FIDE 2014 Copenhagen

In the Era of Legal Pluralism - The Relationship between the EU, National and International Courts, and the Interplay of the Multiple Sources of Law

Panel discussion 31 May 2014(1)

Pauliine Koskelo

Introductory remarks

Same rights, separate sources, different courts – which outcomes?

Characteristic features for European legal integration are that it is founded on agreement by and between states, but the agreement on basic texts rests on broad and vague formulations, whereas the process for determining what the commitments actually mean is a separate one, and largely subject to adjudication by competent courts. At this latter level, integration is no longer about agreement but about loyalty and following. Sustaining these will ultimately depend on the outcomes, and on the quality of the analysis, discourse and reasoning that informs them.

In the field of fundamental rights, the situation is particular because in most Member States we have three sets of basic norms governing the field, one national and two European ones, which in broad terms are largely concurrent but subject to separate processes by which the actual substance of the rights are determined. This gives rise to complexities and tensions to be managed. In an interlinked domain, real interaction, institutionalized as well as informal, is crucial, both in order to tackle and overcome the hard issues and in order to share and make most of the available intellectual capital.

ECHR – national constitutions

These two sets of norms basically share the same scope of application. Their status in the national system may differ in terms of norm hierarchy. Apart from that, the relationship between these sets of norms would usually be characterized by attributing to the ECHR a quality of minimum norms. While this is plausible in theory, the reality is rather different. As a matter of practice, the profile of the Strasbourg court and its case-law is not quite consistent with such an approach. There is no doubt that the contracting states do remain free to provide a superior standard of rights. At the same time, many observers do not perceive the Strasbourg court as an institution content with establishing minimum standards. Rather, there is a dynamic ambition illustrated by many examples of the Court’s case-law, and the Court has allowed itself considerable freedom in giving substance to Convention rights. Especially the doctrine of positive obligations and its applications reflect a mindset that is expansive rather than minimalist. The dynamic evolution is also a source of controversies. It is well-known that even loyalty and following have lately come under strain here and there.

Moreover, the idea of a freedom to grant better rights than those required under the Convention is in itself rather inappropriate in situations that involve a conflict of opposing rights, where improving the position of one party means weakening the position of another. Undoubtedly, there are circum-stances where the national context requires a protection going beyond the Convention standard, but as a general proposition the notion of Convention rights as a minimum standard is not very helpful in conceptualizing or ordering the relationship between the ECHR and national fundamental rights.

ECHR – Charter

The Charter makes a formal link between Charter rights and the ECHR through the harmonizing clause in Article 52(3), according to which Charter rights shall have the same meaning and scope as corresponding Convention rights. While this does not prevent Union law providing more extensive protection (a point already covered), the clause is remarkable as a binding part of EU primary law.

With this, Convention rights are imported and lifted to primary law level, the claim of primacy is attached to them within the scope of the Charter, and the autonomy of Union law is forgone as ECHR interpretations become “incorporated" into Union law through a formally binding provision.

This may become a source of some difficulties.(2) The process through which Convention case-law develops is not only external to the Union but also quite different from the process through which Union case-law normally develops. First, while the preliminary rulings of the ECJ are interpretative rulings specifically addressing and clarifying questions of interpretation on identified points of law (or the validity of secondary law norms), the judgments of the Strasbourg court are of a different nature. They are findings of violation or non-violation in individual cases, where the interpretative elements are often not clearly distinct from considerations linked to the concrete factual situation as presented to the Court. Second, the judgments focus on the specific complaints made and ECHR articles invoked by the complainant, which narrows down the context of interpretation and the point of view. Third, the procedural setting in which the case-law is generated is narrow and even lopsided because in horizontal situations the opposing party, whose rights have also been at stake, is neither a party nor (usually) a participant in the Strasbourg proceedings. Such a procedural constellation is not always an optimal basis for determining complex issues with potentially wide-ranging implications. Fourth, concerns about quality and coherence are real, especially under a huge case overload. Fifth, answers cannot be obtained when they are needed, although this may in part change with Protocol 16.

Importing major legal elements from such processes into primary Union law may be problematic – similarly as at a national level, but the normative weight of Article 52(3) seems to underline the issue.

Charter – national constitutions

Unlike the ECHR and national constitutional rights, which basically have a shared scope of application, the Charter has a more limited scope. The ECJ has endorsed a wide interpretation (Åkerberg Fransson, Pfleger), but the scope of the Charter nevertheless cuts through the domestic legal order and divides it into areas where either both overlap or only the national rights apply – together with the ECHR.

In many contexts the issues that arise cannot, however, be resolved by sticking to a formal dividing line between the respective scopes of application. EU law and national law are so intertwined, and subject to common procedures, that a clean separation is often not feasible. Many factual situations will not accord with differentiation by reference to such criteria. Example: for tax fraud, it is irrelevant whether VAT is involved or not, and it would make no reasonable sense to apply the ne bis in idem –principle differently depending on which sort of tax is concerned in the proceedings. Whichever variant of ne bis in idem gives most extensive protection will have to govern. At the national level, there are many contexts and situations where a differentiated treatment cannot reasonably be envisaged depending on whether or not a concrete case falls within or outside the scope of EU law.

Thus, separating or limiting scopes of application alone is not an answer. Focus must also be put on efforts to tackle and settle disagreements about the substance, conflicts and balancing of rights. Here, too, we move from issues of following into questions about how to deal with differences of opinion regarding rights in various contexts – either by settling them or by tolerating them.

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(1) Moderator:

  • Ms Marise Cremona, Professor at the European University Institute

Panel members:

  • Mr Vassilios Skouris, Professor and President of the Court of Justice of the European Union
  • Ms Julia Laffranque, Judge of the European Court of Human Rights
  • Mr Andreas Voßkuhle, Professor and President of the German Federal Constitutional Court (Bundesverfassungsgericht)
  • Mr Jean-Marc Sauvé, President of the French Supreme Administrative Court (Conseil d’État)
  • Ms Pauliine Koskelo, President of the Finnish Supreme Court (Korkein oikeus)

Commentators:

  • Mr Mattias Kumm, Professor at the New York University School of Law and the WZB Social Science Research Center, Berlin
  • Mr Giuseppe Tesauro, Professor and Judge of the Italian Constitutional Court (Corte costituzionale della Repubblica Italiana)

(2) Some foretaste has been given by the Strasbourg case-law on child abduction, which has risked undermining the legal framework for a quick return of abducted children to the jurisdiction with competence to settle custody issues.

 
Julkaistu 1.9.2014