courts, how can the CJEU effectively enforce its judgments? One of the most important insights of work charting judicialisation in an EU context was its observation that the power of the CJEU (and the regulatory power of the EU more generally) rests on the willingness of national Courts and administrations to apply its rulings in the absence of the traditional enforcement machinery of the state.126 Judicial proposals seek to cut out the national intermediary when that intermediary is precisely what allows CJEU rulings to ‘stick’ and to be effectively implemented and embedded at the national level. As with the other proposals, the difficulties with judicial enforcement are not insurmountable, but they illustrate the folly of seeking a magic bullet to the EU’s rule of law dilemma or placing excessive faith in a single mechanism or set of institutions.

4.6 The Rule of Law from a Governance Perspective To what extent could insights from governance research improve upon the proposals mentioned above or provide guidelines for a more effective roadmap for tackling future rule of law crises? The attention of governance approaches to the multilevel nature of decision-making, and to the interrelation of legal and political institutions, provides some important insights for all of the cases under discussion. These insights can be grouped under four main headings: 125

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As a further point, under ‘Reverse Solange’ it is left to the Court of Justice to decide when a case is sufficiently exceptional to justify the direct invocation of Article 2. Such a stretching of the CJEU’s mandate is likely to raise nerves among national Constitutional Courts. See K. Alter, ‘The European Court’s Political Power’ (1996) 19 West European Politics 466.

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4.6.1 Differentiation The first is the tendency to search for a unitary mechanism to deal with rule of law challenges. This is an instinctive academic and institutional impulse. It is certainly simpler to establish one mechanism applicable to all Member States, and all rule of law deteriorations, particularly to avoid the danger of particular states being singled out for attention. The difficulty, however – as the empirical picture sketched in Section 4.3 tells us – is that the causes and nature of rule of law challenges, as well as the most effective instruments to tackle them, are likely to vary between states. States where the levels of public trust in EU institutions are high, or where the degree of leverage the EU carries over the government is considerable, may be more amenable to direct EU intervention or sanction. By contrast, states in which governments can effectively rally public support against perceived external meddling, or where governments can easily bear the material and political costs of noncompliance with EU rules and penalties, are in a quite different situation. While ‘one size fits all’ may be easier to sell politically, it is difficult to apply domestically. A better alternative may be to adopt a more differentiated strategy. While all states must be monitored on rule of law or fundamental value deteriorations on a universal basis, either through internal bodies like the FRA or external ones like the Venice Commission, the range of legal and political responses institutions like the Commission can utilise should be based on a realistic assessment of their effectiveness. To an extent this already reflects the Commission practice. The Commission relied upon quite different instruments in the Romanian case, e.g. the use of Cooperation and Verification Mechanism, than in the Hungarian one. It also gradually diversified its range of measures against Hungary, from infringement actions dealing with ‘autonomy’-based issues to closer cooperation with the European Parliament in bringing political pressure to bear concerning electoral competition. In short, the EU institutions may be more effective in varying their policy response both between states and between constitutional issues, depending on the legal, political and economic context within which rule of law infringements take place.

4.6.2 Multilevel Action The second insight is related. Governance research has always been concerned with the interrelation of different levels of governance. When transnational actors negotiate or make decisions, they must reflect

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on the domestic constraints of their counterparts. In both the Hungarian and Romanian cases, where EU intervention was successful, it was largely so because it either re-enforced or coincided with decisions by domestic institutions. This is the primary danger of the bypassing of domestic bodies discussed in some of the proposals above: domestic buy-in and pressure is vital in ensuring that transnational intervention does not become a pyrrhic victory. An important example in the Hungarian case concerns the media law. Many of the most contentious aspects of Hungary’s media law were amended from 2011 to 2012 following Council of Europe and EU scrutiny. This scrutiny was, however, re-enforced by domestic institutions, such as the Constitutional Court. It was that Court that began to unravel the government’s media regulations piece by piece from restrictions on particular content providers (the Klubradio case) to more general rules, such as those on revealing journalistic sources and on the powers of the Media Council. In this example, EU intervention was effective only in so far as it was combined with the activity of a domestic interlocutor. In this sense, understanding the domestic context driving possible rule of law infringements is vital in creating effective EU interventions. If we shift attention from the Hungarian to the Romanian examples, the sensitivity of the Romanian prime minister to domestic opinion was a crucial factor in his decision to back track on emergency ordinances altering the quorum for an impeachment referendum. By framing Romania’s rule of law crisis as an obstacle to Romania’s advancement in the integration process, particularly its Schengen membership, the Commission and other Member States established conditions to domestically mobilise opposition to constitutional change.

4.6.3 Governing between Law and Politics This Romanian example also relates to a third insight. A long-held insight of critics of judicial review on fundamental rights ground is that the relative performance of Courts over political bodies in defending human rights norms should not be assumed. As the proceduralist assumptions discussed in Chapter 1 argued, the first and foremost instrument against the side-lining of minorities and accumulation of public power is ordinary politics itself. Again, the empirical story outlined above bears much of this out. In Romania, the resolution of the crisis of summer 2012 was achieved largely through the political process and the judgment of ordinary

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Romanian voters that the prime minister and his coalition were unfit to govern. In the Italian case, the perception of ordinary Italians that the prime minister was too interested in his own power and not enough in Italy’s economic and social regeneration eventually led to his removal at a general election. Even in Hungary, a mild erosion of Fidesz support, and a series of by-election defeats, led to the government losing its ‘supermajority’ in February 2015.127 The weight of the political scrutiny and judgment of ordinary voters is also an important tool in checking violations of the rule of law. EU intervention must also in this sense be a last instance tool: engaged only when ordinary politics has broken down, willing to exercise patience in the weight of political judgment of ordinary citizens and well aligned to domestic electoral processes.

4.6.4 Governing Not Government: The Dispersal of Normative Authority The difficulty of maintaining such a grip on power highlights the reality in modern societies of the dispersal of power discussed in this book’s introduction. This relates to a final insight of governance-oriented research, which concerns the prioritisation of policy objectives. In a complex and differentiated polity, political actors are always likely to have to choose between competing policy objectives and engage in tradeoffs between values. Once again, the Commission is faced with such trade-offs in its engagement with the rule of law. The use of indirect mechanisms to pressure governments, such as suspension of cohesion funds or the application of rules under EU economic governance, poses its own danger, which is that the intrinsic objectives of such programmes (to further economic rather than rule of law objectives) could be compromised. Inevitably, this means the EU needs to focus its energies in terms of rule of law intervention. It must decide which, among the many possible infringements of fundamental values found in particular Member States, are most fundamental. The question of prioritisation cannot be answered by mere empirical observation: it is fundamentally normative in nature. A ‘procedural approach’ – of the type discussed in Chapter 1 – however, would emphasise intervention designed to correct fundamental imbalances 127

‘Hungary’s Fidesz Party Loses Super-Majority’, Financial Times (23 February 2015). Available at: www.ft.com/cms/s/0/36811202-baf2-11e4-945d-00144feab7de.html #axzz3ntdDjuZY.

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within the political process. In this regard, certain elements of Hungary’s constitutional reforms – namely those designed to limit political pluralism by restricting media freedom or altering electoral laws to the detriment of political opponents – are particularly concerning. The priority of the EU, under this view, would not be enforcing rule of law values hierarchically but rather ensuring the domestic political process is sufficiently diverse and pluralistic to defend democratic participation and the ‘governance of rules’ in the long term. A further priority may be mechanisms that suppress minority voices – or those undercounted in ordinary political procedures. In this regard, the recent wave of discriminatory measures and exclusionary political rhetoric128 against migrant groups in a number of central European states should be of high concern. While others may reject this procedural view, at the very least the EU requires a clearer set of core normative standards through which its rule of law interventions can be oriented.

4.7 Conclusion – Poland and Beyond These insights do not add up to a simple mechanism to resolve the EU’s rule of law crisis. They simply provide some guidelines for addressing rule of law challenges through the wide variety of instruments that remain at the EU’s disposal. While this may seem an unsatisfying response, a greater danger may lie in the impulsive idea that a single set of objectives and rules can bind Member States to a single set of justice and rule of law values. It is difficult in this regard not to agree with the Commission’s own Vice President, Frans Timmermans: The Commission must also remain an impartial, objective and independent arbiter, and base itself on the law and the facts on the ground. This means that we can only act against actual measures, not polemics or speeches. You cannot solve a political controversy through a mechanism of the type that we use to enforce the rules of the stability pact. I am even less convinced by proposals aiming to make the application of the rule of law framework more ‘automatic’. I do not believe it is possible to define sufficiently the precise criteria that would trigger automatic reactions. It is a political process. What may work in the field of economic policy cannot 128

Human Rights Watch, ‘Hungary: Locked-up for Seeking Asylum’ (01 December 2015). Available at: www.hrw.org/news/2015/12/01/hungary-locked-seeking-asylum; Deutsche Welle, ‘Slovakia Vows to Refuse Entry to Muslim Migrants’ (07 January 2016). Available at: www.dw.com/en/slovakia-vows-to-refuse-entry-to-muslim-migrants/a-18966481.

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governing justice and t he rule of law necessarily be transposed to an entirely different area such as the rule of law, in which a measure of discretion will always remain unavoidable.129

The question is simply one of how the Commission will use that discretion. At the time of writing, a crucial test case awaits. Poland’s rule of law crisis – precipitated by the landslide win of the law and justice party in national elections of October 2015 – has followed a by now familiar pattern. Arguing that existing public institutions were unrepresentative of Polish political opinion, or even betraying the nation,130 the new government began from its first days of office to fire officials in stateowned companies (or the civil service) seen as insufficiently loyal.131 Part of the move against independent institutions has been heightened by government efforts to control state broadcasters. A new media law, signed on 7 January 2016, allowed for the removal of the existing boards of state broadcasters, providing the Treasury Ministry with the direct authority to appoint board members and rescind existing contracts. Protesting this move, the Director General of the European Broadcasting Union warned that ‘the new regime’s ambition is to turn Polish radio and TV into media instruments for the government, and not for its citizens’.132 The government took the warning of external intervention poorly. In a letter responding to enquiries from the Commission’s Vice President on the FR implications of the new law, Poland’s foreign minister accused the Commission of being ‘inspired by unjust, biased and politically engaged enunciations’.133 As in Hungary and Romania, a central aspect of the debate has been changes to the statute of the Constitutional Tribunal. The Tribunal and government first clashed over the attempts of the previous government to install judges to replace those resigning during 2015. When the new Polish Sejm attempted to invalidate their election, and terminate the positions of the Tribunal’s President and Vice President in November 2015, the 129

130

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133

See Speech of 1 September 2015, Tilburg University. Available at: https://ec.europa.eu/ commission/2014-2019/timmermans/announcements/european-union-and-rule-law -keynote-speech-conference-rule-law-tilburg-university-31-august-2015_en. ‘As Poland Lurches to the Right, Many in Europe Look on in Alarm’ (15 December 2015). Available at: www.nytimes.com/2015/12/15/world/europe/polandlaw-and-justice-party-jaroslaw-kaczynski.html?_r=0. See: www.bloomberg.com/news/articles/2016-02-26/poland-seeks-to-subordinate-state -companies-to-government-agenda. ‘EBU Expresses Dismay at Signing of New Media Bill in Poland’ (07 January 2016). Available at: www3.ebu.ch/news/2016/01/ebu-expresses-dismay-at-signing. Letter of 7 January 2016. Available at: http://blogs.ft.com/brusselsblog/files/2016/01/po lish-letter.pdf.

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Tribunal responded by declaring the election of three of the previously elected judges constitutional.134 The Sejm passed an amendment to the Constitutional Tribunal’s Statute on 22 December 2015.135 The amending act stipulated a default rule whereby decisions of the Tribunal should be determined by a full bench, with decisions (e.g. on the invalidation of government laws) requiring a two-thirds majority. The act withdrew from the Tribunal the power to determine the sequence of its caseload with cases now to be determined in the order of their filing. The act was accompanied by measures allowing the Polish president and minister of justice to launch disciplinary proceedings against individual justices. Given the Tribunal’s case backlog, and the current attempt to install new judges loyal to the government, the cumulative effects of this amendment could be seen as significantly limiting the Tribunal’s capacity to review the new government’s actions. The government submitted the amendments to review by the Venice Commission.136 While the Venice Commission was careful to also apportion some blame to the previous government,137 it rejected all of the government’s main reforms to the Tribunal’s statute as falling below European rule of law standards: While each of the procedural changes examined above is problematic on its own, their combined effort would seriously hamper the effectiveness of the Constitutional Tribunal by rendering decision-making extremely difficult and slowing down the proceedings of the Tribunal. This will make the Tribunal ineffective as a guarantor of the Constitution.138

How should the Union respond? At the time of writing, the EU has responded by acting quickly but also by attempting to dampen divisive political rhetoric. The Polish reforms were used as a first opportunity to activate the Commission’s rule of law mechanism, with the Commission promising to ‘enter into a structured and cooperative exchange with the Polish authorities in order to collect and examine all relevant information to assess whether there are clear indications of a systemic threat to the rule of law’.139 The main precondition for the beginning of dialogue was 134 135

136 137 138 139

Case K-35/15, Decision of the Polish Constitutional Tribunal of 9 December 2015. Amendments of 22 December 2015 to the Act of 25 June 2015 on the Constitutional Tribunal of Poland. Opinion No. 833/2015, CDL-AD (2016) 001. Ibid., at 124. Ibid., at 88. Commission Press Release of 13 January 2016. Available at: http://europa.eu/rapid/pre ss-release_MEMO-16-62_en.htm.

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that Poland’s constitutional amendments should be submitted for review by the Venice Commission: a move the government agreed to. While the future of the Polish government’s confrontation with independent institutions inside Poland is unclear, the lessons of Hungary and Romania will also be instructive in the Polish case. Firstly, in terms of differentiation, Poland sits in a very different position to both Hungary and Romania. As a large Member State that is already a full part of the Schengen zone, that does not wish to enter the Euro area and that carries a low budget deficit, many of the tools of political and economic leverage available in other states are not available here. There may be other forms of financial dependence, however: Poland is a significant recipient of EU structural and agricultural funding, with much of the present government’s support emerging from rural areas that depend on EU assistance. Secondly, in terms of multilevel action, the involvement of the Venice Commission already provides the EU with an additional resource in placing pressure on Poland. Given that the Polish government explicitly invited the Venice Commission to deliver its opinion and committed to respecting its outcome, the government has to a degree been rhetorically entrapped140 into addressing its findings. One of the Venice Commission’s main recommendations was to urge the government to respect the upcoming ruling of the Constitutional Tribunal on the 22 December amendment, and to recognise its valid quorum in making that ruling.141 Given the lessons of the Hungarian and Romanian cases, sticking closely to domestic institutions, and reenforcing the opinions of the Polish Constitutional Tribunal itself (which strongly rejected the government’s amendments in an opinion rendered on 9 March142), is likely to be a more fruitful EU strategy than any purely independent assessment of constitutional reform. The Commission followed precisely this strategy in issuing its first ever ‘Rule of Law Recommendation’ on 27 July.143 The Recommendation repeatedly used the opinions of the Venice Commission, and provisions of the Polish Constitution, to argue that the 22 December law fell foul of rule of law standards, constituting ‘a situation of a systemic threat to the 140

141 142 143

This phrase is taken from F. Schimmelfennig, ‘The Community Trap: Liberal Norms, Rhetorical Action and the Eastern Enlargement of the European Union’ (2001) 55 International Organization 1. Opinion No. 883/2015 at 43. Case K-47/15, Decision of the Polish Constitutional Tribunal of 9 March 2016. Commission Recommendation regarding the rule of law in Poland, C (2016) 5703 final.

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rule of law in Poland’.144 The recommendation particularly focused on the government’s refusal to implement prior judgments of the Constitutional Tribunal, including via the refusal to publish judgments in the official journal (thereby depriving them of full legal effect). While it is certainly too early to tell whether the rule of law dialogue will come to a successful conclusion, the strategy of bringing multiple pressure points to bear has produced, at the time of writing, some limited initial successes.145 Via an amended law adopted on 22 July 2016, the Polish government acceded to some of the Commission’s demands, removing the two-thirds majority voting rule on the Tribunal, allowing more accelerated proceedings for important cases, and limiting the involvement of actors outside the Court in disciplinary proceedings against justices. Finally, in terms of both the law–politics relation and the dispersal of normative authority, the EU is likely to be forced to pick its battles in the Polish case. As with the Hungarian example, limitations on broadcasting may be easier to tackle under the existing acquis, with the EU’s AVMS Directive providing the possibility of infringement proceedings in so far as the autonomy of foreign broadcasters is also affected by current reforms. This may free political space to make judicial independence the central aspect of direct rule of law engagement with Poland. Once again, the rule of law recommendation followed this strategy to some extent, discussing media changes largely in terms of the role of the Constitutional Tribunal. Limitations on that Tribunals mandate, the Commission argued, would be likely to have a detrimental effect on its ability to check the constitutionality of reforms by the government on other public institutions.146 Building political support for further EU intervention is likely to be crucial. On 13 April, the European Parliament adopted a Resolution on Poland, urging the government to implement the recommendations of the Venice Commission.147 Going forward, it is likely to have a higher degree of unity in placing further pressure than in Hungary and Romania: Poland’s Law and Justice Party is part of neither of the EP’s main political groupings. At the same time, the government’s actions have met with significant domestic resistance: large public protests – particularly comprising younger voters – accompanied each of the 144 145 146 147

Ibid., at 72. For the Commission’s evaluation of this law, see ibid., 40–71. Ibid., at 66. European Parliament Resolution of 13 April 2016 on the situation in Poland, 2015/ 3031(RSP).

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government’s major reform proposals.148 With local elections upcoming in 2017, successful EU intervention will also require sensitivity to the ebb and flow of domestic political opinion. While these ‘lessons’ seem to leave EU rule of law protection on an uneasy footing – blowing in the winds of political change – they also speak to the distinctive strengths and weaknesses of the EU as an organisation. While the lack of a distinct and comprehensive legal basis for rule of law intervention could be seen as a weakness for the Union, it is also a strength in so far as it allows the EU to tailor its strategies of intervention to the distinct circumstances of each state, and to enlist the help of various domestic and international organisations to bring pressure to bear on governments keen to use their power to distort the constitutional basis both of their own states and the EU as a whole. A ‘governance approach’ to the rule of law lacks the decisive clarity of a unitary Copenhagen Commission. It may yet deliver, however, something even more in demand, given the continued erosion of rule of law standards across the Union: concrete, if imperfect, results. 148

‘Poland Protests: Tens of Thousands March Again’, BBC News (19 December 2015). Available at: www.bbc.com/news/world-europe-35142582; ‘Poland Rallies against New Surveillance Law Amid “Orbanization” Fears’, Reuters (23 January 2016). Available at: www.reuters.com/article/us-poland-protests-idUSKCN0V10JV.

5 Governing Fundamental Social Rights

5.1 What Are EU Social Rights and Why Might We Need Them? The social rights protected under the Charter are among the most contested of the EU’s human rights catalogue. This begins with the question of whether social rights really are rights at all, a long-standing discussion within international human rights law.1 Without delving into this debate in great depth, its resonance is found in certain elements of the Charter that question the Charter’s bindingness and indivisibility. Most famously, while the Charter was intended to bind together civil and political and economic and social rights into a single legal framework, Article 52(5)’s distinction between rights and principles seemingly relegates certain social rights to a lower status.2 Principles, the Charter tells us, are judicially cognisable only in the interpretation of other laws giving them legal effects. By now, this provision of the Charter has been interpreted by the Court of Justice as meaning that particular rights, i.e. the right of disabled persons to fully participate in public life, are ‘principles’ and cannot therefore independently form the basis of a subjective legal claim.3 This creates real difficulties in founding a coherent EU policy for the governance of social rights. Firstly, it simply creates confusion – which rights in the Charter are rights and which are principles? Secondly, it creates unclear obligations. If a right protected under the Charter is in fact a ‘principle’ rather than right, what kind of obligations follow? Does this make social rights under the Charter mere rhetorical commitments; acts that simply re-state existing EU social law? Or does this simply shift 1

2

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See e.g. P. Alston and G. Quinn, ‘The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 2. See, for a longer discussion, J. Kenner, ‘Economic and Social Rights in the EU Legal Order: The Mirage of Indivisibility’ in T. Hervey and J. Kenner (eds.) Economic and Social Rights under the EU Charter of Fundamental Rights (Oxford: Hart, 2006). See Case C-356/12 Wolfgang Glatzel v Freistaat Bayern, Judgment of 22 May 2014.

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the burden of protection from legal institutions like Courts to political ones like the EU institutions, which are under a particular obligation to (in the words of Article 51) respect, observe and promote the rights the Charter protects? If this is a correct reading, i.e. if the distributive and contested nature of social rights places a special responsibility on political institutions to respect and fulfil them, the division of the EU’s competences places a further spanner in the works. The Lisbon Treaty gave the EU a host of ambitious objectives in the social field: at the same time, it did not significantly extend the range of instruments and competences available to the EU institutions to fulfil them.4 In that sense, we are left with a serious imbalance, not just at the level of jurisdiction but also at the level of competence. If the EU institutions were serious about delivering the range of rights protected under Chapter IV of the Charter, ensuring, for example, a baseline of social security or housing assistance to each EU citizen, it would have to simultaneously disobey Article 51(2), which states that the Charter does not establish any new competence for the Union. The EU must fulfil social rights within a Treaty structure that prohibits the holistic realisation of a proper EU social acquis. In spite of these limitations, there remain two important pillars of EU social rights: a positive pillar and a negative pillar. The positive arm is that – even allowing the limits elaborated above – there remains a significant body of EU social law and policy. It is this body that is effectively ‘constitutionalised’ via the Charter. While many of these rights, e.g. on health and safety at work and discrimination law, have a clear link to the market freedoms, the EU’s social policy extends far beyond the traditional market integration paradigm.5 By developing directives – sometimes in collaboration with EU-level social partners – extending rights to parental leave, worker consultation, minimum conditions for part-time workers and maximum working time,6 the Union has delved deeply into functions traditionally confined to the domestic welfare state. It has tried to attach substantive content to a claim seen by many as foundational to the very 4

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M. Dawson and B. de Witte, ‘Welfare Policy and Social Inclusion’ in A. Arnull and D. Chalmers (eds.) The Oxford Handbook of European Law (Oxford: Oxford University Press, 2015), 965. On the benefits of incrementalism, see C. Barnard, ‘EU Employment Law and the European Social Model: The Past, the Present and the Future’ (2014) 67 Current Legal Problems 216. See Directive 2010/18/EU, OJ L 68/13; Directive 2002/14/EC, OJ L 80; Directive 97/81/EC OJ L 14; Directive 2003/88/EC, OJ L 299.

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identity of Europe: that the EU is based on the model of a ‘social market economy’.7 The second, negative arm of EU social rights is associated with what in wider human rights law could be termed the principle of nonretrogression. Even if the EU often lacks the legislative tools to ‘deliver’ social rights, its lack of competence does not relieve it of the duty to ‘respect’ social rights in its activities. This relates to the views of many social policy commentators who, even if they despair at the limitations of EU social policy, at least hope that the EU’s own market integration can leave the basic infrastructure of the ‘European Social Model’ intact.8 This defensive use of social rights – as a shield against the excesses of EU market integration9 – may be a particularly important function given the ‘age of austerity’ (see Section 5.2) in which the Union now finds itself. The internal market – and more recently the demands of ‘stability’ in an integrated Euro area – may mean that the EU itself erodes hard-won social protections established at the national level. Finally, what about a third pillar? The proceduralist assumptions outlined in Chapter 1 discuss fundamental rights as contributing to, rather than restricting, the democratic process. To what extent is this vision relevant to the social rights discussion? In so far as much social rights jurisprudence concerns the defence of minimum social standards, EU social rights law seems a classic example of substantive fundamental rights protection. Social rights are used to protect basic claims to social dignity against the majoritarian impulse to secure economic growth without regard to the impoverishment of those unable to prosper under ‘normal’ market conditions. The Euro crisis has thrown up a further variant of this substantive defence of social rights. The operation of financial assistance under the ESM has easily been conceptualised by many on the left as crude majoritarianism: as a

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On the evolution of the concept, see F. de Witte, ‘The Architecture of a Social Market Economy’ (2015) LSE Law, Society and Economy Working Papers 13. See (sceptical of this possibility) C. Offe, ‘The European Model of Social Capitalism: Can it Survive European Integration’ (2003) 11 Journal of Political Philosophy 4. T. Hervey, ‘Social Solidarity: A Buttress against Internal Market Law?’ in J. Shaw (ed.) Social Law and Policy in an Evolving European Union (Oxford: Hart, 2000), 31–47. See also (in the more specific context of social services of general interest) D.S. Martinsen, ‘Welfare States and Social Europe’ in U. Neergaard, E. Szyszczak, J. van de Gronden and M. Krajewski (eds.) Social Services of General Interest in the EU (The Hague: TCM Asser Press, 2012), 53–71.

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prosperous Northern majority subjecting creditor states to poverty in the name of financial stability.10 As the chapter will argue, there is, however, another view. The EU’s role in social rights protection may not only be to defend social claims but to redress political imbalances that prevent social voices from being properly included in the democratic process, either at the national or EU level. This is as much a problem with the EU’s own approach to policy-making as a national problem: the EU’s management of the Euro crisis, as we will see, has created severe problems of democratic accountability that make traditional mechanisms for the governance of social rights at the national level increasingly obsolete.11 Both the ‘positive’ duty of elaborating social rights and the negative duty of non-retrogression may have to be complemented by a third duty: to ensure that, in areas where the EU acts, appropriate channels to deliberate and contest the effects of economic integration on social rights, from strike action to judicial review or parliamentary scrutiny, remain open. In addressing these three elements to the governance of EU social rights, the chapter will proceed in three main steps. Section 5.2 will be devoted to gathering an empirical picture. By focusing on the experiences of three ‘bailout’ states – Ireland, Portugal and Greece – since the onset of the Euro crisis, the section will discuss how EU policy has affected the enjoyment in those countries of social rights. Section 5.3 will examine developments at the European level. How have the EU institutions been involved in ‘governing’ social rights during the crisis? This section will rely on case law of the European Social Committee, and a survey conducted by the European Parliament, to examine the division of responsibilities between national and EU institutions in protecting or eroding social rights during the crisis years. Finally, Section 5.4 will conclude by examining the future of social rights protection in Europe through three principle institutional duties. As that section will argue, providing avenues for political contestation of EU economic decisions, and clarifying the division of social responsibilities between different EU actors, may be a key element of more effectively governing EU social rights in a ‘postcrisis’ EU. 10

11

For an (admittedly much more nuanced) account, see W. Streeck, ‘German Hegemony: Unintended and Unwanted?’, Le Monde Diplomatique (May 2015). Available at: http:// wolfgangstreeck.com/2015/05/15/german-hegemony-unintended-and-unwanted/. On these larger accountability deficits, see M. Dawson, ‘The Legal and Political Accountability Structure of “Post-Crisis” EU Economic Governance’ (2015) 53 Journal of Common Market Studies 5.

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5.2 Social Rights in the Age of Austerity The reflections above on the limitations to the full development of EU social rights are also important to keep in mind when discussing the more concrete case of social rights protection during the Euro crisis. A key element of the ‘negative’ arm of EU social rights relates to the limits of EU competence in relation to social policy. As a result, EU integration is at least partially legitimised by its protection of the autonomy of the national social state.12 Integration, under this view, improves economic competitiveness, and thereby re-enforces the social state’s fiscal foundations, without prejudice to the political process of redistribution at the national level. It remains open to the nation state how to ‘share the bounty’ of economic growth, or develop social programmes to cushion the effects of economic adjustment. While this delicate ‘social constitution’ of the EU has been unravelling for some time,13 the provisions of financial assistance to Eurozone states during the crisis surely represent the most serious challenge to this model. The Memorandums of Understanding (MoUs) signed between four Eurozone states and the EU institutions from 2010 to 2015 all contained detailed social provisions. Social reforms, and welfare retrenchment, were seen not as peripheral to, but as a key precondition for, the realisation of both fiscal stability and economic competitiveness.14 Each financial adjustment programme contains detailed measures eroding key social rights protections; at the same time, few provisions explicitly challenge the social acquis as laid out in EU legislation, i.e. the limited set of entitlements provided under EU secondary law. In this sense, studying social rights during the crisis is vital to understanding the larger empirical picture of how the EU governs the boundaries between social entitlements and its broader policies. All of the EU’s financial assistance programmes were conducted under the shadow of severe economic crisis. Three non-Eurozone states (Hungary, Latvia and Romania) received EU financial assistance packages prior to the full onslaught of the sovereign debt crisis. Four other Eurozone states (Greece, Portugal, Ireland and Cyprus) received financial assistance, 12

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C. Joerges, ‘What Is Left of the European Economic Constitution?’ (2004) 13 EUI Working Papers (Law) 12. See e.g. the account in M. Maduro, ‘Europe’s Social Self: The Sickness unto Death?’ in J. Shaw (ed.), n. 9 above, 327–332. M. Dawson and F. de Witte, ‘Constitutional Balance in the European Union After the Euro Crisis’ (2013) 76 Modern Law Review 5, 823–828.

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however, during a time of high market speculation. During this period, pressure and doubt regarding the ability of governments to finance their debt not only threatened fiscal stability in those states but questioned the viability and future of the Eurozone as a whole. Economic and social governance has in this sense been conducted under the shadow of threat and emergency, with policy-makers often repeating the mantra that alternative policy courses would be either disastrous or unavailable (‘alternativlos’).15 As a result, the EU has also conducted financial assistance under a governance structure of emergency rule. Agreeing that greater fiscal capacity was vital in fighting speculation on the euro’s survival, yet facing UK recalcitrance, the principal financial assistance mechanism created by EU leaders, the ESM, was established outside of the EU’s institutional framework. While the European Parliament has adopted a number of legislative measures in relation to economic governance, it has no control over financial assistance.16 Monitoring of financial assistance has been delegated to the infamous ‘Troika’, made up of representatives of the Commission, ECB and IMF, and directly accountable to Eurogroup ministers, who have been decisive both in setting conditions for financial assistance and in monitoring compliance. This executive-led pattern of rule has important implications for analysing how social rights have been governed during the crisis years.

5.2.1 Greece There is little time here to discuss the origins of the Greek crisis. By 2010, however, the country’s financial troubles were sufficiently grave as to require significant EU intervention. At the time of writing, Greece has received three EU bailouts. The first, in March 2010, was financed under a bilateral Greek Loan Facility managed by the Commission, as well as an IMF contribution, and totalled 110 billion euros in disbursements. The second, in March 2012, extended a further 130 billion euros of credit, via the European Financial Stability Facility, a transnational funding mechanism set up prior to the establishment of the ESM. The third

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On this tendency of rule during the economic crisis, see J. White, ‘Emergency Europe’ (2013) 63 Political Studies; S. Zizek, ‘A Permanent Economic Emergency’ (2010) 64 New Left Review. On the role of the EP in EU economic governance measures, see C. Fasone, ‘European Economic Governance and Parliamentary Representation: What Place for the European Parliament?’ (2014) 20 European Law Journal 2.

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bailout, agreed in August 2015, allows the transfer of up to 86 billion from the ESM to Greece during the period from 2015 to 2018. Each bailout has been accompanied by internal memoranda of the Greek government, detailing fiscal adjustment plans to ensure that loans could be repayed, and bilateral Memorandums of Understanding between Greece and the European Commission (signed on behalf of the Eurozone states). All of these memoranda carry significant implications for the enjoyment of social rights.17 Greece’s general social situation since the onset of the crisis has been one of rapid deterioration.18 Recent Eurobarometers give a snapshot of how Greeks experience the social effects of the crisis: 82 per cent of Greeks – according to a 2014 Eurobarometer – (and 61 per cent of Portuguese) report dissatisfaction with their working conditions,19 with 88 per cent reporting that their working conditions have worsened in the last 5 years.20 A special Eurobarometer published in 2012 provides a yet more harrowing picture: 97 per cent of Greeks (and 93 per cent of Portuguese) report a rise in poverty.21 Sixty-two per cent say it has become more difficult to access healthcare,22 with 45 per cent saying that their household had ran out of funds at some point in the past year to pay for essential goods and services. On almost any indicator, from educational access to employment to housing, Greeks report higher levels of dissatisfaction and social deprivation than nationals of other Member States. Much of this deprivation emerges from Greece’s general economic situation, including a severe economic contraction between 2009 and 2014 and a concomitantly steep rise in unemployment (in 2014, the general and youth unemployment rates stood at 26.5 per cent and 52.4 per cent, respectively). Many potential social rights infringements emerge, however, from specific legislative changes and the removal or curtailment of social 17

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19 20 21 22

Much academic work distinguishes between the labour and non-labour elements of social rights: see e.g. the chapters contained in C. Kilpatrick and B. de Witte (eds.) ‘Social Rights in Times of Crisis in the Eurozone: The Role of Fundamental Rights Challenges’ (2014) EUI Working Papers (Law) 5. Here, I will adopt a broad definition (as reflected in the EU Charter itself) including rights under Chapter 4 of the Charter relating to collective bargaining, working conditions, social security and health. See indicators on Greece reported in ‘Social Europe – Aiming for Growth: Annual Report of the Social Protection Committee on the Social Situation in the EU 2014’ (Luxembourg: Office for Official Publications of the EU, 2015), 239–248. Eurobarometer 398, at 9. Ibid., at 16. Eurobarometer 338, at 6. Ibid., at 66.

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programmes alleviating social deprivation. These legislative changes have tended to escalate as Greece’s crisis has progressed. The first set of legislative changes can be associated with the MoU signed after Greece’s initial 2010 bailout. Prior to the MoU, the Greek government set out a series of changes in two internal memoranda adopted in May 2010.23 The explicit aim of Greece’s response was to seek a form of internal devaluation.24 In the absence of currency depreciation as a means of fostering economic competitiveness, economic growth was to be fostered through wage competitiveness. As the memoranda argued: In line with the lowering of public sector wages, private sector wages need to become more flexible for an extended period of time. Employment protection legislation will be revised, including provisions to extend probationary periods, recalibrate rules governing collective dismissals, and facilitate greater use of part-time work.25

The promise was kept. Legislative acts passed in 2010 reduced notification periods for dismissal, extended probationary periods on contracts and made it easier for workers to be hired on fixed-term contracts.26 For those under 25, new apprenticeship contracts were created, with an alternative minimum wage set at 80 per cent of the normal minimum (with conditions excluded from national collective bargaining agreements). Legislative changes affected the wider system of collective bargaining.27 Greece carried not only an extensive system of sectoral collective agreements prior to the crisis but also a system of adopting the applicable agreement most favourable to the worker (where provisions of sectoral or firm-level agreements collided).28 Following Troika criticism, 2011 23

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25 26 27

28

Memorandum of Economic and Financial Policies, Greek Ministry of Finance, 3 May 2010; Memorandum of Understanding on Specific Economic Policy Conditionality, Greek Ministry of Finance, 2 May 2010. On strategies of internal devaluation and their likely effectiveness, see F. Scharpf, ‘Political Legitimacy in a Non-Optimal Currency Area’ (2013) MPIfG Discussion Papers 15 14. Memorandum of Economic and Financial Policies, n. 23 above at 12. Law 3863/2010. See T. Schulten and T. Mueller, ‘A New European Interventionism? The Impact of the New European Economic Governance on Wages and Collective Bargaining’ in D. Natali and B. Vahercke (eds.) Social Developments in the European Union (Brussels: European Trade Union Institute, 2012), 181–214; M. Yannakourou and C. Tsimpoukis, ‘Flexibility Without Security and Deconstruction of Collective Bargaining: The New Paradigm of Labor Law in Greece’ (2014) 35 Comparative Labour Law and Policy Journal 3. On pre-crisis features of the Greek collective bargaining system, see A. Koukiadaki and L. Kretsos, ‘Opening Pandora’s Box: The Sovereign Debt Crisis and Labour Market Regulation in Greece’ (2012) 41 Industrial Law Journal 3, 278–281.

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legislative amendments suspended this principle, allowing firms to negotiate firm-level collective agreements with disorganised ‘workers’ associations’. While the Greek government has claimed that this move still respects the nationally and EU protected right (under Art. 28 of the Charter) to collective bargaining, it has been frequently criticised by social partners and academics as representing ‘individualisation’ of labour.29 Firm-level associations, lacking the power or experience to mobilise strike action, are likely to have far more limited tools to resist pressure on working conditions than larger sectoral unions. Greece’s economic crisis continued to worsen in the following years. By 2012, the social partners began a process of dialogue. By February 2012, the main trade union and employer organisations had agreed a series of measures aimed at averting strike action and freezing wages in return for maintaining bonus and holiday payments and respecting existing collective agreements.30 This agreement was criticised by the Troika, as well as by the Greek government, as falling short of expectations, limiting the ability of the Greek labour market to remain ‘flexible’ and ‘cost competitive’.31 As a result, Greece’s second bailout saw a range of further measures restricting social entitlements. The main element of this – justified in the accompanying memorandum as improving wage competitiveness relative to peers in Portugal and Eastern Europe – was extensive minimum wage reductions.32 These reductions, enacted in 2012, resulted in a 22 per cent reduction of the minimum wage and a further reduction in wages applicable to younger apprentices (now compensated at 68 per cent of the national minimum). A second plank of the reforms was further limitations on collective bargaining.33 Legislative intervention suspended any collective agreement provisions providing for automatic wage increases. It also limited the effects of in-force agreements to 3 years, stipulating that – if no new agreement was reached – remuneration would revert to the basic wage 29 30

31

32 33

Ibid., at 277. See the description in M. Yannakourou, ‘Challenging Austerity Measures Affecting Work Rights at Domestic and International Level: The Case of Greece’ in Kilpatrick and de Witte, n. 17 above, 19. See Memorandum of Understanding on Specific Economic Policy Conditionality, Greek Ministry of Finance, 9 February 2012 at 25. Available at: www.tovima.gr/files/1/2012/02/ 10/mnhmonioagglika.pdf. Law 4046/2012. For a summary of the second MoU reforms in the field of labour law, see Koukiadaki and Kretsos, n. 28 above, 297–301.

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stipulated in the prior agreement. This could again be criticised as harming the spirit if not the rule of collective bargaining rights: under such a regime, the incentives for employers to negotiate new agreements or set new wages at any level more favourable than the basic wage seem to be reduced. Finally, rules on access to arbitration were reformed. On this issue, Greece has travelled some way. A tradition reserving to employees the right to request arbitration was reversed following a 2012 Act, whereby requests for arbitration now required the consent of both parties.34 Further changes limited the substance of arbitration, excluding provisions beyond wage setting from their ambit and demanding that decisions be based on economic and financial, as well as statutory considerations.35 For EU-level social actors, such as the ETUC, the cumulative effect of these reforms could be summarised quite succinctly: ‘in short, the whole system of free collective bargaining in Greece has been dismantled’.36 The accuracy of this statement depends on future developments. Many legislative measures following Greece’s third bailout are yet to be agreed. The terms of the MoU accompanying that bailout, however, provide an indication of some likely reforms. The MoU is careful to adopt socially ameliorative language. The recovery strategy takes into account the need for social justice and fairness, both across and within generations. Fiscal constraints have imposed hard choices, and it is therefore important that the burden of adjustment is borne by all parts of society and taking into account the ability to pay.37

This language is accompanied by a highly ambitious fiscal target, aiming for a 3.5 budgetary surplus by 2018. The measures envisaged to achieve this focus on the spending side and are likely to have a high impact of poverty. Pension measures, for example, aim at raising the retirement age to 67 and disincentivising early retirement in a context of deep youth unemployment.38 These reforms aim at achieving a saving 34 35 36

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Act of the Council of Ministers 6/2012, Art. 3(1). Ibid., Art. 3(3). ETUC Troika Report, at 3. Available at: www.etuc.org/IMG/pdf/THE_FUNCTIONING_ OF_THE_TROIKA_finaledit2afterveronika.pdf. Memorandum of Understanding between the European Commission, the Hellenic Republic of Greece and the Bank of Greece, 19 August 2015, at 4. Available at: http:// ec.europa.eu/economy_finance/assistance_eu_ms/greek_loan_facility/pdf/01_mo u_20150811_en.pdf. Ibid., at 13.

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equivalent to 1 per cent of national GDP by 2016. Health measures also aim at significant spending cuts, with prescription drug limitations likely to limit the ability of citizens relying on the National Health Service to gain access to up-to-date treatment. In a rather explicit embrace of a ‘race to the bottom’ in social standards, the MoU even asks that Greece allow drugs onto the list of prescribed medications only if their cost is among that of the lowest three EU members.39 In terms of social welfare, the MoU contains one potentially protective measure: the promise of a guaranteed minimum income scheme. This would be designed to provide a minimum social safety net for the most vulnerable and was tested through an initial pilot scheme in Greece launched in 2014.40 This has to be seen in the light, however, of other restrictive measures that explicitly limit other forms of social welfare. According to the MoU, the government will Commit as a prior action to agree the terms of reference and launch a comprehensive Social Welfare Review, including both cash and in-kind benefits, tax benefits, social security and other social benefits, across the general government, with the assistance of the World Bank, with first operational results to be completed by December 2015, targeted to generate savings of ½ percent of GDP annually which will serve as the basis for the redesign of a targeted welfare system.41

Revisiting the traditional idea mentioned at the beginning of this section, i.e. that EU measures should be relatively neutral in terms of the diverse systems of national social policies, the MoU is quite clear in its views on the presence in Greece of a universal welfare system. The future is welfare as targeted minimum subsistence: a safety net for the most desperate, not for the provision of universal social benefits across classes and generations. To what extent is this approach replicated in the other ‘bailout’ states?

5.2.2 Portugal Portugal entered into its own financial assistance programme 1 year later than Greece, in May 2011, through a 78 billion euro package dispersed via the IMF and the temporary European Financial Stability Facility 39 40

41

Ibid., at 16. For a discussion, see V. Lalioti, ‘The Curious Case of the Guaranteed Minimum Income: Highlighting Greek Exceptionalism in a Southern European Context’ (2015) Journal of European Social Policy. Ibid., at 17.

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(EFSF). The initial measures pursued under Portugal’s MoU also aimed at significantly curtailing state spending on social, educational and health programmes while pursuing wage moderation and greater labour market flexibility. At the centre of 2011’s MoUs were a series of measures aimed to reduce what was perceived as overspending on health and pensions coverage compared with similarly placed EU Member States. The 2012 budget thus committed Portugal to cost-saving measures in the health sector amounting to 550 million.42 Reforms were put in place to cut pharmaceutical costs, introduce fees for GP and hospital visits and remove tax allowances and employer contributions subsidising private health insurance. These measures were further radicalised when the Portuguese MoU was revised in December 2011. This demanded a further 1,000 million in health savings including a 200 million euros cut in hospital costs through staff reductions, the concentration of services in more urban areas and other efficiency measures.43 The December MoU revision also targeted significant savings in the pension field, aiming to achieve in 2012 1,260 million in pension savings.44 This was to be achieved by removing two bonus payments for pensioners earning more than 1,000 euros and one for those earning above 485 euros. An October 2013 amendment further cut pension benefits for those earning above 600 euros by approximately 10 per cent, as well as elevating the retirement age to 66. In the field of labour rights, many of the initial measures pursued by the government concerned wage reductions in the public sector, following the model of internal devaluation set in the Greek case. The 2011 budget aimed at reductions of between 3.5 per cent and 10 per cent in the salaries of public sector employees earning more than 1,500 euros. The 2012 budget once again further reduced public sector salaries by 14.3 per cent, removing holiday and Christmas bonus payments. In 2012, changes to the labour code – later deemed by the Portuguese Constitutional Court to be unconstitutional45 – made performance-related dismissals easier, removing the requirement that employers examine the possibility of transfer to another position prior to dismissing a worker. In 2013, the 42

43

44 45

Memorandum of Understanding on Specific Economic Policy Conditionality between the European Commission and Portugal, 17 May 2011, Point 1.10. Letter of Intent, Memorandum of Economic and Financial Policies, and Technical Memorandum of Understanding between Portugal and the IMF, 9 December 2011, Point 1.10, 1.28. Ibid., Point 3. Portuguese Constitutional Court Decision 602/2013 of 20 September 2013.

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government reduced severance payments, limited overtime compensations, suspended four public holidays and reduced annual leave.46 Many of these legislative changes were in violation of in-force collective agreements.47 As such, measures implementing the MoUs seem to have had a serious impact on the functioning and level of coverage of the Portuguese system of collective bargaining. According to ETUC, 116 collective agreements were extended in 2010 and only 9 were in 2013. The overall number of workers covered by private sector collective bargaining has shrunk from 1.5 million to 300,000 workers from 2010 to 2012.48 The larger effects on poverty, health and social exclusion in Portugal have also been significant. By 2013, according to Eurostat, 27.4 per cent of the Portuguese population and 31.6 per cent of Portuguese children were at risk of poverty.49 A 2014 study commissioned by the WHO and European Health Observatory on the impact of the financial crisis on health in Portugal reports a number of declining indicators from heightened levels of clinical depression to likely increases in drug use and suicide.50 Given measures to centralise and rationalise patient care, access to health care also presents a major challenge. Portuguese physicians report a significant increase in difficulties associated with accessing medical exams and treatments, associating these difficulties with newly introduced co-payment and transportation costs.51 Portugal exited its EU/IMF programme in May 2014, following a significant improvement in its budgetary position. While this may relieve some of the pressure on social standards, the government will remain under ‘post-programme surveillance’ (PPS) until at least 75 per cent of its initial financial assistance is repaid. The early PPS reports indicate no quick abating of EU pressure for continued social reform, particularly of 46

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48 49

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European Commission, Economic Adjustment Programme for Portugal: 8th and 9th Reviews, DG ECFIN Occasional Papers 164, November 2013, at 29. See J. Gomes, ‘Social Rights in the Eurozone: Work Rights in Portugal’ in Kilpatrick and de Witte, n. 17 above, 82. ETUC report on Troika, at 3. http://ec.europa.eu/eurostat/statistics-explained/index.php/People_at_risk_of_poverty_ or_social_exclusion. C. Sakellarides, L. Castelo-Branco, P. Barbosa and H. Azevedo, The Impact of the Financial Crisis on the Health System and Health in Portugal (Copenhagen: World Health Organization, 2014), 27–28. See the survey of physicians conducted by the Portuguese National Public Health School as quoted in R. Rodriques and K. Schulmann, ‘Impact of the Crisis on Access to Healthcare Services: Country Report on Portugal’, in H. Dubois and D. Molinuevo (eds.) Access to Healthcare in Times of Crisis (Eurofound: Publications Office of the European Union, 2014).

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the collective bargaining system. The spring 2015 PPS report criticises, for example, the slow shifts towards ‘decentralised wage setting’ in Portugal and the unwillingness to increase firm-level collective bargaining.52 Even in the absence of pressure via financial assistance, the EU is likely to continue to exert influence on Portugal via other processes such as the European Semester. For 2015, Portugal was recommended to: Promote the alignment of wages and productivity, in consultation with the social partners and in accordance with national practices, taking into account differences in skills and local labour market conditions as well as divergences in economic performance across regions, sectors and companies. Ensure that developments relating to the minimum wage are consistent with the objectives of promoting employment and competitiveness.53

Pressures relating to labour market flexibility and wage competitiveness are likely to continue to have an influence on Portuguese social and labour rights.

5.2.3 Ireland While it also went through several years of welfare retrenchment as a result of EU financial assistance, Ireland’s case differs somewhat from the Portuguese and Greek examples. One of the main differences is that Ireland had already undertaken two rounds of severe cuts in public expenditure prior to entering its EU financial assistance programme following a severe banking crisis in the summer of 2008. That crisis sent both unemployment and debt levels in Ireland to new heights. Ireland’s public debt climbed from 24.9 to 91.2 per cent of GDP from 2007 to 2010, with the unemployment rate tripling in the same period. Initial measures in relation to pay and working conditions were quite confrontational.54 Having made a comprehensive agreement on public and private sector wages in November 2008, both the government and the principal private sector confederation – IBEC – sought significant pay reductions following the banking crisis. Having failed to seek agreement with the trade unions, both the government and IBEC reneged on the 52

53

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Post-Programme Surveillance Report, Portugal, Spring 2015, DG ECFIN Occasional Papers 006, July 2015, at 21. See Recommendation 2 of Council Recommendation of 14 July 2015 on the 2015 National Reform Programme of Portugal, OJ C 272/94. On this ‘pre-MOU’ period, see A. Kerr, ‘Social Rights in Crisis in the Eurozone: Work Rights in Ireland’ in Kilpatrick and de Witte, n. 17 above, 42 and 43.

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earlier agreement’s terms, with the government implementing a 5–15 per cent public sector salary cut through legislation enacted in late 2009. The first MoU, signed on 1 December 2010, contained a number of further labour market measures. The main changes demanded were an 11.7 per cent reduction in the minimum wage and a review of the current system of collective bargaining (whereby agreements could be registered and enforced via the national labour Court).55 The Committee entrusted with conducting this review, headed by the Chair of the Irish labour Court, recommended that the registration system be maintained.56 It argued that the system had not led to uncompetitive wage practices, that it fostered industrial stability and that alternatives – such as the shift to the firm-level agreements much loved by the Troika – would be discriminatory and potentially less efficient. In spite of this, as mandated by 2012 amendments to the EU/IMF MoU,57 the government passed an industrial relations act in 2012 overturning most of the Committee’s recommendations and severely restricting the registration procedure for sectoral collective agreements. The act widened the criteria labour Courts must include when considering whether to register agreements to take greater account of the commercial interests of employers, provided for the possibility of employers seeking temporary exemptions from registered agreements, and allowed agreements to be reviewed by the Ministry for Jobs and Enterprise of the Irish government.58 Given the extensive interference of this act on the autonomy of the collective bargaining system, the Irish Trade Union Congress has asked the European Court of Human Rights to rule on its compatibility with the freedom of association rights protected under Article 11 ECHR.59 In the field of social security, the initial 2010 MoU pledged to reduce levels of unemployment and social assistance benefits to levels allowing 55

56

57 58 59

Ireland Memorandum of Understanding on Specific Economic Policy Conditionality, 8 December 2010, at 20. See ‘Report of Independent Review of Employment Regulation Orders and Registered Employment Agreement Wage Settling Mechanisms’, April 2012. Available at: www.djei .ie/en/Publications/Publication-files/Independent-Review-of-Employment-RegulationOrder-and-Registered-Employment-Agreement-Wage-Setting-Mechanisms.pdf. See EU/IMF Programme for Financial Support for Ireland, May 2012, at 10. See Irish Industrial Relations (Amendment) Act 2012, Article 11. See ICTU Press Release, ‘Congress makes Collective Bargaining Complaint to Court of Human Rights’ (06 February 2014). Available at: www.ictu.ie/press/2014/02/06/congressmakes-collective-bargaining-complaint-to-court-of-human-rights-supreme-court-rul ing-flawed-says-legal-expert/.

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for 750 million euros in savings.60 Following the Greek model, this was implemented through targeting certain categories within the population. Jobseekers allowance for claimants between 18 and 21 years old, for example, was reduced by 51 per cent with a 30 per cent cut for those between 22 and 24 years. In later budgets, the 2013 budget added further measures, reducing child benefit and limiting to 6–9 months the duration of jobseekers allowance. In pensions, the 2011 budget saw the gradual phasing in of higher retirement ages, from 66 years in 2014 to 68 in 2028.61 This was accompanied by a range of measures aimed at pension savings in the public sector, implementing an average 4 per cent reduction in benefits and calculating benefits based on average rather than final salary earnings.62 Health spending was also reduced sharply:63 the 2013 budget reduced the health budget by 5 per cent (aimed at savings of 781 million euros). What was the impact of these measures? Certainly Ireland faces deep social problems. Nonetheless, the deprivation of social rights in Ireland may still compare favourably to the even worse performance of other states facing financial assistance. As ETUC (hardly a friend of Troika measures) noted in its Troika report, for example, while public sector wages have been reduced or frozen during the Irish crisis, private sector hourly wages did not fall, with 24 per cent of workers seeing a nominal wage rise.64 Ireland has also not seen a dramatic rise in poverty, with the ‘at risk of poverty’ rate modestly increasing from 14.4 per cent in 2008 to 15.2 per cent in 2013. Ireland’s relative success in implementing its programme and returning to healthy rates of economic growth seems to have given its government greater leeway to negotiate changes more favourable to social rights. The newly elected Fine Gael-Labour government successfully negotiated in 2011 Troika tolerance for an overturning of the decrease in the minimum wage imposed the previous year.65 Ireland left its financial assistance programme in December 2013. It continues to be monitored under the PPS programme. 60 61

62

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64 65

See 2010 Irish MOU, n. 55 above, at 20. For a more detailed account of these measures, see A. Nolan, ‘Welfare Rights in Crisis in the Eurozone: Ireland’ in Kilpatrick and de Witte, n. 17 above. On the 4 per cent cut, see OECD Review of Pension Systems: Ireland (OECD Publishing, 2014), 41. See ‘OECD Health Statistics 2014: How Does Ireland Compare?’,1. Available at: www .oecd.org/els/health-systems/Briefing-Note-IRELAND-2014.pdf. ETUC Troika report, n. 48 above, at 4. See Irish Welfare and Pensions Act 2012, Section 22.

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5.2.4 Common Elements Before considering the EU’s role in forwarding or resisting the potential violations of social rights discussed above, it is worth reflecting on what binds these examples together. Is there a common approach in terms of how states receiving financial assistance have policed the boundaries between financial assistance and social rights? Examining the MoUs in detail, it is clear that many social reforms conform to a common view among the Troika – rarely effectively contested by states – of how to secure future economic competitiveness. In the field of labour markets, this is associated with ‘flexibility’ and a close correlation between wage rates and external demand. If unemployment is high, wage rates must be depressed in order to forge international competitiveness. This is facilitated in all three states by relaxing labour regulations that limit (or even simply establish a burden of justification on) the ability of employers to fire their workers. In the field of social security, this translates into pressure for longer working lives (i.e. the ubiquitous demand for higher retirement ages) and variegated social benefits, designed both to push individuals onto the labour market and to provide lower benefits for the most economically mobile (i.e. younger workers). Universal social benefits, under this model, are often to be replaced with targeted measures, underlain by an extremely basic floor of social protection (akin to the Greek piloting of a guaranteed minimum income scheme). The cost of social protection is increasingly (see e.g. the shift towards charging in the health sector) to be shared between the state and the individual. This model of intervention has had two obvious effects: both of them relevant to the idea of a procedural approach to EU fundamental protection. One is that it may result in a disproportionate impact of austerity measures being felt by already vulnerable social groups. In this sense, austerity measures may deprive groups of social entitlements who are least able to contest the measures affecting them via the ordinary political process. The at-risk-of-poverty rate across the EU as a whole remains wider among women than men, a gap that has widened since the beginning of the crisis.66 66

See EUROSTAT, Europe 2020 Indicators: Poverty and Social Inclusion. Available at: http://ec.europa.eu/eurostat/statistics-explained/index.php/Europe_2020_indicator s_-_poverty_and_social_exclusion#Which_groups_are_at_greater_risk_of_poverty_ or_social_exclusion.3F. See also Brussels Document on the Future of Protection of Social Rights in Europe (Strasbourg: Council of Europe, 2015), 2; European Commission, DG Social Affairs Research Note 5/2014, ‘Women and Men in the Crisis’.

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Organisations representing the disabled report the disproportional impact that cuts on social security, social services and local government has had on the ability of the disabled to fully integrate themselves into a public life (a right protected under Article 26 of the Charter).67 In terms of ethnic and racial discrimination, 70–90 per cent of Roma surveyed by the EU Fundamental Rights Agency across 11 Member States in 2014 find themselves in conditions of severe material deprivation.68 While not every social problem can be laid at the door of austerity, disadvantaged groups are likely to be more adversely affected by EU-led cuts to state capacity and service delivery. At the same time, as put by the Council of Europe’s Commissioner for Human Rights: Those discriminated against in economic, cultural and social life often also find themselves far from political decision-making and may not be in a position to speak up against the effects that austerity measures have on their lives.69

A second effect is that the role of institutions historically charged with enforcing social rights is increasingly eroded. In the field of collective bargaining, measures in all three states either overturned existing collective agreements or limited the role of the social partners in forging new agreements. The principal measures to do so were legislative acts mandating direct government intervention in wage levels and conditions in both the private and public sectors. In some cases, measures went much further, e.g. the Irish government’s measures to limit the system of collective agreement registration, or the Greek government’s limits on the ability of trade unions to engage in labour arbitration. These conclusions of the ILO with respect to Greece’s measures find some echoes in the practices of its Portuguese and Irish neighbours: The suspension or derogation by decree – without the agreement of the parties – of collective agreements freely entered into by the parties violates the principle of free and voluntary collective bargaining. If a government wishes the clauses of a collective agreement to be brought into line with the economic policy of the country, it should attempt to persuade the 67

68

69

See the findings contained in the European Consortium of Foundations on Human Rights and Disability Report, ‘Assessing the impact of European governments’ austerity plans on the rights of people with disabilities, key findings’(October 2012). Available at: www.eesc.europa.eu/resources/docs/austerity2012.pdf. EU Fundamental Rights Agency, Poverty and Unemployment: The Situation of Roma in 11 EU Member States (EU Fundamental Rights Agency, 2014), 11. Commissioner for Human Rights, n. 158 below, at 22.

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parties to take account voluntarily of such considerations, without imposing on them the re-negotiation of the collective agreements in force.70

The effect of austerity in all states has been a re-assertion of the hierarchical regulatory authority of the state (and of transnational institutions) over decentralised arrangements for the delivery of social rights.

5.3 The Role of the EU Institutions: How Responsible and How Accountable? 5.3.1 Allocating Responsibility How should we conceptualise the role of the EU in the many potential violations of social rights we see in this empirical picture? There is one view of the response to the Euro crisis that would absolve the EU of any real responsibility for social rights infringements. On any mainstream reading of the social rights elaborated in the Charter, the EU is only responsible to uphold rights that carry a connection with the application of EU law. One could argue that there was no such connection in the case of financial assistance.71 Such a reading begins with the seminal recent judgments of the CJEU in the Pringle and OMT decisions. According to those rulings, the establishment of the ESM is compatible with the Treaties largely because it operates in a complementary but parallel fashion to the existing division of competences between the EU and its Member States.72 When acting under the guise of the ESM, the Member States are acting according to fiscal policy competences that rest with the nation state. The Court of Justice has on several occasions thus declined preliminary references from national Courts contemplating the compatibility of financial assistance measures with the Charter on the grounds that such provisions lay outside of EU law’s substantive scope.73 70

71

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73

ILO Committee on Freedom of Association, Case No. 2820 (Greece) of 21 October 2010, at 995. See e.g. the analysis contained in K. Touri and K. Touri, The Eurozone Crisis: A Constitutional Analysis (Cambridge: Cambridge University Press, 2014), 231–241. Case C-370/12 Thomas Pringle v Government of Ireland, Judgment of 27 November 2012, at 68. See e.g. Case C-134/12 Corpul National al Politistilor, Order of 10 May 2012; Case C-127/ 12 Sindicator dos Bancarios do Norte, Order of 7 March 2013; Case C-264/12 SindacatoNacional dos Profissionais de Seguro b Fidelidade Mundial, Order of 26 June 2014.

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Extra-EU judicial bodies also adopt this view. The European Committee for Social Rights, examining a number of complaints raised by Greek trade unions, has consistently held that neither economic emergency nor ‘the fact that the contested provisions of domestic law seek to fulfil the requirements of other legal obligations’ removes those provisions from the ambit of the European Social Charter.74 By this reasoning, even if austerity measures are proposed by the EU institutions, their (discretionary) implementation remains the responsibility of the national government. There is even political support for this view. Interestingly, the European Parliament, in its Resolution on the Troika, mourns the social effects of Troika measures yet acknowledges that financial assistance programmes ‘are not bound by the Charter of Fundamental Rights of the EU, or by the provisions of the Treaties’.75 We should not take this position for granted. In fact, it relies on two argumentative leaps. The first concerns the extent of the Member States’ discretion when implementing financial assistance measures. The second – already discussed by a number of scholars76 – concerns the level of integration of financial assistance measures within the EU’s broader institutional and Treaty structure. The European Parliament itself has played a useful role in unpacking this first authority-based element. Following its February 2014 Resolution, it sent questionnaires both to the main EU institutions involved in financial assistance and to the four states that had received financial assistance during the crisis.77 This questionnaire, among other things, enquired into the level of discretion states carried in implementing financial assistance measures. The disparity in responses between EU-level and national actors is striking. All EU actors emphasise the ultimate responsibility of the national government for legislative measures enacted in response to financial assistance. For the Commission, ‘given the MoU is signed by the national authorities, who are also responsible for its implementation, the ultimate 74 75

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ECSR, Complaint 76–2012, IKA-ETAM v Greece, at 50. European Parliament Resolution of 13 March 2014 on Employment and social aspects of the role and operations of the Troika (ECB, Commission and IMF) with regard to euro area programme countries, 2014 (2007) INI, at 32. See C. Kilpatrick, ‘Are the Bailouts Immune to Social Challenge because They Are Not EU Law?’ (2014) 10 European Constitutional Law Review 3. Responses were received from all four Member States (Greece, Cyprus, Ireland and Portugal), finance ministries and central banks. They can be found here: www.europarl.eur opa.eu/committees/en/econ/subject-files.html?id=20140114CDT77307.

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responsibility rests with them’. As a result, ‘it is for the Member State to ensure that its obligations regarding fundamental rights are respected’.78 Similarly for the ECB, ‘the respective government has ownership of, and responsibility for these commitments, including all specific measures’.79 The picture painted is of a flexible and hands-off set of EU institutions, ‘willing to discuss and assess all policy alternatives with national authorities’.80 Already, the empirical picture above contests these views. The abdication of policy responsibility the responses above illustrate may have carried some credibility were the MoUs merely broad and strategic documents, requesting cuts, but leaving governments a large margin of discretion in how to implement them. In practice, all of the MoUs in the three states under discussion were highly detailed. There is often an exact match between the establishment of a detailed measure in an MoU, its reformulation as financial monitoring progresses and specific legislative reforms. This is backed up by national responses, which emphasise the unequal role of the national authorities and the EU institutions in formulating MoUs in the first place. Ireland is the only state to indicate in its response any ability to alter Troika demands via the process of establishing and revising MoUs. Even in the Irish case, however, for the Irish Central Bank, ‘certain elements of the programme were presented as non-negotiable by the Troika’.81 For Greece, ‘given the inability of Greece to access capital markets, its bargaining power was de facto weak’.82 The Cypriot finance ministry is even starker: Programme partners had formulated their own comprehensive macroeconomic adjustment programme. Subsequently, the new government had only very little time and scope to further negotiate aspects of the MoU. The most controversial aspect of the final MoU was the application of the bail-in instrument on bank deposits. The Government was forced to accept this measure under duress.83

Even if we see these responses as indicating an evasion of state responsibility, they at least indicate the significant role of the EU institutions – in the form of the ECB and Eurogroup in particular – in authoring precisely 78 79 80 81 82 83

Response of the European Commission, at 5. Response of the European Central Bank, at 3. Response of the European Commission, at 6. Response of the Central Bank of Ireland, at 1. Response of the Greek Ministry of Finance, at 3. Response of the Cypriot Ministry of Finance, 2 and 3.

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the measures identified in Section 5.2 as restricting the national enjoyment of social rights. The second element of the responsibility conundrum concerns the integration of MoUs within the EU’s legal structure. As Claire Kilpatrick has argued, while there is a high level of diversity between the different legal instruments used to provide financial assistance, all of them carry a high degree of integration of the EU institutions and – even if adopted outside the EU framework – closely interact with legislative measures adopted via the normal Community method. Under the ESM and its forebear, the EFSM, responsibility for monitoring financial assistance and national compliance lay clearly with the Commission and ECB. In doing so, the EU institutions demanded in MoUs that the Member States concerned complied with obligations under EU secondary law, particularly the excessive deficit procedure.84 In any case, Regulation 472/2013 now provides that future financial assistance decisions must be approved via a macroeconomic adjustment programme mandated via a Council decision.85 In this sense, as Kilpatrick points out, even if conditionality measures enacted by EU Member States do not involve an ‘implementation of EU law’, the EU institutions themselves remain directly bound by Article 51’s scope.86 These considerations suggest that the refusal of the European Courts to engage with national Courts on the legal implications of austerity measures may be unfounded. Much depends of course on whether we see a real conflict between the measures discussed in Section 5.2 and fundamental social rights. In the absence of EU case law, that question must be addressed through the jurisprudence and findings of extra-EU bodies.

5.3.2 The European Committee on Social Rights: Evaluating Conditionality’s Social Effects External evaluation of many of the austerity measures indicated above may provide a clearer indication of how the EU has acted in relation to social rights standards. Even if the CJEU has refused to address the compatibility of financial assistance measures with the Charter, national 84

85 86

See e.g. the close links pointed out by Kilpatrick between Greece’s first MoU and the Council’s Excessive Deficit Decision on Greece, Art. 3(d) Council Decision 2010/310/EU. This is confirmed in the Commission’s response to the EP Troika Questionnaire, n. 78 above, at 4. Article 7(2), Regulation 472/2013/EU. Kilpatrick, n. 46 above, at 405.

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austerity measures have been contested and reviewed via the body of case law developed by the European Committee on Social Rights (ECSR). The Greek austerity measures were a particular focus of transnational challenge.87 This may reflect the relative willingness of national Courts to address social rights issues. While, for example, the Portuguese Courts consistently engaged the question of whether measures enacted to meet financial obligations were compatible with rights protected under the Portuguese Constitution, the Greek Courts have been much more hesitant to conduct rigorous rights-based review. While the Greek Council of State has invalidated some national measures, such as measures restricting recourse to labour arbitration88 and cutting supplementary pensions,89 it has accepted the bulk of austerity measures as justified given the exceptional and ‘emergency’ nature of Greece’s fiscal crisis. Reflecting the discussion of the activation of civil society actors through the medium of human rights discussed in Chapter 1, civil society actors (particularly trade unions) have responded to the lack of national success through recourse to transnational bodies. An informal coalition of Greek trade unions, combining pensioners and public and private sector employees, brought a range of judicial challenges to Greek implementing measures to transnational adjudicators in 2011 and 2012. This included seven challenges before the European Committee on Social Rights90 as well as challenges before the ECtHR and Court of Justice. The Luxembourg and Strasbourg Courts quickly dismissed these claims. For the General Court of the EU, reflecting long-standing case law, the applicants (as a broad grouping of social partners) lacked the necessary level of ‘direct and individual concern’ to engage the EU Courts directly.91 In the case of Strasbourg, noting the reasons of the Greek Council of State, the ECtHR granted the Greek government a wide margin of discretion in determining whether the Greek measures 87

88 89 90 91

See also the critical remarks addressed by the ILO, particularly in relation to collective bargaining rights: ‘The High Level Mission echoes the concern expressed to it by many parties that overall, the changes being introduced to the industrial relations system in the current circumstances are likely to have a spillover effect on collective bargaining as a whole, to the detriment of social peace and society at large’. ‘Report on the High Level Mission to Greece’ (19–23 September 2011), at 307. Available at: www.ilo.org/wcmsp5/ groups/public/@ed_norm/@normes/documents/missionreport/wcms_170433.pdf. See Decision 2307/2014, Greek Council of State. Decision 1285/2012, Greek Council of State. See Complaints No. 65/2011, 66/2011, 76/2012, 77/2012, 78/2012, 79/2012 and 80/2012. See Case T-541/10 ADEDY and Others v Council, Order of 2 November 2012; Case T-215/ 11, Order of 27 November 2012.

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constituted an unjustified deprivation of property, noting the ‘exceptional’ nature of Greece’s predicament.92 The applicant’s claims were therefore deemed manifestly ill-founded and thus inadmissible. In this sense, neither of these Courts (surely Europe’s highest judicial bodies) engaged with the substance of whether the Greek measures were compatible with FR standards. By contrast, the ECSR case law has engaged heavily with the Greek case. Most of the measures discussed in Section 5.2 – from potentially discriminatory pay provisions vis-à-vis younger workers and reductions in employment protection to across-the-board cuts in pension provision – were heavily scrutinised vis-à-vis a number of European Social Charter provisions; the most prominent being the right to fair remuneration under Article 4 and the right to social security under Article 12 ESC. This ECSR case law follows a common pattern. The first issue concerns whether the impugned provisions ought to be measured against the standards of the ESC at all. Deploying the same ‘emergency’ reasoning as in other case law, the Greek government insisted in its response to the Committee that restrictive measures were taken in a time of emergency under the cover of EU-led financial assistance. As such, these measures flowed from other international obligations. The ECSR summarily rejects this argument in all complaints, maintaining that states are under an obligation to consider ESC obligations prior to entering other international agreements: ‘the fact that the contested provisions of domestic law seek to fulfil the requirements of other legal obligations does not remove them from the ambit of the Charter’.93 The second issue concerns the margin of discretion afforded to the state. Many of the ESC’s articles discuss progressive realisation, i.e. that the level of protection should depend on the state’s general socioeconomic development.94 Recognising this, the ECSC’s case law recognises that cuts to social provision, pension benefits and labour rights do not per se violate the Charter.95 The consolidation of public finances as a means of safeguarding the sustainability of social security systems can act as a justification for measures limiting social rights provided that enacted measures are necessary and proportionate. 92 93 94 95

See Decisions No. 57665/12 and 57657/12 Koufaki and ADEDY v Greece at 37. Complaint No. 76/2012 Federation of Employed Pensions of Greece (IKA-ETAM) v Greece. See e.g. Art. 12(2) ESC. Conclusions XVI-1, at 11.IKA-ETAM, n. 93 above, at 68.

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The final principal issue therefore concerns proportionality. There are here two important aspects to the ECSR’s case law. The first is that reductions in remuneration or social security must not reduce the social protection system to a condition of minimum subsistence.96 Pension benefits (taken as a whole),97 or minimum wage levels,98 must be such that the elderly or younger workers receive remuneration that exceeds the poverty threshold. Rejecting the approaches of other Courts, the ECSR thus argues that the crisis should not result in social rights being eroded; to the contrary, ‘governments are bound to take all necessary steps to ensure that the rights of the Charter are effectively guaranteed at a period of time when beneficiaries need the protection most’.99 A second aspect of the ECSR’s Greek case law is more procedural in nature. An element of its finding that Greek measures violated the Charter was that the Government had neither consulted social partners on the design of austerity measures nor had it adequately measured their social impacts, or viable alternatives less injurious to social rights: Even taking into account the particular context in Greece created by the economic crisis and the fact that the Government was required to take urgent decisions, the Committee furthermore considers that the Government has not conducted the minimum level of research and analysis into the effects of such far-reaching measures that is necessary to assess in a meaningful manner their full impact on vulnerable groups in society. Neither has it discussed the available studies with the organisations concerned, despite the fact that they represent the interests of many of the groups most affected by the measures at issue.100

As a result, the ECSR ruled a host of measures incompatible with the Charter. These included: the reduction of wages and exclusion from the social security system of younger workers via ‘special apprenticeship contracts’ under Articles 4(1), 10(2) and 12(3) ESC;101 the removal of a probationary period under Article 4(1)102 and the cumulative effects of pension reductions for the elderly under Article 12 ESC and Article 4 of 96 97 98 99 100

101 102

POS-DEI v Greece, at 69. IKA-ETAM, at 74. GENOP-DEI and ADEDY v Greece, at 64–65. IKA-ETAM, at 75. Complaint 79/2012 Panhellenic Federation of Pensioners of the Public Electricity Corporation (POS-DEI) v Greece, at 74. Complaint No. 66/2011 POS-DEI and ADEDY v Greece, at 40; 48–49; 64–65. Complaint No. 65/2011 GENOP-DEI and ADEDY v Greece, at 26–28.

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the 1988 additional Protocol.103 In perhaps the most damning conclusion of this case law (in relation to pension reductions): The Committee thus concludes that the Government has not established, as is required by Article 12(3), that efforts have been made to maintain a sufficient level of protection for the benefit of the most vulnerable members of society, even though the effects of the adopted measures risk bringing about a large scale pauperisation of a significant segment of the population.104

Measures adopted under the Portuguese and Irish bailouts have not, at the time of writing, been the subject of ECSR complaints. Nonetheless, many of the measures adopted under the assistance programmes of those states correspond to Greek measures, such as pension and minimum wage reductions, exclusion of recourse to arbitration for collective agreements and potentially discriminatory provisions applied to younger workers. Aside from the complaints procedure, the Committee’s annual conclusions provide evidence that both states have adopted measures that fall below Charter standards. The Committee’s 2014 Conclusions, for example, found both Portugal and Ireland as being in non-conformity with several sections of Article 4 ESC. For Portugal, a violation of Article 4(1) was found with regard to minimum wages for private sector workers that fell below 50 per cent of the net average wage.105 The committee also found a number of Article 6 violations in relation to the autonomy of the national collective bargaining system.106 For Ireland, referring explicitly to the Greek case law, the 2014 Conclusions note that minimum wages for younger workers in a first position below the minimum income threshold were also not in conformity with Article 4(1).107 For both Ireland108 and Portugal,109 the lack of notice periods for workers in the probationary phase of their contracts (or any corresponding compensation) represented a violation of Article 4(4) of the Charter. As a result, in 2014, of the 21 and 22 respective Articles for which

103 104 105 106

107 108 109

IKA-ETAM, n. 93 above, at 78–80. POS-DEI v Greece, at 76. 2014 Conclusions for Portugal, at 16. Ibid., 30–38. See also the conclusions of the ILO in relation to the impact of crisis measures on collective bargaining in Portugal. Tackling the Jobs Crisis in Portugal (Geneva: International Labour Organization, 2014), 68–72. 2014 Conclusions for Ireland, at 13. Ibid., at 16. 2014 Conclusions for Portugal at 25.

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Ireland and Portugal had accepted ESC applicability, both states received findings of nonconformity for 10 Articles.110 As reflected in our initial discussion in Section 5.1, one should be careful in transposing from the Council of Europe to the EU context.111 The EU Charter’s social rights provisions are often less ambitious than those of the European Social Charter. Where certain rights do overlap – for example the right to collective bargaining under Article 28112 or to social security under Article 34 of the Charter113 – the rights granted under the EU Charter appear more conditional than their ESC counterparts, embedding their protections in the context of existing national and EU law. This embedding in national law may, however, be precisely the point at which the lessons of external ESC review are relevant. In so far as Charter articles denote ‘respect’ for national protections, rather than proactive duties for the EU institutions themselves, the ESC provides an important and legitimate benchmark for judging the adequacy of the EU’s impact on social rights provisions at the national level. Of the Union’s 28 members, all have ratified the 1961 ESC and 16 out of 28 Member States have ratified the revised 1996 Charter. While these ratifications allow national reservations, many of the provisions discussed above therefore represent near-uniform obligations across EU Member States (among EU members, only Croatia, for example, rejects the applicability of Article 12(1) ESC).114 If we see an important function of EU social rights not just as promoting social rights at the European level but ensuring that EU action does not result in national social standards being degraded and overturned (the ‘negative arm’ to EU social rights discussed above), the ECSR’s findings on crisis measures paint a harrowing picture. Combining our findings on responsibility allocation with this overview of the relevant ECSR case law seems to provide an unescapable (if not altogether surprising) conclusion: the Union’s response to the crisis has directly eroded the enjoyment in the EU of a baseline of fundamental social rights. 110 111

112 113 114

2014 Conclusions, at 10. On the inter-relation of the Charter and the ESC, see ‘The Relationship Between European Union Law and the European Social Charter’, European Committee on Social Rights Working Document (15 July 2014), 10–14. Available at: www.coe.int/T/DGHL/Monitori ng/SocialCharter/TurinConference/Working%20document%20Relationship%20EU%20l aw%20_%20Charter%20Final.pdf. See also, J. Flauss, Droits Sociauxet Droit Européen: Bilan et Prospective de la Protection Normative (Brussels: Brulyant, 2002). Corresponding to Article 6 ESC. Corresponding to Article 12 ESC. On ratification of the ESC by EU states, see http://fra.europa.eu/en/publications-andresources/data-and-maps/int-obligations/esc.

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5.4 Four Duties in the Governance of EU Social Rights 5.4.1 Assessing Social Impacts If this conclusion is correct, how should the EU seek to address it? One way of doing so may be through the instruments of ‘new governance’. If one of the key failures of the MoUs signed above was their social or FR blindness, why not mainstream into the area of financial assistance tools developed in other areas of the EU legislative process to ensure ex ante review of FR? An obvious instrument in this regard is impact assessment, designed to fulfil the duty under Article 9 TFEU for the EU to take into account high levels of employment, social protection and the fight against social exclusion ‘in defining and implementing its policies’. In the formulation of his first set of political guidelines for the Commission, the Commission President in 2014 promised that any renewed financial support programme would undergo social, as well as economic, impact assessment.115 The critiques of social IA are well known (many of them discussed in Chapter 3). The limited existing practice of social IA in the field of financial assistance does not augur well for the future. At its best social IA could be a means of driving and informing policy-making, allowing policy-makers to better understand the trade-offs and social costs implicit in their agreements, or allowing negative impacts on social rights to be minimised. The first social IA, produced on the third Greek ‘stability support programme’, is quite different.116 Adopted on 19 August, the social IA in effect followed by some days an agreement whose basic contours had already been determined. In this sense, it reads as an ex post rationalisation and justification of a fait accompli, rather than a document influencing policy design. The Greek IA carries a number of more specific deficiencies. The first is whether it conforms to best practices established by the Commission itself. As part of its May 2015 ‘Better Regulation’ package,117 the Commission produced new guidelines on legislative IA. As part of a promise regarding openness and transparency,118 these included a commitment to stakeholder participation and a 12-week public online consultation for new 115 116

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J.C. Juncker, ‘Political Guidelines for the New Commission’, Speech of 15 July 2014, 18. Commission Staff Working Document: ‘Assessment of the Social Impact of the New Stability Support Programme for Greece’, SWD (2016) 162 final. Commission Communication, ‘Better Regulation for Better Results: An EU Agenda’, COM (2015) 215 final. Ibid., at 4.

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proposals.119 IAs, according to the guidelines, should discuss the costs and benefits of alternative policy courses and, where possible, quantify the range of economic, social and environmental impacts a given measure is likely to induce.120 In the case of Greece’s social IA, this advice seems to have been ignored in its entirety. The IA did not include an online consultation and includes no indication as regards stakeholder participation of any kind. It does not discuss alternatives to the given MoU and includes no comprehensive effort to quantify the distributive impacts of enacted measures. Where this is done, it is conducted selectively: assessing the distributive consequences of closing VAT reductions in different areas, for example, without quantifying the impact of spending cuts.121 Where real data is used, i.e. poverty indicators and their relation to the EU average, these indicators are included in Annex and at no point integrated into the IA’s analysis. A cynical explanation could lie in their dire implications (i.e. the rise of the at-risk-of-poverty rate from 28 per cent to 36 per cent during the crisis against a 24.5 per cent EU average). The second, more fundamental, problem with the Greek social IA, however, is its denial of the very purpose of a social impact assessment, which is to gauge social impacts, allowing policy-makers to understand the trade-offs between economic adjustment and socially regressive measures. In fact, the Greek IA denies that the third financial assistance package is likely to have negative social effects of any kind. Where a negative impact is acknowledged (e.g. that the move from labour to consumption taxes may be distributively regressive in hitting hardest those on low incomes), this is justified on the basis of future investment and growth.122 Under this logic – that social policies inhibiting growth and fiscal consolidation ought to be removed in order that the proceeds of growth can support future social development – the explicit lowering of social protection can be easily justified as having a socially positive impact. As an example, the relegation of Greece from a high performer in terms of OECD indicators on employment protection legislation to at or below the OECD average is celebrated as procuring ‘higher flexibility in the labour market’ and is thus ‘expected to result in more employment opportunities as the product and services markets are opened-up in parallel’.123 What would be seen as retrogression 119

120 121 122 123

Commission Staff Working Document, ‘Better Regulation Guidelines’, SWD (2015) 111 final, 16. Ibid., at 29. Social Impact Assessment, n. 116 above, 10 and 11. Ibid., 9 and 10. Ibid., at 13.

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under a traditional social rights framework is conceptualised as progressive within a social IA. Finally, the most regressive social impacts of the third assistance package, i.e. the pledges to significantly cut pension, health and social security funding, are not discussed at all, with the IA focusing purely on the positive impacts of structural changes in these sectors. If this is the future of the social IA in the field of financial assistance, its added value from the perspective of social rights protection is entirely unclear. Instruments of ‘new governance’ in this instance are used not to better inform policy-making but instead to actively obscure the impact of policy on social rights.

5.4.2 Politicising Europe’s Economic and Monetary Union While one response to this challenge would be simply to urge the Commission to produce better social IAs in the future (and as a basic step, to follow its own guidelines), a more ambitious goal would be to change the constellation of policy actors determining financial assistance measures in the first place. In short, a social IA is useful only if it is able to feed into a meaningful policy-making process in which a diversity of political actors can consider and negotiate the dividing lines between social rights protection and other vital public policy goals (including fiscal stability). Social rights protection is likely to benefit in this regard from a pluralistic political culture at the national and EU levels, in which actors likely to voice social demands are adequately represented. This may carry two dimensions. One of them is the legislative process. Of the three principal political EU institutions, the European Parliament has certainly been the most active in considering concerns over the crisis’ social implications. A number of EP Resolutions have demonstrated parliamentary dissatisfaction with the activities of the Troika and Eurogroup, including in relation to social rights.124 The present structure of the EU, however, deprives the Parliament of any meaningful say on economic governance, from its limited role in the European Semester to its exclusion from intergovernmental mechanisms such as the ESM.125 124

125

See European Parliament Resolution of 6 July 2011 on the financial, economic and social crisis: recommendations concerning the measures and initiatives to be taken, 2010 (2242) INI, Preamble [D]-[H]; Troika Resolution, n. 75 above. See Fasone, n. 16 above.

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As a result, Regulation 472/2013 (adopted via the co-decision procedure!) provides an elaborate process of Commission negotiation and Council authorisation for macroeconomic adjustment programmes for financial assistance states yet provides the EP with no concrete decisionmaking rights bar the possibility to invite the Commission and concerned Member States ‘to participate in an exchange of views on the progress made in the implementation of the macroeconomic adjustment programme’.126 If the effective governance of social rights requires not merely judicial enforcement but the political contestation of economic policies that could conflict with social rights claims, a vital part of the ‘negative arm’ of governing EU social rights surely includes moving beyond the EP’s mere consultative role. An amendment of Regulation 472/2013 or an inter-institutional agreement between the Commission, EP and Council could allow the Parliament to provide a formal opinion or veto over macroeconomic adjustment programmes.127 Given the significant externalities that any such programme entails for citizens both within and out-with financial assistance states, such a move would provide a modicum of political accountability and contestation for measures carrying deep distributive consequences. A second dimension is facilitating pluralism and contestation through a decision-making structures more tailored to social rights protection, particularly social dialogue at the national and EU levels. Regulation 472/2013 makes explicit reference to Article 152 TEFU, which refers to the need for Union action to ‘facilitate dialogue between the social partners, respecting their autonomy’. The empirical picture discussed in Section 5.2 questions significantly whether the EU institutions have heeded this obligation. This once again relates to some of the justifications for EU action in the social rights domain discussed above, i.e. a ‘negative arm’ of social rights protection in which the EU limits its infringements upon the social and ‘labour constitutions’ constituting a distinct constitutional tradition in a number of EU states.128 An important objective of re-imagining EU social rights after the crisis would be 126 127

128

See Art. 7. The EP has explicitly requested this right itself. See Troika Resolution, n. 75 above, at 109. See also, M. Dawson, ‘The Euro-Crisis and its Transformation of EU Law and Politics’ in The Governance Report 2015 (Oxford: Oxford University Press, 2015), 64. On the concept of the labour constitution in Europe, see F. Rödl, ‘Arbeitsverfassung’ in J. Bast and A. von Bogdandy (eds.) Europäisches Verfassungsrecht: Theoretische und Dogmatische Grundzüge (Heidelberg: Springer, 2009), 855–904.

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re-enforcing social partner institutions as domestic bodies able to enforce the Charter’s social rights nationally.129 Finally, politicising the boundaries of EU social rights also involves considering the ‘positive arm’ of EU action in the social rights domain. This was among the promises of Jean-Claude Juncker when he assumed the Commission Presidency in 2014, promising a ‘pillar’ of social rights to rectify the ‘lack of social fairness’ of the crisis years.130 This would both seek to fill gaps in the current EU legislative framework and identify, through soft and hard law measures ‘a process of convergence in the field of employment and social policy performance based on current best practices, drawing for this purpose on existing political instruments’.131 While the coordinates of such a programme are unclear, present discussions include a revision of the contested Posted Workers Directive, new rules on the portability of social security benefits and measures to address employees facing conditions of precarious work.132 Furthering the social acquis may not only be relevant in terms of meeting the Charter’s duty to ‘fulfil’ its full range of rights but also in terms of the specific issue of the governance of financial assistance. On the one hand, the Troika institutions have been careful in their MoUs to leave social obligations emerging from EU secondary law largely untouched. This has arguably led to a distorted burden of adjustment, with areas of social policy primarily linked to national competence (such as pensions and health) facing more rigorous demands than areas attached to EU legislation (such as parental leave or working time). A larger EU social acquis is also a means of curtailing the ability of future financial assistance to limit national social rights. On the other hand, the social acquis has a bearing on ‘labour constitutions’ and the ability of social partners to resist measures likely to have a negative FR impact. As has been observed in the broader context of social 129

130

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This is emphasised by ETUC: ‘especially in those cases where social partner organisations are indeed able to reach a joint agreement or view, the Troika should respect this and abstain from imposing its policy’. ETUC Troika Report, supra, at 10. ‘Setting Europe in Motion: Political Guidelines for the Next European Commission’, Statement to the European Parliament of 15 July 2014, 1. Available at: http://ec.europa .eu/priorities/docs/pg_en.pdf. See the Minutes of the 2141st meeting of the Commission, Tuesday 6 October 2015, PV (2015) 2141 final, at 24. Available at: https://ec.europa.eu/transparency/regdoc/rep/100 61/2015/EN/10061–2015-2141-EN-F1-1.PDF. For a much more ambitious legislative agenda for the new Commission, see S. Garben, ‘Taking Stock of Social Europe: On Structural Asymmetries and Social Safeguards’ (unpublished manuscript, on file with the author), 22 and 23.

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dialogue, employer organisations are unlikely to engage in collective bargaining if the status quo or default rule is deregulatory.133 We saw this in the Portuguese and Greek cases where limitations on the extension of collective agreements reduced the incentives for employers to bargain and the overall coverage of agreements. In so far as a robust social acquis changes the ‘default rule’ or provides the spectre of more rigorous central enforcement of social regulation, these incentives are likely to change. A broader social acquis, or at least the prospect of one, may be a means of encouraging social partners at both the national and EU levels (i.e. through the procedures of Article 155 TFEU) to engage in meaningful dialogue on the elaboration of social rights.

5.4.3 Dividing Social Rights Responsibilities As discussed in earlier chapters of this book, dividing and sharing public responsibilities is a crucial governance task. In so far as governance refers to the dispersal of state power, it creates a problem of responsibility allocation. The positive spin on this dispersion is that a greater number of private actors – see e.g. the paradigm of corporate social responsibility – feel themselves responsible for integrating public interest objectives in their activities. The danger is that – in so far as many are responsible for a given task – none are held responsible, or that responsibility is passed from one actor to another in a circle of evasion and disavowal.134 As Section 5.3.1 has discussed, there is evidence that this has occurred vis-à-vis social rights in the Euro crisis.135 It is not simply, however, that each actor claims a margin of discretion for the other but that accountability itself is evaded and passed between different levels of governance. The questionnaire that was relied upon above is a good example of this. According to the President of the Eurogroup: These agreements were concluded in full respect of the national parliamentary and government scrutiny procedures of all Member States, including 133 134

135

Barnard, n. 5 above, at 214. This is a point referred to by the Council of Europe: ‘States should therefore acknowledge the normative autonomy of each legal sphere dealing with the protection of fundamental social rights: the more far-reaching commitments in the area of social rights cannot be set aside in favour of later and less demanding undertakings and they cannot be side stepped in order to honour other commitments – international or European – that they would be in conflict with’. Brussels Document, n. 66 above, at 5. See also M. Salomon, ‘Of Austerity, Human Rights and International Institutions’ (2015) 21 European Law Journal 4, 522.

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governing f undamenta l social rights those of the Member States seeking assistance. . . This has meant that an extremely high level of government and parliamentary scrutiny of the terms of macro-economic adjustment programmes has taken place at the national level, where the ultimate responsibility was taken for programme financing and implementation.136

In other words, the lack of EU-level political accountability and scrutiny of the MoUs (including their social impact) is mitigated by scrutiny at the national level. If one switches from this to the Portuguese response, one of its first lines is that the national Parliament ‘was not part of the negotiation process and did not adopt the final Memorandum of Understanding’.137 The level of parliamentary scrutiny in some financial assistance states was so ‘extremely high’ that the national parliament was not consulted at all on the principal document framing its assistance measures! Legal authority is also often used in a way that renders it complicit in the accountability evasion game, i.e. not to bind EU actors to their FR commitments but precisely to allow FR commitments to be evaded. From the side of the Member States, this can be seen in the line of national governments facing adjudication by the ECSR and ILO that their actions were taken in compliance with other international obligations, i.e. to their EU and IMF creditors.138 From the side of the EU institutions, it can be seen in the insistence that strict austerity measures are not only permissible but even a constitutional requirement under EU law. The Commission, for example, has justified its pursuit of austerity measures on the grounds that strict conditionality is a requirement of the Treaties.139 The ECB also uses Pringle to argue that it and the Commission play a mere ‘assistance role… without any powers to make decisions of their own’.140 The intergovernmental nature of the ESM is used by the EU institutions as they see fit: sometimes to bolster their claim to regulate; sometimes as evidence that they are doing no such thing (or doing so only obliquely). The alternative is that legal decisions are merely overturned. The August 2015 Greek MoU, for example, explicitly asks the Greek government to compensate the effects of a 2012 ruling by the Greek Council of State finding earlier pension cuts unconstitutional.141 On other occasions, international judgments are used to bolster the claim that national 136 137 138 139 140 141

Response of the Euro-Group, 1 and 2. Response of the Portuguese Ministry of Finance, at 3. See e.g. IKA-ETAM, n. 93 above, at 10. Response of the European Commission, at 1. Response of the European Central Bank, at 3. August 2015 Greek MoU, at 14.

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prerogatives are respected. The Commission has used, for example, the case law of the ECtHR as evidence that Greece does in fact enjoy a wide margin of appreciation in implementing assistance measures (thus confusing the normative and empirical dimensions of the MOA doctrine).142 The refusal of the CJEU to address national preliminary rulings on financial assistance measures re-enforces this message: that the EU bears no legal responsibility for the FR impacts of financial assistance. The danger is that a real gap in terms of effective judicial protection, and political representation, is emerging.143 How could this gap be closed? Effectively, it can be closed only if EU and national institutions recognise the power dynamics through which financial assistance operates, and which thereby constrains social rights. At a political level, this would require, as discussed above, compensating the lack of effective national parliamentary scrutiny with some degree of political oversight of financial assistance at the EU level. At a legal level, it requires a Court of Justice that takes its responsibilities to fulfil the Charter, including its social provisions, seriously. In keeping with the procedural approach outlined in Chapters 1 and 2, this need not mean overriding entirely the prerogatives of national or EU political institutions. In terms of what Chapter 2 described as the ‘vertical’ margin of appreciation in FR, judicial review at the EU level is particularly necessary where national review is effectively foreclosed. This is one interpretation of the repeated engagement between the Portuguese government and its Constitutional Court. While the Portuguese Constitutional Court has been observed as highly activist144 in repeatedly overturning aspects of the government’s budget on equality grounds, the government has had little choice but to respond to judicial decisions by either repassing similar budgetary measures or shifting cuts from targeting one group within society to another.145 In this scenario, while constitutional review is in theory an 142 143 144

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Response of the European Commission, at 5. See Dawson, n. 127 above. See e.g. G. de Almeida Ribeiro, ‘Judicial Activism against Austerity in Portugal’, ICONnect Blog (3 December 2013) 4. Available at: www.iconnectblog.com/2013/12/jud icial-activism-against-austerity-in-portugal/; L.D. Barroso, ‘Political Choices and Constitutional Determinations in Times of Constraint: The Case of Portugal’ (2014) Tijdschrift voor Constitutioneel Recht 337. See, contra, C. Kilpatrick, ‘Constitutions, Social Rights and Sovereign Debt States in Europe: A Challenging New Area of Constitutional Inquiry’ (2015) EUI Working Papers (Law) 34. In May 2014, for example, the Constitutional Court ruled unconstitutional a number of measures for public wage cuts, pension reductions and social security taxes. The ruling resulted in a new budgetary package maintaining many of the same public sector wage

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instrument to guarantee minimal social rights protection, the ability of the government to respond to its Court is effectively constrained by transnational action. Transnational review may be necessary to the extent that authority and constraint is emerging from the transnational level. In terms of the ‘horizontal’ margin of appreciation to EU institutions, a procedural approach would allow the EU Courts to vary their degree of review in such cases depending on some of the variables discussed in Chapter 2, i.e. the extent of the margin of discretion afforded to national authorities or the performance of the EU institutions in themselves integrating FR concerns in their decision-making.146 This approach is re-enforced by the passage of Regulation 472/2013, which introduces an (admittedly thin) layer of duties on the EU institutions in negotiating adjustment programmes, including the obligation in Article 8 to consult social partners when drafting such a programme.147 A number of factors could be relevant here in determining the strictness of EU-level review from the extent to which a broad variety of stakeholders were involved in the design of assistance measures to the rigorousness through which (see Section 5.4.1) negative impacts on fundamental social rights were seriously assessed. Under such an approach, real substantive review on social rights grounds would constitute a secondary step, to be conducted only in those cases where the margin afforded to the EU institutions is restricted. The EU Courts could draw on international precedents in considering how secondary, more ‘substantive’ forms of review could be developed. In an open letter on restrictions of social rights in times of financial emergency, the UN’s Committee on Economic, Social and Cultural Rights (UNCESCR) has proposed a four-stage test to determine whether austerity measures meet the standards of the UN Covenant.148 This test demands that restrictive measures are temporary; that they are necessary and proportionate; that they avoid discrimination (with measures

146

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reductions, some of which were again deemed unconstitutional in August 2014. On the constitutional ‘ping-pong’, see the European Observatory of Working Life. Available at: www.eurofound.europa.eu/observatories/eurwork/articles/labour-market-industrial-rel ations/portugal-rejection-of-austerity-measures-in-public-sector. A similar suggestion is advanced in C. Barnard, ‘The Charter, the Court – and the Crisis’ (2013) 18 Cambridge Legal Studies Research Paper Series 14. This is once again a finding of the EP’s Troika questionnaire: national governments report low levels of social partner involvement in financial assistance negotiations. Letter to all state parties on the International Covenant on Social, Economic and Cultural Rights of 16 May 2012. Available at: www2.ohchr.org/english/bodies/cescr/docs/Letter CESCRtoSP16.05.12.pdf.

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enacted to mitigate the effects on the most disadvantaged) and that they meet the standards of a ‘social protection floor’ as defined by the ILO standards. Given the CJEU’s historic attachment to international Treaties as being a source of inspiration for the development of EU FR, these are a useful starting point. Such review should not be seen as isolated from political measures to advance fundamental social rights. The advantage of strong procedural review, for example – as Anastasia Poulou has pointed out – is that it may ‘induce the actors preparing and enforcing adjustment programmes to adopt more inclusive and responsive procedures, actively engaging civil society actors and social partners’.149 A government or EU institution keen to avoid the kind of rigorous substantive review suggested by the UNCESCR may carry an incentive to engage in greater ex ante consultation as a means of warding off extensive judicial challenge. The function of the EU Courts in this scenario is to divide FR responsibilities; a type of review that does not enforce social rights per se but seeks to promote a governance structure in which other political actors are forced to integrate social rights concerns and institutions within their decision-making. Courts must protect social rights from falling between the gaps of the new and uncertain structures of accountability the evolution of EU economic governance has created.150

5.4.4 Empowering the Vulnerable Under John Hart Ely’s defence of judicial review on grounds of FR, judicial review is seen as particularly important to defend groups sidelined by conventional political processes.151 Ely had in mind ethnic minorities, but one could imagine other groups within society – from the disabled to religious minorities to the elderly – as constituting minorities with fewer resources and numbers to effectively politically mobilise. The evidence from ‘debtor’ states bears out elements of this thesis. On the one hand, a distinct aspect of the crisis years has been the development of political movements contesting the basic coordinates of EMU. These movements have used social rights to activate and channel a new 149

150

151

A. Poulou, ‘Austerity and European Social Rights: How Can Courts Protect Europe’s Lost Generation’ (2014) 15 German Law Journal 6. See Troika Resolution of the European Parliament, n. 75 above, at 48; Dawson, n. 127 above. See Chapter 6 ‘Facilitating the Representation of Minorities’ in J.H. Ely (eds.) Democracy and Distrust (Cambridge, MA: Harvard University Press, 1980), 135–180.

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generation of political activists.152 In the Greek case, the Syriza government won and consolidated power only to have many of its political goals frustrated by creditor demands. On the other hand, as discussed above, a common feature of crisis measures has been their disproportionate impact on vulnerable groups within society. When the axe of austerity falls, a clear danger emerges that those groups most able to mobilise political opposition will succeed in resisting cuts affecting their interests; those least able to mobilise will lose out. There is some evidence to support this at a legal level. If one examines, for example, the complaints addressed by the ECSR, these complaints were all brought by trade unions and pensioner associations. The ECSR complaints thus focused particularly on austerity measures affecting labour rights and the incomes of pensioners. While these two groups carry legitimate concerns, they are arguably not the groups most disadvantaged by recent erosions of social rights. A similar development can be observed at the national level – as Anastasia Poulou has pointed out, domestic litigation in both Portugal and Greece was often raised by groups ‘with vested interests in the existing system of power’.153 Domestic litigation did not address the claims of youth groups, of the disabled, or of others who may have most to lose from attacks on social rights yet little political representation. In this sense, the present legal order may reflect rather than challenge structural inequalities in the enjoyment of social rights. While addressing these inequalities is no simple task, the empirical picture above also carries some final lessons to improve the level of equality in access to social rights. The very fact that ECSR case law exists at all is largely because of peculiar features of the ESC system. All of the Greek complaints were raised under the ‘collective complaints procedure’ established by the ESC’s additional 1995 protocol. This procedure permits European trade unions, employers organisations and registered national NGOs to file complaints for violations of the ESC to the ECSR. The procedure stands in marked contrast to the denial of standing of Greek complainants before the EU’s general Court; an unsurprising development given the historical hostility of EU law to group-based litigation.154 152

153 154

D. Della Porta, ‘Still a Chance for Another Europe?’, Open Democracy (20 March 2015). https://opendemocracy.net/donatella-della-porta/still-chance-for-anothereurope; M. Pianta, ‘Democracy Lost: The Financial Crisis in Europe and the Role of Civil Society’ (2013) 9 Journal of Civil Society 2. Poulou, n. 149 above, at 1174. See e.g. Case T-585/93 Greenpeace and Others v Commission (1995) ECR II-2205.

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If – as suggested above – there may be severe inequalities in the ability of groups to seek review for social rights infringements, promoting more open standing rules is a further mechanism to ensure that social rights claims reach the EU Courts in the first place. While Commission efforts to promote ‘collective redress’ – where a group of applicants affected by a common EU policy could file a common complaint – have so far been confined to soft law measures or to the economic field,155 others have suggested their extension to fields such as equality and anti-discrimination.156 The spreading of the costs of fiscal adjustment among a wide group of affected actors, many of whom may have limited resources and acknowledge to litigate, may demand EU standing rules that promote rather than restrict the ability of civil society organisations to litigate on behalf of marginalised groups. Finally, while Ely’s focus on marginalised groups largely considered judicial review as a means of promoting their inclusion, greater equality in the governance of EU social rights may also require – as in Chapter 4 – attempts by the EU to re-enforce national institutions for the protection of marginalised groups. This is yet another legacy of the crisis years: austerity measures have not just affected vulnerable groups but also bodies acting on their behalf. An early victim, for example, of Ireland’s assistance programme was human rights bodies, with Ireland’s Equality Body receiving a 43 per cent cut in 2008 and its Human Rights Commission a 32 per cent cut in 2009 (with further cuts following to 2013).157 In other states, human rights bodies have played an important role in drawing public attention to social rights violations. The Council of Europe’s Commissioner for Human Rights, for example, has compiled a list of best practices by national human rights institutions and Ombudsmen in representing individuals affected by social rights during the crisis, and measuring the impact of austerity measures on minorities and vulnerable groups.158 Providing EU cohesion and social funding for 155

156

157

158

See Commission Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States, OJ L 201/60; Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the EU, OJ L 349/1. See Special Issue, ‘One for All and All for One: The Collective Enforcement of EU Law’ (2014) 41 Legal Issues of Economic Integration 3. Report on Ireland of the European Commission Against Racism and Intolerance (5 December 2012), 44. Available at: http://eracampaign.org/uploads/ECRI%20Report %20on%20Ireland%20Feb%202013.pdf. ‘Safeguarding Human Rights in Times of Economic Crisis’, Issue Paper of the Commissioner for Human Rights (Council of Europe, 2013), 51–52.

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such bodies, encouraging them to consider socioeconomic deprivation within their mandate and supporting human rights networks at the EU level, such as the European Networks of National Human Rights Institutions and of Equality Bodies, could provide an important political component to judicial action aimed at creating a more level playing field for the enforcement of EU social rights.

5.5 Conclusion The rather bleak picture painted by this chapter seems to demand revisiting some of the ‘human rights scepticism’ discussed in Chapter 1 of this book. The experiences of austerity seem to speak to the longstanding ‘subordination’ objection to EU FR159 – that they matter only so far as they further rather than conflict with ‘core’ EU policies, particularly those concerned with market integration. There is nothing in this study that would challenge this view – it provides no evidence for the ability of the Charter, either to restrain the EU institutions (to establish what the 2010 Charter strategy called a ‘fundamental rights culture’) or to act as a protective shield over national systems in the realm of social rights. There is, however, another story that emerges from this picture. As much as the EU’s FR architecture failed Europe’s southern periphery in the crisis years, the national FR architecture fared little better, as did complementary frameworks like the ECHR. As with the rule of law study developed in Chapter 4, the crisis not only eroded the social state but eroded intermediary institutions – such as FR monitoring bodies, or more significantly, the national collective bargaining system – carrying the capacity to challenge the erosion of social rights. In this sense, the EU stepped out of the FR governance game at precisely the moment where it was most needed. At the very least, the social rights story demonstrates – if ever there was doubt – the coercive power of the EU, and its ability to severely restrict the FR not just of a small number of mobile citizens but the populations of entire states. The guiding question left open (discussed in Section 5.4) is how to tame this coercive power. While legal remedies may provide one answer, their effective realisation may depend on a more basic task – avoiding political and legal constructions that allow EU bodies both to 159

For an early account, see M.P. Maduro, ‘Striking the Elusive Balance between Economic Freedoms and Social Rights in the EU’ in Alston (ed.), n. 1 above.

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evade any responsibility for their actions and to eliminate the forums within which restrictions on social rights could be deliberated and contested. If FR – as Habermas argued – are about ensuring the fundamental political equality of citizens – the Euro crisis has exposed a deep hole in the EU’s constitutional, as well as its FR, framework. In this book’s epilogue, we will explore this connection between politics and human rights with reference to the EU’s most recent human rights crisis.

u Epilogue Accession, Asylum and the Politics of Human Rights

Like any book, issues of focus in public and scholarly discussion are likely to change, and have changed, as this book has been written. Towards the end of the book’s completion, two FR issues loom on the horizon: the attempts of the EU to deal with a rising number of refugees seeking political asylum and the difficulties faced by the EU in its (Treaty mandated) obligation to accede to the ECHR. As a way of reflecting on some of the conclusions of this book, it may be useful to also reflect on these two examples. Just as this book has considered the governance of FR through legal and non-legal mechanisms, so these examples demonstrate how legal and political institutions are intertwined in the governance of FR. In the case of ECHR accession, the EU’s political negotiations on accession were dealt a significant blow by a negative opinion of the CJEU on the Treaty compatibility of the EU’s draft accession agreement in 2015.1 What is notable in this judgment is the minimal role FR considerations played in a judgment that was about Europe’s foremost human rights Treaty. The concern of these judges, as others have lamented,2 seemed rather political: to guard against the autonomy of EU law, and the primacy of their own rulings, being superseded by Strasbourg’s legal machinery. Far from being an example of the ‘constitutional dialogue’ discussed in Chapter 2, this judicial action seems to foreclose any real possibility of ECHR accession for the EU in the near future.3 In the case of the EU’s response to its refugee crisis, the commitment of the Union and its Member States to international asylum Treaties has 1 2

3

Opinion 2/13, Judgment of 18 September 2014. S. Douglas-Scott, ‘Autonomy and Fundamental Rights: The ECJ’s Opinion 2/13 on Accession of the EU to the ECHR’ (forthcoming, 2016) Europarattslig Tidskrift; S. Peers, ‘The EU’s Accession to the ECHR: The Dream Becomes a Nightmare’ (2015) 16 German Law Journal 213. T. Lock, ‘The Future of EU Accession to the ECHR after Opinion 2/13: Is It Still Possible and Is It Still Desirable?’ (2015) Edinburgh School of Law Research Papers 18.

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been frustrated by real problems of collective action. The willingness of the Member States to make good on their FR commitments to refugees is highly variegated; at the same time, their failure to agree common action is likely to have significant spill-over effects on common policies, not least the Schengen area. In this domain, judicial action seemingly counts for little: while the CJEU has interpreted EU legislation on asylum liberally,4 this has done little to increase the numbers of refugees Member States are willing to accept. Whereas, in the ECHR case, we see a judicial usurpation of a political process aimed at ensuring the EU’s external review on the FR grounds, here we see a political denial (or at the very least a highly narrow reading) of existing legal guarantees. These two difficult cases point to two common messages as regards EU FR protection. The first message relates to the political nature of FR in the EU context. FR are more and more objects of EU politics. While the Charter is framed as a device of restraint, imposing ‘agreed upon’ baseline standards upon the EU political process, these standards are highly contested and are constantly being re-negotiated. The effective implementation of EU FR is inevitably a political game, in which varied sets of interests carry particular FR agendas. To understand how FR are protected or eroded in the EU, we have to understand the institutional politics of FR (a politics that we see in the ECHR accession opinion and that was explored in Chapter 3 of this book). Our best hope for the future may be that the diversity of the EU’s institutional structure, and the role of the courts in maintaining political pluralism in EU politics, will produce a game in which FR considerations are given a fair hearing. In many of the examples discussed in this book – e.g. the process of agreeing the PNR Directive or the EU’s data protection package – such a fair hearing took place. While many actors may attempt to reduce the level of FR protection, the EU carries an FR framework in which neglecting FR concerns altogether is increasingly difficult, or at least carries a high burden of justification. What is important is to reflect on those cases where the game did not work. In the examples of social rights and rule of law protection, rights were eroded largely because the process of political pluralism central to the procedural approach was abandoned. The issue was not in these cases largely the adequacy of the institutional framework for the governance of FR but the bypassing of that framework altogether. In the 4

See e.g. on LGBT asylum seekers, Case C-148/13 to C150/13, A, B & C v Staatssecretaris van Veiligheid en Justitie, Judgment of 2 December 2014.

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rule of law example, this may occur where Member States intimidate their national Courts, such that neither national judicial review nor appeals to transnational Courts are possible. In the social rights example, this is largely the result of EU power being channelled through intergovernmental action, where the avenues of legal and political accountability developed under the Treaties are deemed inapplicable. FR are threatened not only by programmes that threaten substantive rights per se, but by measures that remove the possibility of their legal and political contestation. This relates to a second common message. When scholars discuss the negative framing of EU FR, they often lament the reduction of FR to permitted exceptions to market freedoms.5 There is a larger deficit in the governance of EU FR, however: the tendency to see the EU’s primary obligations in the larger FR field as negative, i.e. as a matter of shielding EU action from association with poor human rights practices. This demonstrates a dearth of ambition at the heart of EU FR policy. The EU’s unique institutional structure – as an organization able to make binding law elaborating FR standards – provides it with far greater potential – the potential to act positively to ‘promote and fulfil’ the rights proclaimed in the Charter. The negative framing of EU FR carries the potential to stand in the way of this task. The Commission’s obsession with impact assessment as the centrepiece of forging a ‘fundamental rights culture’, for example, may illustrate the interdependencies between FR and other EU policies, but does little to encourage the Commission to act as a political entrepreneur, or risk-taker, in the field of fundamental rights – a limitation that the provisions of Article 51 of the Charter exacerbate. Building a true rights culture would require further steps from the relatively mundane – a more ambitious enforcement strategy for the Charter, or a ‘sliding scale’ approach to Article 516 – to a more ambitious legislative programme for fundamental rights.7 Returning to the refugee and ECHR examples, ECHR accession fits well within the negative template. Judging by the institutional comparisons 5

6 7

See e.g. E. Christodoulidis, ‘The European Court of Justice and “Total Market” Thinking’ (2013) 14 German Law Journal 10. See Chapter 2, Section 5(i) above. See e.g. ETUC’s ‘Action Programme 2015–2019’, available at: www.etuc.org/sites/www.etuc .org/files/other/files/20151007_action_programme_en-consolidated_0.pdf. Or (from a more academic perspective), S. Garben, ‘A New Social Agenda for Europe’ (forthcoming, on file with author).

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conducted in this book, there is at least one actor that would benefit from the additional external checks that ECHR accession for the EU would imply: the CJEU. It is the only real EU actor whose activities are not checked by other bodies within the EU institutional framework.8 It is also, as Chapter 2 has illustrated, an actor whose performance in the FR field has been reticent, and who has been systematically lethargic in conceptualising its role as one actor among others in the task of governing EU fundamental rights. The question is whether the EU’s priority in terms of FR is really to add another layer of negative checks on EU action, but instead to increase the EU’s positive capacity to act. The Union faces plenty of FR challenges. Roma integration, social deprivation and the refugee crisis are three prominent examples where the EU has often been on the back foot: reacting to events rather than shaping an agenda of political reform before crises arise. While all of these problems are increasingly transnational in scope, the Treaty inhibits, or makes politically difficult, the ability of the EU to act effectively in these domains.9 Relaxing Treaty rules, both in terms of competences and in terms of voting rules, should in this sense be a higher priority for advocates of a robust EU FR policy. At the very least, this would allow the contestation of FR being observed through national politics – notably in the refugee example – to find a home in EU politics too. Here, the European Courts – both ECtHR and CJEU – would play the procedural role outlined in Chapters 1 and 2 of this book without conducting the kind of heavy lifting in the fundamental rights field that so many legal scholars expect of them. The picture of the present day may seem bleak. The EU – and its Member States – face a host of seemingly unending FR challenges. The EU nonetheless carries an increasingly advanced FR machinery to address these challenges: one where FR are difficult to ignore and another with the capacity to contest, deliberate and enforce the boundaries between human rights and other public policies. While the temptation of Europe’s Member States may be to channel refugee rights through purely national action, or to act outside the EU 8

9

See M. Hoereth, ‘The Least Dangerous Branch of European Governance? The European Court of Justice under the Checks and Balances Doctrine’ in Dawson, Muir and de Witte (eds.), n. 108 Chapter 1. See e.g. the delimited grounds and legal bases for legislative action on asylum and temporary protection listed in Art. 78(2) TFEU; or the delimitation on EU competence in the field of social exclusion to supporting measures (Art. 153 TFEU).

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framework, the chapters of this book illustrate the dangers of such a strategy. In the refugee case, as with other pressing FR issues, this machinery should be given the chance to prove its worth. It is time to get on with the job of realising the human rights policy that Alston and Weiler first sketched out.

INDEX

access to documents, 32–33 accession, 226–230 Accession Opinion, of ECHR, 18–19 age discrimination, 78–79 Alston, Philip, 1–2 AM & S case, 59–60 Article 7 procedure Austria and, 149 authority limitation and, 12–13 EAW and, 145 EP and, 100, 102–104 Italy and, 149–151 Article 29 Working Party (WP) EP and, 123–124 establishment of, 122 European Commission and, 124 Google Spain case and, 125 implementation of CJEU judgments and, 125 as implementing institution, 121–126 independence of, 121 Kirkhope report and, 123 mandate of, 122 need for, 126 opinion development by, 124 power of, 122 public/private sectors interface and, 124–125 rationale for mandate of, 122–123 scrutiny of, 126 Article 51, of Charter, 53–58, 77–79 Article 52(4), of Charter, 67–70 Article 53, of Charter, 67–70 asylum, 226–230 Austria, 149

autonomy, 152–156 Avramopoulos, Dimitris, 117 Basescu, Traian, 161 Bentham, Jeremy, 22–23 Better Regulation agenda impact assessment and, 92 RE-FIT and, 41–42 Regulatory Scrutiny Board and, 92–93 Better Regulation Watchdog, 42–43 Bickel, Alexander, 21 binary distinction, Charter and, 77–79 Blauberger, Michael, 37 body scanners, 104–105 Bogdandy, Armin von, 173–175 Brüstle case, 25–26 margin of appreciation and, 61–62 process-oriented approach and, 80–82 Búrca, Grainne de, 5 capacity-based dispersal, 3–4 fundamental rights and, 6–7 Charter of Fundamental Rights, EU Article 51, 53–58, 77–79 Article 52(4), 67–70 Article 53, 67–70 awareness raising and, 97–100 binary distinction and, 77–79 decision-making and European Commission and, 95 diversity variable and, 58–62 European Commission as guardian of the Treaties and, 95–97 Fransson case and, 55–56 increase in references to, 96

231

232

in de x

Charter of Fundamental Rights (cont.) infringement action and, 95–97 LIBE committee role and, 102–104 monitoring of, 96–97 MTU case and, 118–119 PILOT procedure and, 97 post-legislative action and, 97–100 principles and, 185–186 process-oriented approach and, 80–82 scope/field of application of, 53–58, 130–131 sliding scale approach and, 77–79 social rights and, 185–186 CJEU. See Court of Justice of European Union cloud services, 99 collective bargaining Greece and, 192–194, 207 Ireland and, 198–199 Portugal and, 197–198 communitarian critique Bentham and, 22–23 individualising EU citizenship, 22–25 labour law and, 23–24 Marxism and, 22 Somek and, 23–24 Weiler and, 23 Constitution, US, procedural approach and, 27–29 Cooperation and Verification mechanism (CVM), 163–165 Copenhagen Commission compliance and, 172 obstacles to, 171–172 rule of law and, 170–173 counter-majoritarian difficulty procedural approach and, 27–29 scepticism and, 21–22 Court of Justice of European Union (CJEU) age discrimination and, 78–79 AM & S case, 59–60 Brüstle case, 61–62 Data Retention Directive and, 63–64 ECHR Accession Opinion and, 18–19

EO working with, 116–119 European Parliament v Council case and, 75–76 Family Reunification Directive and, 72–73, 98–99 Frontex and, 116–118 Google Spain and, 98–99 Kadi case, 71–72 Karner case, 63 Laval case and, 36–39 margin of appreciation and horizontal dimension, 71–76, 220 vertical dimension, 53–70 MTU case and, 118–119 nature of rights variable and, 64 Omega case, 60 OMT case, 203–204 overview of issues related to, 9–10 preliminary reference procedure and, 175 Pringle case, 203–204 procedural variable and, 65–66 process-oriented approach and, 80–82 Sayn Wittgenstein case, 60–61 Schrems case, 63–64 Siragusa case, 57–58 sliding scale approach and, 77–79 Test-Achats Directive and, 73–74 Viking case and, 36–37 Volker und Markus Scheke case, 74–75 as watchdog institution, 114 working party implementation of judgments of, 125 ZZ case, 62–63 CVM. See Cooperation and Verification mechanism data protection. See also Article 29 Working Party; General Data Protection Regulation body scanners and, 104–105 cloud services and, 99 Digital Rights Ireland case and, 64–65 Fransson case and, 56–58 PNR Directive and, 133–135 Data Protection Directive

i nde x European Commission’s first report on, 124 working party and, 122 Data Retention Directive, 63–64 process-oriented approach and, 80–82 Defrenne judgments, 40–41 democracy future of intervention on, 167–175 internal relation between rule of law and, 29–31 quantification of, 167–170 Democracy and Distrust (Ely), 27–29 DG. See Directorate-General Digital Rights Ireland case margin of appreciation and, 64–65 procedural variable and, 65–66 process-oriented approach and, 80–82 Directorate-General (DG), 92 dispersal capacity-based, 3–4 normative, 3 diversity variable, 51 AM & S case and, 59–60 Brüstle case and, 61–62 Charter rights limitations and, 58–62 Melloni case and, 59 Omega case and, 60 Sayn Wittgenstein case and, 60–61 doctrine of subsidiarity, 49 EAW. See European Arrest Warrant ECHR. See European Court of Human Rights ECSR. See European Committee on Social Rights electoral competition, 156–159 Ely, J. H., 221 procedural approach and, 27–29 Eman and Sevinger case, 33–35 empirical critique, 25–26 margin of appreciation and, 26 Employment Equality Directive, 78–79 EO. See European Ombudsman EP. See European Parliament equality

233

Article 29 Working Party and, 121–126 discrimination and, 40–41 Employment Equality Directive, 78–79 political, 29 Roma and, 167–168 vulnerable empowerment and, 221–222 essence of rights doctrine Digital Rights Ireland case and, 64–65 process-oriented approach and, 80–82 EU. See European Union Euro crisis financial assistance and, 189–190 Greece and, 190–195 Ireland and, 198–200 Portugal and, 195–198 social rights in age of austerity and, 189–203 European Arrest Warrant (EAW), 145 European Banking Authority, 120 European Commission, 11 awareness raising and, 97–100 Better Regulation Watchdog and, 42–43 body scanners and, 104–105 cloud services and, 99 conclusions about, 99–100 decision-making and, 95 EP lambasting, 101 European Council and, 108, 109 European Parliament v Council case and, 75–76 Family Reunification Directive and, 98–99 Google Spain and, 98–99 as guardian of Treaties, 95–97 Hungary and, 152–156 IIA and, 89–90 impact assessment introduction by, 88–89 infringement power of, 120–121 infringement proceedings and, 103–104

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European Commission (cont.) inter-institutional cooperation and, 91 international agreements and, 105 Laval case and, 36–39 legal service of, 94 MTU case and, 118–119 negative element of functioning of, 87–89 OMC and, 167–168 PILOT procedure and, 97 positive element of functioning of, 88–89 post-legislative action and, 97–100 poverty and, 98 RE-FIT and, 41–42 Regulatory Scrutiny Board and, 92–93 roles of, 87–100 Rule of Law Recommendation of, 182–183 SOLID: Promoting Strategic Litigation and, 41 Sweden v Commission case, 32–33 SWIFT agreement and, 105 working party and, 124 European Committee on Social Rights (ECSR) financial assistance and, 206–211 Greece and, 208–210 Ireland and, 210 Portugal and, 210 social rights and, 206–211 European Convention on Human Rights (ECHR) diversity variable and, 51 margin of appreciation and, 26, 49–53 nature of rights variable and, 51–52, 62–65 procedural variable and, 52 European Council European Commission and, 108, 109 Frontex and, 111–114 fundamental rights proof and, 107–109 margin of appreciation and, 49–50

Monti Regulation proposal and, 107–108 National Parliaments and, 107–108 peer review and, 110–111 role, 107–114 scope of rights and, 110–111 sources of expertise and, 108 European Court of Human Rights (ECHR) Accession Opinion of, 18–19 diversity variable and, 51 Family Reunification Directive and, 98–99 Google Spain and, 98–99 margin of appreciation and, 26, 49–53 nature of rights variable and, 51–52, 62–65 procedural variable and, 52 ZZ case and, 62–63 European Ombudsman (EO) advantages of, 116 civil society representation and, 120 CJEU working with, 116–119 division of labour and, 84–87 European Commission’s infringement power and, 120–121 financial assistance and, 120 Frontex and, 115, 116–118 mandate of, 115–116 MTU case and, 118–119 political process and, 119–121 role, 115 transparency and, 120 as watchdog institution, 114–116 European Parliament (EP) Article 7 procedure and, 100, 102–104 body scanners and, 104–105 centre right victory and, 100–101 European Commission lambasted by, 101 Family Reunification Directive and, 72–73 FRA and, 10–11 Frontex and, 111–114, 116–118

i nde x infringement proceedings and, 103–104 international agreements and, 105 legislative procedure, 104–107 LIBE committee role and, 102–104 Nice Treaty and, 100 Poland and, 183–184 politicising fundamental rights and, 100–102 rights reporting and, 102–104 roles of, 100–107 SWIFT agreement and, 105 working party and, 123–124 European Parliament v Council case, 75–76 European Semester, 89–90 Justice Scoreboard and, 167–170 OMC and, 167 European Union (EU) ambiguous nature of, 19–20 fundamental rights scope in, 53–58 governance in, 2–4 individualising citizenship in, 22–25 Family Reunification Directive, 72–73, 98–99 FCC. See German Federal Constitutional Court Fidesz party. See Hungary financial assistance awareness raising and, 98 common elements of, 201–203 ECSR and, 206–211 EO and, 120 Greece and, 190–195 Ireland and, 198–200 Portugal and, 195–198 responsibility allocation regarding, 203–206 social rights and, 13–14, 189–203, 212–222 FRA. See Fundamental Rights Agency Framework for Roma Integration Strategies, EU, 43 Fransson case binary distinction and, 77–79 FCC and, 56–58 margin of appreciation and, 55–56

235

freedom of expression, 159–161 FREMP working party, 107–109 Frontex, 117 barriers faced by, 113–114 effectiveness of, 112–113 EO and, 115, 116–118 EP and, 111–114, 116–118 European Council and, 111–114 impact assessment and, 112 individual complaint mechanism and, 117 joint return operations and, 116–118 limited view of responsibility within, 113–114 resources and, 113 strategy adopted by, 112 fundamental rights. See also Charter of Fundamental Rights, EU ambiguous nature of EU and, 19–20 book’s approach to, 15–17 capacity-based dispersal and, 6–7 collective enforcement of, 39–44 conceptualising and justifying, 18–20 culture of, and impact assessment, 89–94 in decision-making, 95 dividing labour in, 84–87 fundamental boundaries and, 21 governance and, 4–7 normative dispersal and, 6 in ordinary legislative procedure, 104–107 policy necessity, 1–2 political disagreement and, 36–44 political discourse and, 20 political pluralism and, 20 in political process, 119–121 politicising, 100–102 politics of, 226–230 procedural approach to transnational, 26–36 proof, 107–109 rationale for EU, 7–9 scope of EU, 53–58 scepticism regarding, 21–26 top-down and bottom-up approaches to, 14

236 Fundamental Rights Agency (FRA) awareness-raising functions of, 130–131 decision-making structure of, 127 division of labour and, 84–87 EP and, 10–11 establishment of, 126–127 evaluation of, 129–130 General Data Protection Regulation and, 134–135, 136–141 as implementing institution, 126–133 infringement action and, 129–130 Lisbon Treaty and, 128 Multi-Annual Framework of, 127–128 national monitoring by, 129 opinions, 131–132 Passenger Name Records Directive and, 135–141 post-legislative guidance of, 129 under-utilisation of power of, 130 General Data Protection (GDP) Regulation aims of, 134–135 FRA and, 134–135, 136–141 German Federal Constitutional Court (FCC), 56–58 Givens, Terri, 40–41 Google, working party and, 124–125 Google Spain case European Commission and, 98–99 territorial reach and, 82–83 working party and, 125 governance defined, 2–4 differentiation and, 176 in EU, 2–4 fundamental rights and, 4–7 between law and politics, 177–178 multi-level action and, 176–177 new governance and quantification of democracy, 167–170 not government, 178–179 rule of law from perspective of, 175–179 social rights duties in, 212–222

in de x Greece bail-outs in, 190–191 collective bargaining and, 192–194, 207 ECSR and, 208–210 Eurobarometer report on, 191 financial assistance and, 190–195 minimum wage reductions in, 193 social impact assessment and, 212–214 social rights and, 190–195 wage competitiveness and, 192 welfare and, 195 Habermas, Jürgen, 29–31 Haider, Jörg, 149 Hungary autonomy and, 152–156 Copenhagen Commission and, 170–173 differentiation and, 176 electoral competition and, 156–159 freedom of expression and, 159–161 governing between law and politics, 177–178 infringement action and, 152–156, 176 knowledge and, 170 media and, 159–161 multi-level action and, 176–177 National Parliaments and, 154–155 Poland compared with, 182 Romania compared with, 164–166, 182 rule of law crisis in, 151–161 Tavares Report and, 157–159 IA. See impact assessment IIA. See inter-institutional agreement impact assessment (IA) Better Regulation agenda and, 92 DGs and, 92 European Commission introducing, 88–89 Frontex and, 112 fundamental rights culture establishment and, 89–94 IIA and, 89–90 inter-institutional cooperation and, 91

in dex justification of, 90–94 legal service of European Commission and, 94 negative impact of, 91–92 politicisation of process of, 92 Regulatory Scrutiny Board and, 92–93 Schecke case and, 90 implementing institutions conclusions about, 141–143 distinction between watchdog institutions and, 121 FRA, 126–133 working party, 121–126 individual complaint mechanism, 117 industrial relations act, 199 infringement action Charter and, 95–97 European Commission, 103–104, 120–121 FRA and, 129–130 Hungary and, 152–156, 176 PILOT procedure and, 97, 120–121 Scheppele and, 174 sources of, 96–97 inter-institutional agreement (IIA), 89–90 Iohannis, Klaus, 164 Ireland. See also Digital Rights Ireland case collective bargaining and, 198–199 ECSR and, 210 financial assistance and, 198–200 industrial relations act and, 199 social rights and, 198–200 social security reform in, 199–200 wage reductions in, 198–199, 200 Italy Article 7 procedure and, 149–151 preliminary reference procedure and, 150–151 joint return operations (JROs), 112, 116–118 judicial review, procedural approach and, 27–29 Justice Scoreboard, 167–170

237

Kadi case, 71–72 Karner case, 63 Kilpatrick, Claire, 206 Kirkhope report, 123 Kroes, Neelie, 159–160 Laval case, 25–26 collective enforcement of rights and, 39–40 political disagreement and, 36–39 Legal, Hubert, 169 levels of protection margin of appreciation and, 67–70 Melloni case and, 67–69 Schrems case and, 69–70 ZZ case and, 67 LIBE committee politicisation and, 102–103 role, 102–104 working party and, 123–124 Lisbon Treaty, 128 MAF. See Multi-Annual Framework margin of appreciation (MOA), 25–26 Article 51 of Charter and, 53–58 balancing different varieties of, 77–82 Brüstle case and, 61–62 CJEU and horizontal dimension, 71–76 vertical dimension, 53–70 Convention system and, 49–50 Digital Rights Ireland case and, 64–65 diversity variable and, 51 under ECHR, 26, 49–53 empirical critique and, 26 Family Reunification Directive and, 72–73 Fransson case and, 55–56 Kadi case and, 71–72 levels of protection and, 67–70 Melloni case and, 67–69 nature of rights variable and, 51–52, 62–65, 71–73 normative dispersal and, 49 procedural variable and, 52, 65–66, 73–76 purpose of, 50–51

238

in de x

margin of appreciation (MOA) (cont.) Schrems case and, 69–70 Siragusa case and, 57–58 sliding scale approach and, 77–79 Test-Achats case and, 73–74 Volker und Markus Scheke case and, 74–75 ZZ case and, 62–63 Marxism, communitarian critique and, 22 media, 159–161, 180 Melloni case binary distinction and, 77–79 diversity variable and, 59 levels of protection and, 67–69 process-oriented approach and, 80–82 MOA. See margin of appreciation Monti Regulation, 107–108 MTU case, 118–119 Muir, Elise, 78–79 Multi-Annual Framework (MAF), 127–128 multi-lateral surveillance, 167 National Constitutional Courts margin of appreciation and, 49–53 national framework and, 50–51 Portugal and, 219–220 Reverse Solange and, 175 social rights and, 206 National Parliaments, 37 European Council and, 107–108 Hungary and, 154–155 social rights responsibilities division and, 217–219 nature of rights variable, 51–52 ECHR and, 62–65 ECHR and CJEU compared regarding, 64 margin of appreciation horizontal dimension and, 71–73 margin of appreciation vertical dimension and, 62–65 Nice Treaty, 100 non-retrogression, 187

normative dispersal, 3 fundamental rights and, 6 margin of appreciation and, 49 OMC. See Open Method of Coordination Omega case, 60 OMT case, 203–204 Open Method of Coordination (OMC) European Commission and, 167–168 European Semester and, 167 multi-lateral surveillance and, 167 Roma and, 167–168 rule of law and, 167–170 Orban, Viktor, 101–102. See also Hungary ordinary legislative procedure, 86, 94, 104–107 Passenger Name Record (PNR Directive) data protection and, 133–135 FRA and, 135–141 peer review, rule of law and, 110–111 PILOT procedure infringement action and, 97 infringement power of European Commission and, 120–121 PNR Directive. See Passenger Name Record Poland Constitutional Tribunal Statute amendment and, 180–182 EP and, 183–184 Hungary and Romania compared with, 182 media law and, 180 rule of law crisis in, 179–184 Rule of Law Recommendation and, 182–183 Venice Commission and, 182–183 political disagreement fundamental rights and, 36–44 Laval case and, 36–39 normative value of, 36–39 Viking case and, 36–37

in de x political process EO probing in-transparency policies and, 120 fundamental rights in, 119–121 Ponta, Viktor, 101–102, 161–164 Portugal collective bargaining and, 197–198 constitutional court of, 219–220 ECSR and, 210 European Semester and, 197–198 financial assistance and, 195–198 health and pension coverage reduced in, 196 social rights and, 195–198 wage reductions in, 196–197 Poulou, Anastasia, 221, 222 preliminary reference procedure, 69–70, 146–147 CJEU and, 175 Family Reunification Directive and, 72–73 Italy and, 150–151 Pringle case, 203–204 procedural approach access to documents and, 32–33 assumptions about role of Courts and, 47 conclusions about, 44–46, 82–83 Ely and, 27–29 in European human rights law, 31–36 governing not government and, 178–179 Habermas and, 29–31 overview of, 26–27 process-oriented approach and, 80–82 to rule of law, 146–147 to trans-national rights protection, 26–36 voting rights and, 33–35 procedural variable CJEU and, 65–66 Digital Rights Ireland case and, 65–66 margin of appreciation, 52 horizontal dimension, 73–76 vertical dimension, 65–66 process-oriented approach, 80–82

239

proportionality diversity variable and, 58–62 Karner case and, 63 nature of rights variable and, 62–65 Sayn Wittgenstein case and, 60–61 Volker und Markus Scheke case and, 74–75 ZZ case and, 62–63 Race Directive, 40–41 RE-FIT. See Regulatory Fitness Communication Regulation 472/2013, 220 Regulatory Fitness Communication (RE-FIT), 41–42 Better Regulation Watchdog and, 42–43 regulatory scrutiny board (RSB), 92–93 Reverse Solange, 173–175 Roma, 43, 167–168 Romania constitutional framework of, 161 Copenhagen Commission and, 170–173 CVM and, 163–165 differentiation and, 176 emergency ordinances enacted in, 161–163 governing between law and politics, 177–178 Hungary compared with, 164–166, 182 knowledge and, 170 multi-level action and, 176–177 Poland compared with, 182 political competition in, 161 rule of law crisis in, 161–166 RSB. See regulatory scrutiny board rule of law autonomy and, 152–156 Copenhagen Commission and, 170–173 in crisis Austria, 149 conclusions, 179–184 early warnings, 149–151 Hungary, 151–161 Italy, 149–151

240

in de x

rule of law (cont.) Poland, 179–184 Romania, 161–166 electoral competition and, 156–159 freedom of expression and, 159–161 future of intervention on democracy and, 167–175 from governance perspective, 175–179 differentiation and, 176 governing between law and politics, 177–178 governing not government, 178–179 multi-level action and, 176–177 internal relation between democracy and, 29–31 judicialisation of, 173–175 Justice Scoreboard and, 168 knowledge and, 170 media and, 159–161 multi-lateral surveillance and, 167 new governance and quantification of democracy, 167–170 OMC and, 167–170 oversight of, justifying EU, 144–149 overview of issues related to, 12–13 peer review and, 110–111 procedural approach to, 146–147 Reverse Solange and, 173–175 sanctions and, 166 TEU and, 144–145 Rule of Law Recommendation, 182–183 Sayn Wittgenstein case, 60–61 scepticism communitarian critique and, 22–25 counter-majoritarian difficulty and, 21–22 empirical critique and, 25–26 fundamental rights, 21–26 Schecke case, 90 Schengen Borders Code, 75–76 Scheppele, Kim Lane, 174 Schrems case, 63–64 levels of protection and, 69–70 process-oriented approach and, 80–82

Schutter, Olivier de, 90 scope/field of application, 53–58, 130–131 Scoreboard. See Justice Scoreboard Siragusa case, 57–58 SLG. See Starting Line Group social rights. See also European Committee on Social Rights in age of austerity, 189–203 Better Regulation Watchdog and, 42–43 Charter and, 185–186 collective enforcement of rights and, 39–40 common elements related to, 201–203 competences for realising, 186 conclusions, 224–225 duties in governance of, 212–222 assessing social impacts, 212–214 division of responsibilities, 217–221 empowerment of vulnerable, 221–222 politicising Europe’s economic and monetary union, 214–217 EU institutions role related to, 203–211 financial assistance and, 13–14, 189–203, 212–222 Greece and, 190–195 Ireland and, 198–200 Member States discretion regarding, 204–206 National Constitutional Courts and, 206 National Parliaments and, 217–219 overview of issues related to, 13–14 pillars of, 186–188 Portugal and, 195–198 responsibility allocation and, 203–206 SOLID: Promoting Strategic Litigation and, 41 what are, 185–188 social security reform, in Ireland, 199–200

ind ex SOLID: Promoting Strategic Litigation, 41 Somek, Alexander, 23–24 Spain v United Kingdom case, 33–35 Starting Line Group (SLG), 40–41 Sweden and Turco v Council case, 32–33 Sweden v Commission case, 32–33 SWIFT agreement, 105 Tavares Report, 101–102, 157–159 Test-Achats Directive, 73–74 process-oriented approach and, 80–82 TEU. See Treaty on European Union Timmermans, Frans, 179–180 trans-national rights protection, 26–36 transparency, 120 Treaty on European Union (TEU), 144–145

241

UN Committee on Economic, Social and Cultural Rights (UNCESCR), 220–221 Venice Commission, 156–161, 162–163, 181–183 Viking case, 25–26 political disagreement and, 36–37 Vogel-Polsky, Elaine, 40–41 Volker und Markus Scheke case, 74–75 voting rights, 33–35 watchdog institutions. See also Better Regulation Watchdog CJEU, 114 EO, 114–116 implementing institutions and, 121 Weiler, Joseph, 1–2, 21, 23 WP. See Article 29 Working Party ZZ case levels of protection and, 67 MOA and, 62–63