Human Rights in Contemporary European Law 9781474201414

This is volume 6 in the series Swedish Studies in European Law. Arising from the work of two well-attended seminars, thi

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Human Rights in Contemporary European Law
 9781474201414

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Preface This book is based on two seminars that were held in Sweden in 2011 and 2012. The first one, in Örebro in October 2011, dealt with the general topic ‘Human Rights in Today’s European Law’, while the second one in Stockholm in October 2012 focused on ‘The Accession of the EU to the European Convention on Human Rights’. Due to the requirements of the Swedish Network for European Law Studies, only Swedish speakers of these conferences have been invited to participate in this volume. Based on those two well-attended seminars, contributions are here presented from the following leading Swedish experts: Professor Ulf Bernitz; Professor Xavier Groussot (with LLM Eric Stavefeldt); Doctorate Candidate Magnus Gulliksson; Professor Pär Hallström; Associate Professor Märta Johansson; Professor Eleonor Kristoffersson; Former EU Judge Pernilla Lindh; Associate Professor Andreas Moberg; Professor Joakim Nergelius; LLD, Director Erik Wennerström; Associate Professor and Judge of Appeal Ola Zetterqvist and Professor Karin Åhman. So which topics do these distinguished scholars deal with, then? Hardly surprising from a Swedish point of view, two topics dominate the book, namely the ‘Double Jeopardy Clause’ or ne bis in idem in relation to Swedish Tax Law, with special emphasis on the aftermath in Swedish Law of the well-known Åkerberg Fransson judgment of the EU Court of Justice in February 2013 and the (eagerly anticipated but severely delayed) accession of the EU to the European Convention on Human Rights (ECHR). The many issues related to ne bis in idem, that relate both to tax law and criminal law, Swedish law and EU law as well as case law from Luxembourg, Stockholm and Strasbourg, are being dealt with from different angles by Ulf Bernitz, Magnus Gulliksson, Eleonor Kristoffersson and Ola Zetterqvist. The issue of the EU accession to the ECHR is here analyzed from different points of view by Xavier Groussot and Eric Stavefeldt, Pernilla Lindh and Erik Wennerström, who cover both legal and political aspects of these rather unexpectedly complicated problems. Apart from that, also issues on the general human rights strategy of the EU (Andreas Moberg) and human rights in relation to the increasing problem of trafficking (Märta Johansson) are analyzed. Karin Åhman describes the general development of judicial review in Swedish courts—an area that has been very much affected by Swedish EU membership. Pär Hallström reflects on the so-called margin of appreciation, which is well-known not least from the jurisprudence of the European Court of Human Rights, while Joakim Nergelius compares the Åkerberg Fransson judgment of the Court

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of Justice with the one in Melloni that was given on the same day, criticizing the latter sharply. The EU and European law issues are analyzed thoroughly. Nevertheless, the topics covered give rise to new questions suitable for further research. One such new question is what the consequences are of the fact that VAT procedural law is part of EU Law, as stated in Åkerberg Fransson. Does this for example mean that the right of oral hearing, which can be derived from Article 47 (II) of the EU Charter, is unconditional in all VAT cases? Another question that is touched upon, but not analyzed deeply, is what other areas of law that can be considered to be part of EU Law, so that the EU Charter applies. This is interesting regarding all provisions where the EU Charter and the ECHR are not identical, and hence do not cover the same rights. What about, for example, all the situations where a person carries out activities cross-border within the EU? Do such cross-border activities mean that the person in question is exercising his or her right of free movement and that the activities hence are subject to EU law—and protected by the rights of the EU Charter? This book may inspire and trigger new research questions within the field of European Law. It may also give valuable input to legal practitioners in order to find new ideas and legal grounds to refer to in legal proceedings before the authorities and courts. The book should be of value to any reader with an interest in such EU law matters as described here. It intends to show some tendencies in contemporary Swedish EU law research, while at the same time hopefully also be able to shed some light and new insights into vividly discussed EU law matters, which are of great importance for Europe as a whole. Örebro, May 2014 Eleonor Kristoffersson and Joakim Nergelius

Table of Cases European Court of Justice Aina¯rs Re¯dlihs v Valsts ien‚ e¯mumu dienests (Case C–263/11) EU:C:2012:497............................................................................................... 166 Amministrazione delle Finanze dello Stato v Simmenthal SpA (Case 106/77) [1978] ECR 629 ...................................................... 4, 170–1, 179 Amministrazione dell’Economia e delle Finanze and Agenzia delle entrate v Fallimento Olimpiclub Srl (Case C–2/08) [2009] ECR I–7501 .................................................................................. 179–80 Anklagemyndigheden v Hansen & Soen I/S (Case C–326/88) [1990] ECR I–2911 ........................................................................................ 158 Arcaro, Criminal Proceedings Against (Case C–168/95) [1996] ECR I–4705.................................................................................................... 173 Archer Daniels Midland Company and Archer Daniels Midland Ingredients Ltd v Commission of the European Communities (Case T–224/00) [2003] ECR II–2597 ............................................................ 174 Berlusconi and Others, Criminal Proceedings Against (Case C–387/02, C–391/02 and C–403/02) [2005] ECR I–3565 .............. 168–73 Boehringer Mannheim GmbH v Commission of the European Communities (Case 7/72) [1972] ECR 1281................................................... 174 Bonda, Criminal Proceedings Against (Case C–489/10) EU:C:2012:319................................................................... 154, 163–4, 202, 204 Booker Aquaculture and Hydro Seafood (Joined Cases C–20/00 and C–64/00) [2003] ECR I–7411 .................................................................... 15 Bourquain, Criminal Proceedings Against (Case C–297/07) [2008] ECR I–9425.................................................................................................... 142 Brügge, Criminal Proceedings Against (Case C–385/01) [2003] ECR I–1345 ................................................................................................... 142 Byankov v Glaven sekretar na Ministerstvo na vatreshnite raboti (Case C–249/11) EU:C:2012:608 ........................................................... 177, 180 Campina GmbH & Co v Hauptzollamt Frankfurt (Oder) (Case C–45/06) [2007] ECR I–2089 ............................................................... 172 Cartesio (Case 201/06) REG 2008 I–9641 ......................................................... 196 Caves Krier (Case C–379/11), 13 December 2012, not yet published ............... 70–1 CILFIT and Others (Case 283/81) [1982] ECR 3415 ................................. 177, 193 Comet BV v Produktschap voor Siergewassen (Case 45/76) [1976] ECR 2043....................................................................................... 158–9, 174–7 Commission v Greece (Greek Maize) (Case 68/88) [1989] ECR 2965 ............................ 158–9, 161–70, 172, 180, 188 Commission v Italy (Case C–132/06) ECR 2008 I–5457 .................................... 199 Costa v ENEL (Case C–6/64) [1964] ECR 585 .......................................... 4, 19, 64

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Cruciano Siragusa v Regione Sicilia et al (Case C–206/13) ECLI:EU:C:2014:126 ..................................................................................... 206 Digital Rights Ireland; Seitlinger and Others (Joined Cases C–293/12 and C–594/12), Judgment 8 April 2014 .................................................................... 6 Draehmpaehl v Urania Immobilienservice OHG (Case C–180/95) [1997] ECR I–2195.................................................................................................... 158 ERT (Case C–260/89), [1991] ECR I–2964 ..................................................... 71–2 Faccini Dori v Recreb Srl (Case C–91/92) [1994] ECR I–3325........................... 166 Foto-Frost (Case 314/85) [1987] ECR 4199......................................................... 23 Fransson (Case C–617/10) Judgment 26 February 2013, ECR 2013:105............................................v, vi, 1–2, 5–6, 15, 71–2, 134–5, 142, 146–50, 152, 154, 157, 159–65, 168, 172–3, 187, 191–209, 211–12, 215–17, 219 Garklans (Case 470/11), 19 July 2012, not yet published..................................... 71 Gasparini and Others, Criminal Proceedings Against (Case C–467/04) [2006] ECR I–9199 ............................................................. 142 Gözütok, Criminal Proceedings Against (Case C–187/01) [2003] ECR I–1345.................................................................................................... 142 Gutmann v Commission of the EAEC (Joined Cases 18/65 and 35/65) [1967] ECR 75 ............................................................................................... 174 i-21 Germany GmbH (Case C–392/04) and Arcor AG & Co KG (Case C–422/04) (Joined Cases) v Bundesrepublik Deutschland [2006] ECR I–8559 .................................................................................... 175–7 Internationale Handelsgesellschaft (Case 11/70) [1970] ECR 1161 .................. 91–2 Johnston (Case 222/84) [1986] ECR 1651 ............................................................. 9 Kadi (Cases 402/05 P; 415/05 P), [2008] ECR I–6351 ......................................... 20 Kadi II (Joined Cases C–584/10 P, C–593/10 and C–595/10 P) 18 July 2013 (not yet published)....................................................................... 67 Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire Art Ltd (Case C–167/01) [2003] ECR I–10155 ........................................................... 158 Kapferer v Schlank & Schick GmbH (Case C–234/04) [2006] ECR I–2585................................................................................................ 174–5 Kolpinghuis Nijmegen BV, Criminal Proceedings Against (Case 80/86) [1987] ECR 3969 ................................................................................... 167, 173 Kraaijenbrink, Criminal Proceedings Against (Case C–367/05) [2007] ECR I–6619 ........................................................................ 142, 149, 156 Kretzinger, Criminal Proceedings Against (Case C–288/05) [2007] ECR I–6441 ........................................................................................ 142 Kühne & Heitz NV v Produktschap voor Pluimvee en Eieren (Case C–453/00) [2004] ECR I–837 ........................................................... 174–7 Limburgse Vinyl Maatschappij NV (LVM) (Case C–238/99P, C–244/99P, C–245/99P, C–247/99P, C–250/99P, C–252/99P and C–254/99P) [2002] ECR I–8375 ...................................................... 151, 174 Louloudakis v Elliniko Dimosio (Case C–262/99) [2001] ECR I–5547 ...... 163, 199 M, Criminal Proceedings Against (Case 398/12) [2014] Judgment 5 June 2014 (nyr) ........................................................................... 143 Maizena Gesellschaft mbH and others v Bundesanstalt für landwirtschaftliche Marktordnung (BALM) (Case 137/85) [1987] ECR 4587 .............................. 149 Mangold v Rüdiger Helm (Case C–144/04) [2005] ECR I–9981........................ 171

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Mannesmannröhren-Werke AG v Commission (Case T–112/98) [2001] ECR II–729 ................................................................ 15 Mantello (Case C–261/09) [2010] ECR I–11477 ECR I–11477 ..................... 154–7 Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C–106/89) [1990] ECR I–4135 ............................................................. 166 Melloni v Ministerio Fiscal (Case C–399/11) Judgment 26 February 2013, ECR 2013:107................................vi, 1–2, 5–6, 71, 147, 149, 159–60, 163, 199 Ministero dell’Industria, del Commercio e dell’Artigianato v Lucchini SpA (Case C–119/05) [2007] ECR I–6199 ................................. 178–80 Miraglia, Criminal Proceedings Against (Case C–469/03) [2005] ECR I–2009.................................................................................................... 142 NS and ME (Joined cases C–411/10 and C–493/10) [2011] ECR I–13905..... 16, 32 Ntionik Anonymi Etaireia Emporias H/Y Logismikou kai Paroxis Ypiresion Michanografisis and Ioannis Michail Pikoulas v Epitropi Kefalaiagoras (Case C–430/05) [2007] ECR I–5835 ......................... 166 Nunes and Evangelina de Matos, Criminal Proceedings Against (Case C–186/98) [1999] ECR I–4883 ............................................................. 158 Omega Spielhallen (Case C–36/02) [2004] ECR I–9641....................................... 69 O.S. (Joined Cases C–356/11 and C–357/11), 6 December 2012, (not yet published) ............................................................................................ 70 P v S and Cornwall County Council (Case C–13/94) [1996] ECR I–2143 ............ 14 Pfleger (Case C–390/12) judgment of 30 April 2014 .......................................... 198 Profaktor Kulesza et al (Case C–188/09) ECR 2010 I–7639 .............................. 199 Prosecutor v Kunarac, Kovac and Vukovic (Case No IT-96-23-T) 2001, judgment of 22 February 2001 ................................................................. 110–11 Pupino, Criminal Proceedings Against (Case C–105/03) [2005] ECR I–5285..... 167 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer fur das Saarland (Case 33/76) [1976] ECR 1989 ...................................................... 158–9, 174–7 Rijksdienst voor Pensioenen v Robert Engelbrecht (Case C–262/97) [2000] ECR I–7321 ............................................................. 166 Roquette Frères (Case C–94/00), [2002] ECR I–9011 .......................................... 15 Rüdiger Jager v Amt für Landwirtschaft Bützow (Case C–420/06) [2008] ECR I–1315 ............................................................. 172 Schmidberger (Case C–112/00) [2003] ECR I–5659 ............................................ 68 Siesse—Soluções Integrais em Sistemas Software e Aplicações Ldª v Director da Alfândega de Alcântara (Case C–36/94) [1995] ECR I–3573....... 158 Sky (Case C–283/11) 22 June 2012, not yet published ..................................... 68–9 Sneersone and Kampanella (Case 14737/09), judgment from 12th July 2011.................................................................................................. 33 Spasic, Criminal Proceedings Against (Case C–129/14 PPU) [2014] Judgment 27 May 2014 (nyr) .......................................... 143, 153, 181–8 Spector Photo Group NV and Chris Van Raemdonck v Commissie voor het Bank-, Financie- en Assurantiewezen (CBFA) (Case C–45/08) [2009] ECR I–12073 ................................................. 165–8, 173 Stauder (Case 29/69) ............................................................................................ 29 Toshiba .............................................................................................................. 157 Toshiba (Case C–17/10) decided 14 February 2012 ........................................... 200 Toshiba Corporation and Others (Case C–17/10) EU:C:2011:552 ................. 151–3

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Toshiba Corporation and Others v Úrˇad pro ochranu hospodárˇské souteˇže (C–17/10) EU:C:2012:72 ................................................................... 151 Turanský, Criminal Proceedings Against (Case C–491/07) [2008] ECR I–11039.................................................................................................. 142 Van Esbroeck [2006] (Case C–436/04) [2006] ECR I–2333 ECR I–2333................................................................................ 142–3, 156, 187 Van Gend en Loos (Case C–26/62) [1963] ECR 1 ................................................ 64 Van Munster v Rijksdienst voor Pensioenen (Case C–165/91) [1994] ECR I–4661.................................................................................................... 166 Van Straaten v Staat der Nederlanden and Republiek Italië (Case C–150/05) [2006] ECR I–9327 ............................................................. 142 Vivaio dei Molini Azianda Agricola Porro Savoldo (Case C–502/11), 4 October 2012 (not yet plished) ...................................................................... 70 Von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen (Case 14/83) [1984] ECR 1891 ...................................................................... 166 Westzucker v Einfuhr und Vorratstelle Zucker (Case 57/72) [1973] ECR 340...... 66 Wilhelm and others v Bundeskartellamt (Case 14/68) [1969] ECR 1 ......... 149, 174 Willy Kempter KG v Hauptzollamt Hamburg-Jonas (Case C–2/06) [2008] ECR I–411 ...................................................................................... 176–7 X, Criminal Proceedings Against (Case C–60/02) [2004] ECR I–651 ......... 167, 173 X, Criminal Proceedings Against (Joined Cases C–74/95 and C–129/95) [1996] ECR I–6609 ........................................................................................ 173

European Court of Human Rights Al-Jedda v United Kingdom (App no 27021/08) (2011) 53 EHRR 789 judgment of 7 July 2011 ................................................................................... 99 Al-Skeini v United Kingdom (App no 55721/07) (2011) 53 EHRR 18 ................. 99 Axel Springer AG v Germany [GC] (App no 39954/08) 7 February 2012 ............ 64 Behrami and Behrami v France (App no 71412/01) (2007) 45 EHRR SE 85 ........ 99 Belgian Linguistics Case{,} 23 July 1968, Series A No 6 ..................................... 113 Bendenoun (App no 12547/86, ser A 284) ......................................................... 132 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland (Bosphorus Airlines v Ireland) (App no 45036/98) (2006) 42 EHRR 1 .................................. 13, 15–18, 97, 103 CAS and CS v Romania App no 26692/05 (20 March 2012) ............................. 115 Cha’are Shalom Ve Tsedek v France, Application no 27417/95 ............................ 62 CN v United Kingdom (App no 4239/08) (13 November 2012) ........................................................ 108, 114–15, 119, 125 CN and V v France (App no 67724/09) (11 October 2012) .......................................................... 108, 114, 116, 118, 120 Cooperatieve Producentenorganisatie Nederlandse Kokkelvisserij UA v the Netherlands (App no 13645/05) (2009) 48 EHRR SE18 ................... 97 Dahlab v Switzerland (dec.) no 42393/98, ECHR 2001-V ................................... 62 E and Others v UK (App no 45508/99) (26 November 2002) ............................ 108 Egeland and Handseid v Norway, no 34438, 16 April 2009 ................................ 64 Engel and Others v The Netherlands (App nos 5100/71, 5101/71, 5102/71, 5354/72, 5370/72) Judgment 8 June 1976 ................... 154, 163–4, 202 ES and Others v Slovakia (App no 8227/04) (15 September 2009)..................... 115

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Gorzelik and others (Application no 44158/98) ................................................... 62 Greece v the United Kingdom, Application no 176/56 ......................................... 59 Handyside v United Kingdom, 7 December 1976, Series A no 24 ........................ 61 Hauschildt v Denmark (App no 10486/83), Judgment 24 May 1989 ................. 145 IG v Republic of Moldova App no 53519/07 (15 May 2012) ............................ 115 Ireland v United Kingdom (1978) Series A no 25 ................................................. 59 Iversen v Norway (App no 1468/62) .................................................................. 109 James and Others v the United Kingdom, 21 February 1986, Series A no 98................................................................................................... 61 Janosevic v Sweden (App no 34619/97) ..................................................... 132, 193 KU v Finland (App no 2872/02) (2 December 2008) .......................................... 115 Lawless v Ireland, 1 July 1961, Series A no 3 ....................................................... 59 Leander v Sweden, 26 March 1987, Series A no 116............................................ 63 M C v Bulgaria (App no 39272/98) (4 December 2003)..................................... 108 M and Others v Italy and Bulgaria (App no 40020/03) (31 July 2012) ...... 108, 117 Manasson v Sweden (App no 41265/98) 8 April 2003 ....................................... 216 Maresti (App no 55759/07)................................................................................ 133 Matthews v United Kingdom (App no 24833/94) (1999) ECHR 1999-I ........ 13, 97 Murphy v Ireland, no 44179/98, § 73, ECHR 2003-IX ....................................... 62 Nilsson v Sweden (App no 73661/01), Decision 13 December 2005 .................. 145 Olsson v Sweden, judgment of 24 March 1988 .................................................... 79 Otto-Preminger Institut v Austria, judgment of 20 September 1994 ..................... 62 Prosecutor v Kunarac, Kovac and Vukovic, Appeals judgment of June 12, 2002 ............................................................................. 111 Rantsev v Cyprus and Russia (App no 25965/04) (7 January 2010) ................................................................ 108–11, 113, 116–18 Rosenquist v Sweden (App no 60619/00), Decision 14 September 2004 .................................................................. 132, 144 Rosenquist v Sweden and Carlberg v Sweden (App no 9631/04 27) January 2009 .................................................................................................. 216 Ruotsalainen v Finland (App no 13079/03) judgment 16 June 2009 .......................................................................... 133, 144, 202, 214 Sahin v Turkey [GC] (App no 44774/98) ECHR 2005-XI ................................ 62–3 Saramati v France, Germany and Norway (App no 78166/01) [1999] ECHR 182, decision of 2 May 2007................................................................. 99 Seguin v France App no 42400/98 (decision, 7 March 2000) ............................. 113 Siliadin v France (App no 73316/01) (26 July 2005) .... 108, 111–15, 118, 120, 125 Stec and Others v the United Kingdom [GC] no 65731/01, ECHR 2006-VI ........ 61 Stubbings and Others v United Kingdom (App nos 22083/93, 22095/93) 22 October 1996 ............................................................................................ 108 Stummer v Austria App no 37452/02 (Grand Chamber, 7 July 2011) ................ 114 Tsonev (App no 2376/03)................................................................................... 133 Van der Mussele v Belgium, judgment of 23 November 1983, Series A no 70................................................................................... 109, 113–14 Västberga Taxi and Vulk v Sweden (App no 36985/97) ..................................... 193 Vulic and Västberga taxi (App no 36985/97) ..................................................... 132 Wingrove v United Kingdom, judgment of 25 November 1996 ............................ 62 X and Y v Netherlands (App no 8978/80) 26 March 1985 ................................ 108 Z and Others v UK (App no 29392/05) 10 May 2001 ....................................... 108

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Zolotukhin v Russia (App no 14939/03) judgment 10 February 2009 ...............................132–4, 143–4, 149, 156, 192–3, 201–2, 205, 211–12, 214

European Commission on Human Rights ............................................... 13 Confédération française démocratique du travail v European Communities (App no 8030/77), Decision of 10 July 1978 ........................ 13, 15 Kokkelvisserij v Netherlands (App no 13645/05), Decision of 20 January 2009 ............................................................................ 16 Kruslin v France (App no 11801/85), Decision of 24 April 1990 ......................... 24 M & Co v Federal Republic of Germany (App no 13258/87), Decision of 9 February 1990 ............................................................................ 15 MSS v Belgium and Greece (App no 30696/09), 21 January 2011 ................. 16–17 Saadi v United Kingdom (App no 13229/03)........................................................ 16 Slivenko v Latvia (App no 48321/99), Decision of 9 October 2003 ..................... 24

National Courts Germany BVerG NJW 2012, 1202 Rdn. 40....................................................................... 182

Sweden Supreme Court, B 4946-12, 11 June 2013.................................................. 161, 219 Supreme Court, NJA 1928.125 ............................................................................ 76 Supreme Court, NJA 1934:515, Lubeck judgment 1934 ...................................... 76 Supreme Court, NJA 1948, s 188......................................................................... 77 Supreme Court, NJA 1954 s 532.......................................................................... 77 Supreme Court, NJA 1955 s 39............................................................................ 77 Supreme Court, NJA 1973 s 423, AD 1972 nr 5 .................................................. 78 Supreme Court, NJA 1996 s 668.......................................................................... 80 Supreme Court, NJA 2000 p 190 ....................................................................... 219 Supreme Court, NJA 2000 s 622........................................................ 143, 145, 219 Supreme Court, NJA 2002 s 624.......................................................................... 84 Supreme Court, NJA 2003 p 499 ....................................................................... 219 Supreme Court, NJA 2003 s 163.......................................................................... 83 Supreme Court, NJA 2004 s 393.......................................................................... 84 Supreme Court, NJA 2004 s 510 I ............................................................. 143, 216 Supreme Court, NJA 2004 s 510 II ............................................................ 143, 216 Supreme Court, NJA 2004 s 840........................................................................ 207 Supreme Court, NJA 2004 s 840 I ............................................................. 143, 145 Supreme Court, NJA 2004 s 840 II ............................................................ 143, 145 Supreme Court, NJA 2005 s 805, Åke Green judgment ....................................... 81 Supreme Court, NJA 2005 s 856........................................................................ 143 Supreme Court, NJA 2007 s 1037........................................................................ 83 Supreme Court, NJA 2008 s 893.......................................................................... 84 Supreme Court, NJA 2008 s 963.......................................................................... 84 Supreme Court, NJA 2009 s 280.......................................................................... 84

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Supreme Court, NJA 2010 p 168 ........................................................................... 6 Supreme Court, NJA 2010 s 168........................................................ 193, 203, 207 Supreme Court, NJA 2010 s 168 I ................................... 144–6, 162, 214, 216–17 Supreme Court, NJA 2010 s 168 II .................................. 144–6, 162, 214, 216–17 Supreme Court, NJA 2010 s 449........................................................................ 133 Supreme Court, NJA 2011 p 444 ........................................................................... 6 Supreme Court, NJA 2011 s 444............................ 146–7, 193, 195, 198, 206, 216 Supreme Court, NJA 2013 s 42.......................................................................... 177 Supreme Court, NJA 2013 s 502............ 134, 145, 148, 161–2, 164, 192, 205, 209 Supreme Court, NJA 2013 s 746................................................................ 149, 192 Supreme Administrative Court, RÅ 1958, 304 ................................................... 221 Supreme Administrative Court, RÅ 1974 s 121 ................................................... 78 Supreme Administrative Court, RÅ 1988 ref 79................................................... 79 Supreme Administrative Court, RÅ 1996 ref 50................................................... 80 Supreme Administrative Court, RÅ 2000 ref 66........................................... 84, 219 Supreme Administrative Court, RÅ 2001 ref 22................................................. 221 Supreme Administrative Court, RÅ 2002 ref 14................................................... 83 Supreme Administrative Court, RÅ 2002 ref 79................................................. 143 Supreme Administrative Court, RÅ 2002 ref 104................................................. 84 Supreme Administrative Court, RÅ 2005 ref 11................................................... 83 Supreme Administrative Court, RÅ 2006 ref 87................................................... 84 Supreme Administrative Court, RÅ 2009 ref 34................................................. 222 Supreme Administrative Court, RÅ 2009 ref 94................. 133, 144, 193, 201, 214 Supreme Administrative Court, HFD 2013 ref 71 .............................................. 134 Court of Appeals, RH 1997:47 ............................................................................ 80 Göteborg District Court, 2010-10-18 mål B 256-10 .......................................... 215 Göteborg District Court, 2010-10-18 mål B 1771-07 ........................................ 215 Göteborg District Court, 2010-10-18 mål B 2683-09 ........................................ 215 Göteborg District Court, 2010-10-18 mål B 11566-09 ...................................... 215 Helsingborg District Court, B 5908-13, overturned Ö 3367-13 145 (Appeals Court for Skåne and Blekinge) ......................................................... 145 Helsingborg District Court, B 5964-13, overturned Ö 3368-13 145 (Appeals Court for Skåne and Blekinge) ......................................................... 145 Hudiksvall Court of First Instance, B 2220-11 (2012-06-15) Judgment ............. 128 Övre Norrland Appeals Court, B 801-09 ........................................................... 146 Övre Norrland Appeals Court, Ö-496-11, Final Decision 1 September 2001 ..... 195 Skellefteå Court of First Instance, B 179-12 (2012-04-19) ................................. 126 Solna Court of First Instance, B 421-08 (2010-06-18)........................................ 127 Solna District Court, 2010-05-14 mål B 8288-99............................................... 215 Stockholm District Court, 2010-09-14 mål B 12196-09..................................... 215 Svea Court of Appeal, B 5971-10 (2011-06-01) ................................................. 127 Varberg District Court, 2010-10-26 mål B 2501-09 ........................................... 215 Värmland District Court, 2012-05-04 mål B 2159-09........................................ 215 Western Sweden Court of Appeal, B 2432-09, Magnus Olofsson v Ekobrottsmyndigheten, judgment of 23 June 2010 ......................... 133, 146, 215

United States of America Marbury v Madison, 5 US (1 Cranch) 137 (1803) ............................................. 138

Table of Legislation European Union Treaties, Agreements, Charters and Conventions Agreement for the Accession of the European Union to the European Convention on Human Rights (draft) .................... 8, 19, 22, 26–7, 29, 31, 93–4, 96, 98–101 Art 1 ........................................................................................................... 96, 98 Art 3 ........................................................................................................... 21, 96 (2) ..................................................................................................... 97, 100–1 (3) ................................................................................................................. 97 (5) ................................................................................................................. 97 Art 6 ................................................................................................................. 98 Art 7 ..................................................................................................... 98, 100–1 Art 8 ............................................................................................................... 102 Amsterdam Treaty............................................................................................ 9, 72 Art 11 ............................................................................................................... 35 Protocol (No 2) integrating the Schengen acquis into the framework of the European Union, [2006] OJ C–321E/191 ....................... 142 Charter of Fundamental Rights of the European Union ................................................... vi, 1–2, 4–6, 13–15, 18, 29–30, 32, 60, 65, 68, 71–2, 89–92, 94, 103, 141, 146, 148, 151, 153–4, 157, 160–2, 165, 172–3, 181–2, 193, 195, 197–201, 203–5, 209, 215–17, 219 Art 4 ........................................................................................................... 16, 33 Art 5, (1)–(3) .................................................................................................. 121 Art 11 ............................................................................................................... 69 Art 16 ............................................................................................................... 69 Art 41(2) .......................................................................................................... 67 Art 47 ......................................................................................... 3–4, 67, 159–60 (II).................................................................................................................. vi Art 48 ............................................................................................................. 3–4 (2) ........................................................................................................... 3, 160 Art 49 ............................................................................................................... 71 (1) ........................................................................................................... 3, 172 Art 50 .......................................134, 146–57, 161–4, 173, 181–4, 191, 193, 195, 200, 202–4, 206–7, 209, 211, 215–16 Art 51 ................................................................................................... 30, 147–9 (1) ....................................................................................... 6, 196–7, 201, 206 Art 52 ....................................................................................................... 66, 200 (1) ..................................................................................................... 67, 181–5 (3) ....................................................................... 8, 14–15, 18, 66, 150, 153–4

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(4) ................................................................................................................. 71 (7) ............................................................................................................... 184 Art 53 ......................................................................................... 3–5, 66, 71, 160 Convention Implementing the Schengen Agreement 2000 .............. 97, 99, 142, 200 Art 54 ..................................................142, 150, 153, 155–7, 181–2, 184–7, 189 Council of Europe Anti-Trafficking Convention (2005) CETS 197 .................................................................................... 107, 116, 120–1 Art 1 ............................................................................................................... 116 Art 4 ............................................................................................................... 116 (a) ............................................................................................................... 109 Art 6 ............................................................................................................... 118 Art 19 ............................................................................... 116, 118–19, 121, 123 Art 23 ............................................................................................................. 119 EC Treaty ....................................................................................................... 9, 141 Art 10 (now Art 4(3) TEU) ..................................................................... 174, 176 Art 54(3)(g) ................................................................................................ 168–9 Art 220 ............................................................................................................. 20 ECSC Treaty .......................................................................................................... 7 EEC Treaty............................................................................................................. 7 Art 164 ............................................................................................................. 20 EU Treaty, Art 6 ..................................................................................................... 4 Lisbon Treaty ................10, 12–13, 15, 19, 29, 41–3, 57, 91–2, 141, 152, 195, 203 Art 6(2) ............................................................................................................ 30 Protocol .......................................................................................................... 203 Protocol 8 ..................................................................12–13, 18–19, 26, 31, 94–6 Art 1 ............................................................................................................. 19 Lomé (I) Convention ............................................................................................ 36 Maastricht Treaty 1992 see Treaty on European Union Single European Act 1987, [1987] OJ L169/1 .................................................. 36–7 Art 30 ............................................................................................................... 36 Strasbourg Convention................................................................................... 12, 14 Treaty on European Union ....................35, 37, 39, 41–2, 49–50, 53, 55–8, 91, 141 Title V .................................................................................................. 39–43, 52 Ch 2, s 2 ....................................................................................................... 40 Art F(2) .............................................................................................................. 9 Art J.1 ........................................................................................................ 35, 37 Art L................................................................................................................... 9 Art 2 ....................................................................................................... 137, 154 Art 3 ................................................................................................................. 57 (1) ................................................................................................................. 57 (2) ............................................................................................................... 185 (3) ................................................................................................................. 57 (5) ........................................................................................................... 35, 57 Art 4 (1) ................................................................................................................. 65 (3) (ex Art 10) ................................64, 70, 148, 158–9, 166–7, 169–72, 175–6 Art 5 ................................................................................................................. 58 (2) ................................................................................................................. 65 (3) ................................................................................................................. 69

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Art 6 ................................................................................................... 4, 31, 65–6 (1) ............................................................................................ 72, 150, 153–4, 184, 197, 201 (2) ........................................................................................... 9–10, 13, 19, 91 (3) ................................................................................... 30, 72, 148, 150, 207 Art 16 ............................................................................................................... 40 Art 19 ......................................................................................................... 19–20 Art 21 ......................................................................................................... 35, 57 (1) ................................................................................................................. 57 (2)(b)............................................................................................................. 57 (3) ................................................................................................................. 40 Art 22(1) .................................................................................................... 42, 43 Art 24 (ex 11; ex J.1) ........................................................................ 39, 41–2, 53 Art 24(1) ................................................................................................... 42–3 Art 26(3) .......................................................................................................... 41 Art 27(3) .......................................................................................................... 42 Art 30(1) .......................................................................................................... 43 Art 31 ......................................................................................................... 39–40 (2) ................................................................................................................. 40 Art 40 ......................................................................................................... 56, 58 Art 42(4) .......................................................................................................... 42 Art 46(d) ............................................................................................................ 9 Art 47 ............................................................................................................... 39 Protocol 8 ............................................................................................................ 91 Treaty on the Functioning of the European Union (TFEU) ................................................................... 32, 40–2, 50, 53, 55–8 Pt V ........................................................................................................ 40–1, 43 Art 2 (2) ................................................................................................................. 49 (4) ........................................................................................................... 39, 42 Art 3 ........................................................................................................... 43, 58 Art 4 ........................................................................................................... 43, 58 (3) ................................................................................................................. 23 Arts 5–6...................................................................................................... 43, 58 Art 43 ............................................................................................................... 41 Art 45 ............................................................................................................... 70 Art 207(2) ........................................................................................................ 41 Art 209(1) ........................................................................................................ 41 Art 214(3) ........................................................................................................ 41 Art 218 (ex 228 EC) ............................................................................... 9, 12, 41 (11) ....................................................................................................... 31, 101 Art 238 ............................................................................................................. 40 Art 263 ............................................................................................................. 39 Art 267 ......................................................................................... 24, 192, 195–6 Art 294 ............................................................................................................. 40 Art 325 ........................................................................................................... 158 Protocol on transitional provisions for voting procedures in the Council ............................................................................................... 40

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Regulations Regulation (EC) No 2988/95 on the protection of the European Communities financial interests, OJ L 312/1, Art 6 ......................... 150 Regulation (EC) No 975/1999 [1999] OJ L120/1–7......................................... 44–5 Regulation (EC) No 976/1999 [1999] OJ L120/8-14 ....................................... 44–5 Regulation (EC) No 343/2003 (Dublin Regulation) ........................... 16, 32, 97, 99 Art 3(2) ............................................................................................................ 16 Regulation (EC) No 2201/2003 (Brussels II) .................................................... 32–3 Regulation (EC) No 1889/2006 [2006] OJ L386/1 .............................................. 44

Directives Dir 68/151/EEC 1st Company Law Directive ......................................... 168, 170–1 Art 6 ................................................................................................. 169–70, 172 Dir 78/660/EEC 4th Company Law Directive), [1978] OJ L-222/11 .................................................................................................... 168 Dir 83/349/EEC 7th Company Law Directive ................................................ 168–9 Dir 97/13/EC on a common framework for general authorizations and individual licences in the field of telecommunications services, [1997] OJ L-117/15 ........................................................................................ 175 Dir 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, [2000] OJ L-180/22, Art 15 ........................................................................................ 158 Dir 2000/78/EC establishing a general framework for equal treatment in employment and occupation, [2000] OJ L-303/16 .......................................... 171 Art 17 ............................................................................................................. 158 Dir 2003/6/EC on insider dealing, [2003] OJ L-96/16 .................................... 165–6 Art 14(1) .................................................................................................... 165–7 Dir 2003/86, Art 4(1) ........................................................................................... 70 Dir 2006/24/EC on Data Retention ........................................................................ 6 Dir 2006/112/EC VAT Directive..................................................... 197–8, 202, 207 Dir 2009/52/EC.............................................................................................. 122–4 Art 2 ............................................................................................................... 123 Art 9(1)(d) ...................................................................................................... 122 Art 10 ............................................................................................................. 122 Art 22 ............................................................................................................. 122 Dir 2011/36/EU on preventing and combating trafficking in human beings .............................................................................. 106–7, 120–3 Art 2(3) .......................................................................................... 107, 120, 123 Art 11 ............................................................................................................. 123 Art 18(4) ........................................................................................................ 123

Decisions Framework Decision 2002/584/JHA on the European arrest warrant [2002] OJ L-190/1 ............................................................................................ 32 Art 3(2) ......................................................................................... 143, 150, 153, 155, 157, 186

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Art 4 (3) ............................................................................................................... 143 (5) ............................................................................................................... 143 Art 4a(1)........................................................................................... 3–4, 159–60 Framework Decision 2002/629/JHA, OJ L203........................................... 107, 121 Arts 25–26...................................................................................................... 107 Framework Decision 2005/214/JHA on mutual recognition of financial penalties [2005] OJ L-76/16, Art 7(2)(a) ............................... 143, 186 Framework Decision 2008/909/JHA on mutual recognition of judgments in criminal matters [2008] OJ L-327/27, Art 9(1)(c) .......... 143, 186 Framework Decision 2009/299/JHA ...................................................................... 3 Framework Decision 2009/948/JHA .................................................................. 186

National Italy Civil Code Art 2621 ..................................................................................................... 170–1 Art 2622 ..................................................................................................... 170–1 Criminal Code.................................................................................................... 169

Spain Constitution ....................................................................................... 2–3, 160, 199 Art 24 ................................................................................................................. 6 (2) ................................................................................................................... 2

Sweden Code of Judicial Procedure, Chapter 54, section 8 ............................................. 196 Constitution ..............................................76–8, 80–1, 83, 85, 88–9, 135, 140, 203 Chapter 2 ................................................................................................... 77, 89 Chapter 8 ......................................................................................................... 81 Chapter 11 ....................................................................................................... 81 Art 14 ..................................................................................................... 80, 86 Criminal Code 3:5 (BrB 3:5—misshandel).......................................................... 129 Criminal Code 4:3.............................................................................................. 127 Criminal Code 4:4 (BrB 4:4—olaga tvång) ......................................................... 129 Criminal Code 8:8 (BrB 8:8—egenmäktigt förfarande) ...................................... 129 Criminal Code 9:1 (BrB 9:1—bedrägeri) ........................................................ 126–8 Criminal Code 9:5 (BrB 9:5—ocker) .................................................................. 129 Freedom of Expression Act ................................................................................ 135 Freedom of the Press Act .............................................................................. 85, 135 Income Tax Act (inkomstskattelagen) (1999:1229) Chapter 14 section 2...................................................................................................... 217 section 4...................................................................................................... 217 Chapter 15–16................................................................................................ 217

xxii Table of Legislation Instrument of Government 1974 .......................................................................... 77 Chapter 2 ......................................................................................................... 80 Chapter 11, para 14 ......................................................................................... 78 Instrument of Government, Chapter 2, para 19 ................................................. 203 Lag (1990:52) om särskilda bestämmelser om vård av unga ................................ 79 Law on Driving Licences (Körkortslagen) (1998:488) Chapter 5, § 3 ................................................................................................ 145 Chapter 7, § 2(7) ............................................................................................ 145 Law on Foreigners (Utlänningslagen) ................................................................. 122 Penal Code (brottsbalken) (1962:700) Chapter 25, s 4 ............................................................................................... 221 Chapter 29, s 5 ............................................................................................... 222 Public Access and Secrecy Act (offentlighets-och sekretesslagen) (2009:400), Chapter 35, s 3 ................................................................................................ 220 SFS 2002:436 ..................................................................................................... 127 SFS 2004:406 ..................................................................................................... 127 SFS 2010:371 ..................................................................................................... 127 Tax Penal Code (skattebrottslagen) (1971:69) .................................................... 213 section 2 ......................................................................................................... 220 sections 3–4 .................................................................................................... 213 section 13 ....................................................................................................... 213 Tax ProcedureAct (skatteförfarandelagen) (2011:1244) ..................................... 222 Chapter 49 section 4...................................................................................................... 212 section 5...................................................................................................... 220 section 6...................................................................................................... 212 sections 12-15 ............................................................................................. 212 Chapter 51 ..................................................................................................... 212 section 1...................................................................................................... 222

International Abolition of Forced Labour Convention 1957 ........................... 112, 114, 120, 126 Abolition of Slavery Convention 1956 ......................................................... 111–14 Art 1 ............................................................................................................... 116 European Convention on Human Rights 1950.............. v, vi, 1, 7–15, 17–19, 21–7, 29–32, 36, 59–66, 68, 72–3, 75, 78–9, 81–2, 86, 90–4, 96–7, 99, 102–3, 108–9, 112–13, 115, 117, 131, 133–4, 136, 140–1, 144–5, 149, 152–4, 156–7, 162, 191–3, 200–1, 203, 207–9, 214–17, 219, 222 Art 3 ............................................................................................................... 108 Art 4 ..........................................................108–10, 112–13, 115–20, 125, 127–9 (3) ............................................................................................................... 109 Art 6 ............................................................................................... 82–4, 97, 132 Art 7 ................................................................................................................... 3 Art 8 ............................................................................................... 79, 84–5, 108 Art 10 ............................................................................................................... 64

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Art 13 ....................................................................................... 61, 82–4, 87, 127 Art 15 ......................................................................................................... 59, 66 (2) ............................................................................................................... 112 Art 22 ............................................................................................................... 98 Art 26 ............................................................................................................... 98 Art 35 ............................................................................................................... 61 Art 36 ........................................................................................................... 96–7 (1) ................................................................................................................. 23 Art 39 ............................................................................................................... 98 Arts 46–47........................................................................................................ 98 Art 53 ............................................................................................................... 14 Art 59 ......................................................................................................... 91, 98 (2) ........................................................................................................... 96, 99 (b) ............................................................................................................. 99 Protocols ................................................................................................ 100, 136 Protocol 1 ....................................................................................................... 112 Art 1 ................................................................................................. 18, 62, 97 Art 2 ............................................................................................................. 63 Arts 3–4 .................................................................................................... 63–4 Art 7 ......................................................................................................... 63–4 Arts 8–11 ...................................................................................................... 63 Art 15 ........................................................................................................... 63 Protocol 4 ....................................................................................................... 112 Protocol 7 ....................................................................................................... 203 Art 4 ...................................15, 86, 132, 143–4, 148, 150–4, 156, 161–2, 164, 182, 200, 203, 209, 211, 213–14, 216 (2) ........................................................................................................... 184 Protocol 11 ............................................................................................... 12, 108 Protocol 14 ......................................................................................... 12, 91, 108 European Economic Area Agreement ............................................................. 20, 26 ILO Convention No 29 (1930) Concerning Forced or Compulsory Labour ......................................................... 108, 113–14, 116, 121, 123–4, 126–7 Art 1 ............................................................................................................... 119 (1) ............................................................................................................... 112 Art 2 (1) ............................................................................................................... 112 (2) ............................................................................................................... 112 Art 2(1) .................................................................................................. 114, 126 Art 4(1) .......................................................................................................... 116 Art 25 ............................................................................... 112–13, 117, 119, 127 ILO Convention No 182 (1999) on Worst Forms of Child Labor ...................... 108 Palermo Protocol see United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children 2000 Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention (Slavery Convention) 1926 ................................................... 113, 116 Art 1 ............................................................................................................... 110 (2) ............................................................................................................... 110

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Statute of the International Court of Justice ......................................................... 99 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery see Abolition of Slavery Convention 1956 UN Charter, Art 92 .............................................................................................. 99 UN Convention on Civil and Political Rights 1966 ............................................ 108 UN Convention on the Rights of the Child 1989 ......................................... 90, 108 Art 19 ............................................................................................................. 116 Art 32 ............................................................................................................. 116 Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography 2000............................................................................. 108 United Nations Convention against Transnational Organized Crime ................. 105 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children 2000 (Palermo Protocol) ................................................................. 105, 107, 113, 116, 118, 121, 126–7 Art 3 ............................................................................................................... 111 (a) ......................................................................................................... 109–10 Art 9(5) .......................................................................................................... 119 Vienna Convention on the Law of Treaties 1969, Art 31(3)(c) ........................... 113

1 Human Rights in EU Law 2014: Two Key Cases of 2013* JOAKIM NERGELIUS**

INTRODUCTION

T

HE READER OF this book will find that two topics are by far the most frequent in the different articles presented here: the accession of the EU to the European Convention on Human Rights (ECHR) and reactions, from a Swedish perspective, on the important judgment in the Åkerberg Fransson case from February 2013.1 The fact that this latter judgment has caused such a huge reaction and interest in Sweden and among Swedish lawyers in particular is logical, given that the Swedish Supreme Court, Högsta Domstolen, a few months later, in June 2013, in plenary reversed its previous policy and acknowledged simultaneous criminal and tax sanctions, for the same actions, as an illegal violation of ne bis in idem, as acknowledged both by ECHR and the Charter of Fundamental Rights (CFR). This interesting judgment2 was a direct consequence of the Åkerberg Fransson case, to which it did also quite frequently refer. In this article, I intend to deal not so much with the first, rather complicated issue. I would however like to dwell on certain aspects and consequences of the Åkerberg Fransson case, but from a totally different angle. In the international doctrine, it has often been referred to as a ‘breakthrough’ for the practical impact of CFR.3 In that respect, it is often mentioned together with the Melloni case, in which the judgment came the same day (26 February 2013).4 However, when analyzing these two cases, I find that * The first part of this article is based on my comment to the Melloni case, in (2013) Europarättslig tidskrift 821–25. ** Professor of Law, University of Örebro. 1 Case C-617/10 Hans Åkerberg Fransson Judgment 26 February 2013, ECR 2013:105. 2 NJA (Nytt Juridiskt Arkiv, The Supreme Court’s publication of decision) 2013 p 502. 3 Ex. 4 The full citation of which is Case C-399/11 Stefano Melloni v Ministerio Fiscal Judgment 26 February 2013, ECR 2013:107.

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they point in totally different directions and actually do not say the same things. How is this, then, and why are they perceived as identical when they are in fact definitely not? Since the background and content of the Åkerberg Fransson case is discussed by so many other writers here, I do not wish to dwell on that. Suffice it to mention that the ECJ here also made a number of very important general statements concerning the relationship between the Charter, national law and secondary EU law, which are unfortunately hard or even impossible to reconcile with some of its simultaneous positions and statements in Melloni. This is all the more regrettable since it must be supposed that the Court intended to send one single message to the surrounding world with the two simultaneous judgments. A close reading of them, however, reveals that this intended effect was simply not achieved. On the contrary, the position of the ECJ concerning the relationship between the Charter, national (in particular constitutional) law and secondary EU law must now be described as blurred. The ‘blame’ for this, however, cannot be put on the Åkerberg Fransson judgment. Instead, it is almost entirely a result of the unfortunate line of reasoning chosen in Melloni.

THE MELLONI CASE

As already indicated, compared to the Åkerberg Fransson case, the judgment in Melloni raises some fundamental issues that are likely to cause more confusion in the field of EU constitutional law, for many reasons and perhaps for a long time. This is true not least in the field of fundamental rights. In the case, Melloni had been sentenced in Italy to 10 years in prison for fraud related to a bankruptcy. This was established in a trial in which he had not himself been present. The sentence was finally laid down in 2004 and the Italian authorities then wanted him extradited from Spain where he resided, invoking the European Arrest Warrant. In fact, Melloni had then been in Spain for a long time and Italian authorities had first wanted him extradited in 1993. In 1996, Spain accepted this request, but Melloni disappeared and was not caught until 2008. After he had been arrested, a lower Court, Audiencia Nacional, decided that he should be extradited, but Melloni then appealed to the Spanish Constitutional Court, Tribunal Constitucional, arguing that the Spanish Constitution (Art 24(2)) strongly protects the right to a fair trial, that includes the right not to be sentenced to prison—at least not for long—in your absence. After fairly long proceedings, the Constitutional Court decided in June 2011 to put forward three crucial questions to the ECJ. Those three questions all concerned the relationship between three central rules in EU law, namely the European Arrest Warrant (secondary law), the Charter of Fundamental Rights (primary law) and the Spanish

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Constitution, though they were phrased in different terms. One of the reasons for the somewhat—in my view—odd outcome of the case and one of the main difficulties for the ECJ seems to have been the interpretation of the Arrest Warrant, which in its original 2002 version prescribed that all Member States are to execute extraditions from other Member States according to the well-known principle of mutual recognition. At the same time, however, Art 5 of the text contained certain guarantees, clarifying that if someone was requested for extradition having been sentenced in his absence, it should be possible to have the sentence and judgment reviewed. Still, in the new framework decision of 2009, which should have been implemented in the Member States by March 2011 or at the very latest 1 January 2014, it is stated that these guarantees do not apply when the person requested for extradition had been represented by a lawyer and when he had known about the procedure against him and the fact that he might be sentenced in his absence. Despite the fact that there may be reasons for these harsh rules—such as the interest in making the Arrest Warrant work smoothly and, as far as Italy is concerned, the combatting of organized crime—the situation here was complicated, even more so since the ECJ actually neglected to inform the readers of its judgment on the knowledge of such facts that Mr Melloni might have had during the lengthy procedures. Furthermore, the possibilities for extradition were increased in 2009, as explained above, while the Spanish Constitutional Court ought to have based its judgment on the situation in 2008 (CFR Art 7 ECHR and Art 49 (1) CFR)). Anyway, against this background the Spanish Constitutional Court asked the ECJ three questions, which were formulated in the following way: 1.

2.

3.

Must Article 4a(1) of Framework Decision 2002/584/JHA, as inserted by Council Framework Decision 2009/299/JHA, be interpreted as precluding national judicial authorities, in the circumstances specified in that provision, from making the execution of a European arrest warrant conditional upon the conviction in question being open to review, in order to guarantee the rights of defence of the person requested under the warrant? In the event of the first question being answered in the affirmative, is Article 4a(1) of Framework Decision 2002/584/JHA compatible with the requirements deriving from the right to an effective judicial remedy and to a fair trial, provided for in Article 47 of the Charter …, and from the rights of defence guaranteed under Article 48(2) of the Charter? In the event of the second question being answered in the affirmative, does Article 53 of the Charter, interpreted schematically in conjunction with the rights recognised under Articles 47 and 48 of the Charter, allow a Member State to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the requesting State, thus affording those rights a greater level of protection than that deriving from European Union law, in order to avoid an interpretation which restricts or adversely affects a fundamental right recognised by the constitution of the first-mentioned Member State?

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Thus, though all three questions raise very important issues concerning the status of the Arrest Warrant, the third and last question is in a sense wider, since it adds the huge constitutional issue, of general interest to the EU as whole, of the relationship between the Arrest Warrant (secondary EU law), the Charter (primary EU law, cfr Art 6 of the EU Treaty) and a national constitution. Having this very interesting background in mind, the judgment as such is regrettably short. The ECJ applied the Arrest Warrant in its new version; the fact that this in reality made the penalty or at least the application of the relevant penal rules harder was seen as a mere procedural issue and thus obviously unproblematic, which is somewhat surprising. Concerning the first question, the ECJ referred to the principle of mutual recognition and stated that extradition must take place in a case such as this, at least when the convicted person was aware of the trial against him and had the opportunity to be represented by a lawyer (or was aware of the fact that a judgment against him may be given in his absence). Once again, it is not quite clear from the judgment what Melloni really knew, though the judgment is obviously based on the pre-supposition that he was fully aware of all these facts. In relation to question 2, then, the ECJ argued, invoking its own previous jurisprudence as well as case law from the Strasbourg Court, that the right to be present at a trial may be limited, thus arriving, in a not very convincing or persuasive line of reasoning, at the conclusion that the arrest warrant (in particular Art 4a(1)) does not violate Arts 47–48 of the CFR. This argumentation is not convincing and may definitely be criticized, but the answer to the third question is nevertheless the most crucial part of the judgment, in my view. As is well-known, Art 53 of the Charter states that none of its rules may limit or infringe upon the fundamental rights that are acknowledged by EU law, international law, international conventions to which the Member States are parties or the Constitutions of the Member States. The possibility for national courts to maintain a higher standard for single persons in this respect than the one provided by the arrest warrant (as interpreted by the ECJ) was however simply dismissed by the ECJ since that would undermine the principle of the primacy of EU law inasmuch as it would allow a Member State to disapply the legal rules which are fully in compliance with the Charter where they infringe the fundamental rights guaranteed by that State’s constitution.

But isn’t that exactly what national courts ought to do, taking Art 53 of the Charter seriously? This particular line of reasoning of the ECJ is not new. On the contrary, it is well-known from cases such as Costa v Enel5 and Simmenthal.6 It basically 5 6

Case C 6/64 Costa v Enel [1964] ECR 1141. Case C 106/77 Simmenthal [1978] ECR 629.

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means that any kind of EU law, primary as well as secondary, is superior to any kind of national law of the Member States, including the national constitution. This latter part of this constitutional jurisprudence is not accepted by very many Member States or their highest courts, as is also well-known. However, in this case the ECJ first, before maintaining its jurisprudence on this last point, on dubious grounds managed to find that the secondary EU law in question was compatible with the applicable primary EU law, which in itself states that it is inferior in relation to any more far-reaching protection of human rights that may be found in a national constitution. Thus, the ECJ has managed a double operation, both steps of which are most doubtful, in order to ‘save the life’ of the European Arrest Warrant, which has obviously been seen as very crucial. But while saving this patient, hasn’t the ‘life’ or at least the legal status of the arguably considerably more important Charter been sacrificed instead, given that its Art 53 has so evidently been applied and interpreted e contrario, thus in reality losing its significance? At least that is what follows from a close reading of the judgment. A few words should also be said concerning its general implications for human rights within EU law. The ECJ states that the possibility for a national court to refuse extradition in a case such as this would spread doubt on ‘the uniformity of the standard of protection of fundamental rights as defined in that framework decision’ which would, consequently, undermine the principle of mutual recognition and ultimately the confidence between the legal systems of the Member States. But if this line of reasoning is to be followed, prison sentences for as long as 10 years rendered in the absence of the accused are generally to be accepted in the EU of today which is slightly surprising, to put it mildly. Having this in mind, it is quite surprising that the Melloni judgment hasn’t caused more debate in legal circles throughout Europe.

COMPARING MELLONI AND ÅKERBERG FRANSSON

The critical comments to some controversial parts of the Melloni judgment made above do of course also beg the question whether the two high-profile and simultaneous judgments in Melloni and Åkerberg Fransson are actually compatible. To put it in another way, does the ECJ here really speak with one voice? Any reader who is, like me, critical of the Melloni judgment will quickly find that this is simply not the case. Without going into details of the Åkerberg Fransson case—which should be known at least to the reader of this book—we quickly find that the ECJ here states (p 21) that (S)ince the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of European Union law without those fundamental rights being applicable. The applicability of

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Joakim Nergelius European Union law entails applicability of the fundamental rights guaranteed by the Charter.

Now, given that the ECJ in Melloni managed to find that the arrest warrant was compatible with the Charter on the point there in question, this statement is perhaps not outright contradictory to Melloni. But what about p 29 of Åkerberg Fransson, then? Here, the ECJ stated that where a court of a Member State is called upon to review whether fundamental rights are complied with by a national provision or measure which, in a situation where action of the Member States is not entirely determined by European Union law, implements the latter for the purposes of Article 51(1) of the Charter, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of European Union law are not thereby compromised.

Oddly enough, this statement is made with a reference to Melloni, but its content is indeed very hard to reconcile with the prohibition for the Spanish Constitutional Court to apply Art 24 of the Spanish Constitution which was established in that case. And this contradiction becomes even clearer when reading p 48 of Åkerberg Fransson, where the ECJ with a clear message to the Swedish Supreme Court, that had previously made some severe mistakes in its handling of ne bis in idem matters,7 stated that European Union law precludes a judicial practice which makes the obligation for a national court to disapply any provision contrary to a fundamental right guaranteed by the Charter conditional upon that infringement being clear from the text of the Charter or the case-law relating to it, since it withholds from the national court the power to assess fully, with, as the case may be, the cooperation of the Court of Justice, whether that provision is compatible with the Charter.

Thus, national courts must have the power to assess whether certain legal provisions are compatible with the CFR. In order to make such assessments, cooperation with the ECJ is sometimes necessary. But that cooperation, and the very basis of it, is, needless to say, undermined when the ECJ does not take the provisions of the Charter seriously. Therefore, the two simultaneous judgments of Melloni and Åkerberg Fransson have totally different implications. They point in different directions as far as the status of the Charter is concerned, Åkerberg Fransson increasing its status and impact in national law but Melloni in reality undermining it by protecting secondary EU law at any cost. Thus, reading and analyzing Melloni but also comparing it with Åkerberg Fransson, the shortcomings of the former, unfortunate judgment are indeed very clear.8 7 See the cases NJA 2010 p 168 and 2011 p 444, commented on in this volume by other writers. 8 It is however encouraging to note that the ECJ showed a far more human rights-friendly approach in its recent judgment on the Data Retention Directive (Joined Cases C-293/12 Digital Rights Ireland and C-594/12 Seitlinger and Others, Judgment 8 April 2014).

2 Accession of the EU to the ECHR: A Legally Complex Situation XAVIER GROUSSOT AND ERIC STAVEFELDT*

INTRODUCTION

T

HE PROTECTION OF fundamental rights has been subject to extensive scrutiny and development over the past 50 years. As the competences of the European Union expand, it has become increasingly relevant for the Union to address human rights issues. While the Member States are all party to the European Convention on Human Rights (ECHR), the Union has always remained outside the scope of the ECHR, despite various attempts to accede. This has led to inconsistencies in the interpretation and protection of human rights in the Union. After decades of discussion, the Lisbon Treaty has placed on the Union an obligation to accede to the ECHR and has given an explicit competence to the EU institutions to accede to this system. Nevertheless, the path is still quite long and full of obstacles before an accession to the ECHR. In that sense, it is well-known that the process of accession has been slowed down by some divergences among certain Member States of the European Union. More recently, certain non-EU Member States of the Council of Europe have also expressed strong concerns. The various hick-ups related to accession are in fact not surprising considering the complexity of the task. In essence, this daunting task can be summarized in the following query: how to preserve the specificity of the EU legal order when the principle of equality between the Contracting States of the ECHR is the overarching rule?1 The first section of this article traces back the origins and the difficult path followed *

Professor of EU Law, Lund University; Lund University. One thing remains sure, however, as put by Tulkens, ‘[t]he quality of the relationship between the European Convention of Human Rights and Union law will determine to a large extent the future of European law in general and the legal culture inspiring it’. See F Tulkens, ‘EU Accession to the European Convention of Human Rights’, Seminars on Human Rights for European Judicial Trainers, 9 October 2012, 12. 1

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Xavier Groussot and Eric Stavefeldt

by the EU to accede to the ECHR. Special attention is also given to the study of the different rationales used for adhering to the Convention (A Complex History). The second section focuses on the complex relationship between the two courts, ie the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU), in light, more specifically, of the Strasbourg case law and Article 52(3) of the EU Charter of Fundamental Rights (A Complex Relationship). Finally, the third section goes into the Draft Accession Agreement of 12–14 October 2011 and assesses the main reform proposed by the agreement in light, in particular, of the ‘sacrosanct’ specificity and autonomy of the EU legal order (A Complex Procedure).

A COMPLEX HISTORY

The Pre-Lisbon History Already in 1953, in its draft treaty establishing a European Community, the ad hoc assembly of the European Coal and Steel Community provided for the integration of the substantive provisions of the ECHR in the Treaty. Yet, the omission of a reference to fundamental rights in the ECSC and the EEC treaties was because, in the opinion of their authors, these were economic treaties with implications for the protection of fundamental rights. By contrast, when it came to founding a political community, the issue of protection of fundamental rights, returned to the forefront.2

In parallel to the debate on accession, it is well-known that protection of fundamental rights developed mainly through the case law on general principles of the Court of Justice.3 As a result of its unwritten and casuistic nature, the protection of fundamental rights in the European Union has often been a source of inconsistency.4 In 1979, the European Commission pointed out that accession was an important issue and the protection of fundamental rights ensured by the CJEU essentially have the same aim, ie the protection of a heritage of fundamental rights considered inalienable by those European States organized on a democratic basis. For the 2 JP Jacqué ‘The Accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms’ (2011) 48 Common Market Law Review 995. 3 See the Joint Declaration of the European Parliament, the Council and the Commission of 5 April 1977 [1977] OJ C103/1. This declaration indicates the importance of fundamental rights as part of the general principles of law recognized by the Communities and emphasizing the key role played by the ECHR. Initially, the protection of fundamental rights was believed to fall outside the scope of Union competences, and the ECJ refused to rule on that matter. 4 W van Gerven, ‘Towards a Coherent Constitutional System within the European Union’ (1996) 2 European Public Law 81, 98.

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Commission, ‘[t]he protection of this Western European heritage should ultimately be uniform and accordingly assigned, as regards the Community also, to those bodies set up specifically for this purpose’.5 A complete coherence of the system of fundamental rights protection in Europe can only be achieved by an accession of the EU institutions to the ECHR and the submission of the Union to the external control of the ECtHR. The political context of the Maastricht Treaty,6 as well as the increasing case law of the Court of Justice confirming the Union approach toward the ECHR as a ‘significant’ source of influence in elaborating fundamental rights through the doctrine of general principles of EU law, led to a debate initiated by the European Commission whether or not the Union should accede to the ECHR.7 The Council responded to this development by asking the Court of Justice for an Opinion, a possibility given by Article 218 of the Treaty on the Functioning of the European Union (TFEU) (ex Article 228 EC).8 The question to the Court was phrased as follows: ‘Would the accession of the European Community to the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 be compatible with the Treaty establishing the European Community?’ In its Opinion 2/94, the CJEU considered that, [s]uch a modification of the system for the protection of human rights in the Community, with equally fundamental institutional implications for the Community and for the Member States, would be of constitutional significance and would therefore be such as to go beyond the scope of Article [352]. It could be brought about only by way of treaty amendment.9

Thus, the power of the protection of fundamental rights through the general principles of Union law was preserved. Yet, the choice of this ‘status quo approach’10 did not lead to the decline of human rights protection in the EU. Conversely, an overview of the subsequent jurisprudence of the Court shows a large recognition of the ECHR jurisprudence and a great awareness

5 Commission Memorandum adopted on 4 April 1979, Supplement n° 2/79 to the Bulletin of the European Communities at 8–9. 6 Article F (2) [Article 6(2) TEU] codified the case law of the Court of Justice and incorporated a reference to the ECHR. However, the location of this Article in the Treaty on the European Union together with the limitations on the jurisdiction of the Court of Justice under Article L, avoided the incorporation of the ECHR by the back door. The Treaty of Amsterdam (Article 46(d) TEU) put an end to the limitation of jurisdiction of Article 6(2) TEU for the acts of the institutions. 7 See eg Case 222/84 Johnston [1986] ECR 1651. 8 Opinion 2/94 of the European Court of Justice, Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 28 March 1996. 9 ibid, para 35. 10 AG Toth, ‘The European Union and Human Rights: The Way Forward’ (1997) Common Market Law Review 491 et seq.

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in taking rights seriously.11 Accession was also favoured by the 1998 Comité des Sages Report12 and in 2000, by a resolution adopted on the 16th March, the European Parliament again urged the Intergovernmental Conference to give the Union authority to become a party to the ECHR. Subsequently, as the Lisbon Treaty entered into force thus through the instrument proposed by the CJEU in Opinion 2/94, a Treaty amendment, the debate over an accession to the ECHR came to an end. Yet there has been a strong restraint against the matter of accession due to the fact that it was once thought by the Court that a change to accession would constitute a fundamental constitutional change which could not legitimately be enforced unless the EU revised the founding Treaties of the Union. However, this argument appears to have given less cause for concern in recent years as Article 6(2) TEU now states that the Union ‘shall’ accede to the ECHR which implies that instead of it being debated further, the Union will be required to accede in the near future but not in a manner that will ‘affect the Union’s competences as defined in the Treaties’.

The Reasons for the Accession The obligation of accession can be regarded as a positive step in the development of a stable and solid system of human rights. As the Union has expanded in the past 50 years, it now has power over areas where human rights play a crucial and important role such as immigration and criminal justice and it could be successfully argued that it would make little sense for the law-making body to be exempt from the safeguards of the ECHR. It is also paradoxical to maintain that any state that wishes to join the European Union must agree to the provisions of the ECHR when the Union itself, as a body, is exempt from interference from the ECHR. Therefore, it can be said that accession is essential in helping to create a coherent human rights system as it would provide a minimum standard of human rights protection which would be uniformly applied across all Member States and therefore ensuring that there is consistent human rights protection within the Union. Some of the arguments for accession, for example, that the EU should accede because its Member States are Parties, or because it regards accession as a condition of membership of the EU, or because of its human rights policy in relation with third countries, can be regarded as weak arguments, as they do not touch on what ought to be the central question: whether

11 See X Groussot, General Principles of Community Law (Groningen, Europa Law Publishing, 2006), in particular Chapter 3. 12 The four wise women and men being A Cassese, C Lalumière, P Leuprecht and M Robinsson. See A Cassese et al, Leading By Example: A Human Rights Agenda for the European Union for the Year 2000 (Florence, EUI, 1998).

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accession strengthens the protection of human rights in the EU? In that sense, accession is also valuable for the Union as it means that the rights of individual citizens would be more closely protected. At the present moment, the Union is not sufficiently open to effective scrutiny from an external source and this situation thus creates uncertainty for individuals who would like to challenge an act of the European Union before the ECtHR. As a result, if the Union were to accede to the ECHR, a more transparent system would be put in place, allowing more accountability as they could be held liable by the ECtHR. Individuals would be able to bring cases against the Union at the ECtHR in Strasbourg, under the same circumstances as applications brought against national authorities.13 Through the establishment of a system of external control, the accession can send a strong signal concerning a high level of human rights protection in Europe and contribute to the harmonious development of the case law of the two European courts in this field.14 On the practical side, the accession will give competence to the ECHR to assess the compatibility with the ECHR of both the acts of the Member States falling within the scope of EU Law and acts of the EU institutions, eg Regulations or Directives. In that sense, accession will remedy the existing anomalous situation that someone who considers his human rights violated by an EU act must address his complaint before the ECtHR against a Member State and not directly against the Union.

The Conditions of the Accession Importantly, the accession to the ECHR should be put in the context of the necessary and ongoing procedural reform of the ECtHR. Although there are many practical issues which could arise as a result of the EU acceding, the House of Lords Committee was correct when it stated that we do not mislead ourselves in thinking that accession by the Union (and Committees) to the ECHR would be anything but politically and legally complex.

13 It would mean that citizens may feel more assured with regards to their human rights and they will have confidence in the knowledge that the EU is subject to an external scrutiny by an independent court in addition to being legally bound to protect their human rights as well as presenting a united front to all non-EU countries by having a credible human rights system. This is an important point as there has been a growing contradiction between the human rights commitments demanded from non-EU states, for instance in connection with development aid and association agreements and the lack of any external scrutiny whatsoever of the Union’s own actions. 14 P Alston and J Weiler, ‘An Ever Closer Union in Need of a Human Rights Policy’ in P Alston (ed), The EU and Human Rights (Oxford, Oxford University Press,1999) 3, 30.

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But we do not doubt that, given the political will, the legal and other skills can be found to overcome the difficulties.15

The Protocol 14—which has been opened for signature since May 2004 and entered into force on 1 June 2010—does not only provide a necessary procedural reform of the ECHR system but also allows for European Union accession to the Strasbourg Convention. It appears clear from the contents of Protocol 14 that the issues of procedural reform and accession are closely related. And it is in fact difficult to accept an accession without a deep reform of the ECHR system of remedies that allows for an effective respect of the right to a fair hearing in a reasonable time. As it is well-known, the ECtHR has delivered more than 10 000 judgments since its reform in November 1998 and the entry into force of Protocol 11. But problematically, the ECtHR had an enormous backlog of approximately 140 000 pending cases in 2011. The achievement of the procedural reform is a crucial parameter for the accession to the ECHR and its own success.16 Moreover, it appears clear that additional modifications to the ECHR will be necessary in order to make such accession possible from a legal and technical point of view. A number of legal, technical and institutional issues are still unresolved and have to be addressed in the mandate to be adopted under Article 218 TFEU as well as in the negotiations with the Council of Europe. This might be a difficult task since (the mandate of) the accession agreement should be approved by unanimity in the Union Council and ratified by all States of the Council of Europe. Also, it is of utmost importance that the mandate respects the specificity of the EU legal order as defined by Protocol 8 of the Lisbon Treaty. In conclusion, it should be emphasized that the negotiations were based on giving the same status as other Contracting Parties as far as possible, ie putting emphasis on the principle of equal treatment between Contracting Parties. This appears to be a difficult task particularly if we analyze the principle of equality in the light of specificity/autonomy of the EU legal order.

A COMPLEX RELATIONSHIP

The Pre-Lisbon Case Law The relationship between Union law and the ECHR has never been clear cut. This complex relationship is highlighted by case law pre Lisbon

15 Select Committee on the European Union, 8th Report EU Charter of Fundamental Rights (16 May 2000), para 142. 16 See speech by President L Wildhaber of the ECHR, during the third summit of the Council of Europe, 16–17 May 2005. See speech at the colloquy on future development of the ECHR in San Marino, on 22 March 2007, www.coe.int.

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Treaty, in particular the cases of Matthews17 and Bosphorus are of crucial importance in order to understand the nature and scope of the legal interaction.18 These cases also reflect the gap which has been created due to the Union not being party to the ECHR and demonstrate the importance of the EU being able to participate at all levels at the European Court of Human Rights in Strasbourg, which can only be achieved through accession. As things currently stand, only national measures falling within the scope of EU law are effectively subject to the jurisdiction of the Strasbourg Court, ie acts of the Member States derogating from EU law or implementing EU secondary legislation. It may also be worth mentioning that the ECtHR initially held that it lacked jurisdiction to examine proceedings before, or decision of, the organs of the EC as the EC is not a party to the ECHR19 before finally ruling on 18 February 1999, in the Matthews case,20 that it can review, in principle, national measures that apply or implement EU law. Yet the case law of the ECtHR has since demonstrated a high degree of deference to the extent that it exercises its control on the basis of the presumption that fundamental rights protection in the EU system can normally be considered to be ‘equivalent’ to that of the Convention system.21 Although this presumption can be rebutted on a case-by-case basis where it is shown that the protection of ECHR rights was manifestly deficient, the ‘Bosphorus test’, overall, provides a low threshold when compared to the usual standard of supervision the ECtHR normally exercises.

The Impact of the EUCFR and Lisbon Treaty on the Relationship The question of the accession to the ECHR has been much discussed during the EU Charter’s negotiation. The main reasons for acceding to the ECHR are to improve the uniform protection of fundamental rights by eliminating the detrimental conflicts of interpretation between the two Courts and rendering the ECtHR competent ratione personae to examine, as such and directly, the acts of the European institutions. With the entry into force of the Lisbon Treaty, Article 6(2) TEU put an obligation to accede to the ECHR and the Lisbon Treaty also renders the EU Charter of Fundamental Rights binding. It is important to stress that, until accession to the ECHR is formally realized, there is no direct review of acts of the Union institution before the ECtHR. It is evident that formally

17

Matthews v United Kingdom (App no 24833/94) (1999) ECHR 1999-I (‘Matthews’). Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland (App no 45036/98) (2006) 42 EHRR 1 (‘Bosphorus v Ireland’). 19 ECoHR Decision of 10 July 1978 on Application no 8030/77, Confédération française démocratique du travail v European Communities. 20 Matthews (n 17). 21 Bosphorus (n 18). 18

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speaking the ECHR is not binding on the EU.22 It is arguable, however, that in the present situation of negotiating the accession agreement to ECHR each court pays great attention to the jurisprudence of the other and thus appears motivated not to be the one providing a lesser standard. This assertion is also backed up by Article 52(3) of the EU Charter of Fundamental Rights (EUCFR) that creates a situation of ‘informal accession’. The cooperation between the courts is nevertheless not based on a legal duty to cooperate, but merely on comity.23 Thus, either court can unilaterally end this cooperation at any moment. An EU accession to the ECHR is therefore a desirable step in order to clarify the relationship and provide for a clear legal basis for the cooperation between the ECJ and the ECtHR. According to Article 52(3) of the Charter, [i]nsofar as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

Two key aims can be identified in this provision. First of all, this paragraph has the purpose to ensure consistency between the Charter and the ECHR by establishing the rule that, insofar as the rights in the present Charter also correspond to rights guaranteed by the ECHR, the meaning and scope of those rights, including authorized limitations, are the same as those laid down by the ECHR. As made clear by the explanations, the meaning and the scope of the guaranteed rights are determined not only by the text of those instruments, but also by the case law of the ECtHR and by the CJEU. This paragraph is essential in making sure that the Charter’s rights incorporate as a minimum the standards of the Convention. The level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR. Secondly, the last sentence of the paragraph is intended to allow the Union to guarantee more extensive protection. It is true that under Article 53 ECHR, the Strasbourg Convention constitutes a minimum standard of protection. It is also true that the Court of Justice in its prebinding Charter case law has sometimes taken a ‘maximalist’ approach of the ECHR rights.24 This approach must be praised since it has established a high standard of protection in Europe and has led to the cross-fertilization of the legal orders. Interestingly, the Court of Justice is now empowered very clearly to do so. Article 52(3) of the Charter may thus be said to 22 JP Costa, ‘The relationship between the ECHR and European Union Law—A Jurisprudential Dialogue between the European Court of Human Rights and the European Court of Justice’, lecture at King’s College London on 7 October 2008 (online). 23 T Lock, ‘The ECJ and the ECtHR: The Future Relationship between the Two European Courts’ (2009) 8 The Law and Practise of International Courts and Tribunals 375, 381. 24 See, eg, Case C-13/94 P v S and Cornwall County Council [1996] ECR I-2143.

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enhance the plurality of the European constitutional protection and, at the same time, safeguard the autonomy of Union law by allowing a higher level of protection. It is unfortunate, however, that the existence of Article 52(3) of the Charter does not entirely solve the relationship between the ECHR and EUCFR when it comes to corresponding rights. In fact, it resorts from the Åkerberg case25 of 26 February 2013 that the doctrine of corresponding rights remains extremely problematic in relation to the so-called peripheral ECHR rights, eg the ne bis in idem principle.26 In this case, the CJEU provided an autonomous interpretation of the ne bis in idem principle despite its obligation to follow the ECtHR case law under Article 52(3) of the Charter. In other words, it means that certain corresponding rights (the so-called peripheral rights) do not pertain to the scope of this Charter provision. This creates, once again, another complex relationship between the ECHR and the EUCFR. Moreover, it is contended that Article 52(3) EUCFR codifies the principle of equivalent protection developed in the Strasbourg regime.27 This doctrine of equivalent protection as developed by the European Commission of Human Rights (ECoHR) and ECtHR can be viewed as an instrument to maintain a peaceful relationship between the EU and ECHR legal orders.28 It is worth noting that, even before the entry into force of the Lisbon Treaty, the CJEU and its Advocates General have often stressed the equivalence of protection between the ECHR rights (including the corollary jurisprudence) and the Luxembourg case law.29 But what is the situation after the entry into force of the Lisbon Treaty? Is there any evolution or impact on the doctrine of equivalent protection? Indeed, this doctrine of equivalent protection is not static but evolutive as it resorts from the analysis of the ECHR case-law from CFDT to Bosphorus in passing by M & Co.30 As seen before,

25

Case C-617/10 Hans Åkerberg Fransson Judgment 26 February 2013, ECR 2013:105. In contrast to core rights, eg freedom of expression, that are accepted by all 47 States of the Council of Europe; the so-called peripheral rights are only accepted by States having signed a specific Protocol, eg Article 4 of Protocol 7 in relation to the ne bis in idem principle. 27 See EcoHR Decision of 9 February 1990 on Application no 13258/87, M & Co v Federal Republic of Germany. EcoHR Decision of 10 July 1978 on Application no 8030/77, Confédération française démocratique du travail v European Communities. 28 See P De Hert and F Korenica, ‘The Doctrine of Equivalent Protection: Its Life and Legitimacy Before and After the European Union’s Accession to the European Convention on Human Rights’ (2012) 13 German Law Journal 7, 889. 29 For example AG Mischo in Case C-94/00 Roquette Frères [2002] ECR I-9011, para 48; Case T-112/98 Mannesmannröhren-Werke AG v Commission [2001] ECR II-729; AG Mischo in Joined Cases C-20/00 and C-64/00 Booker Aquaculture and Hydro Seafood [2003] ECR I-7411 para 127. 30 M & Co (n 26). The doctine of equivalent protection can be used in relation to assessing the procedural admissibility of a request (eg CFDT) but also for assessing the material scope of a human rights violation based on general policies of the organization (eg M & Co) or based on the specific case (eg Bosphorus). See in general, P Popelier, C Van de Heyning and P Van 26

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the Bosphorus doctrine has brought uncertainty in the sense that it creates a low threshold of scrutiny in contrast with the threshold established in other contexts such as in the Saadi v UK case.31 In the 2009 Kokkelvisserij case,32 in which the Strasbourg Court reviewed EU primary law, Bosphorus has been confirmed by the ECtHR and the threshold for finding a human rights violation appears to be, therefore, significantly high.33 In the 2011 MSS case, which concerned the transfer of an asylum seeker from Belgium to Greece in June 2009, Greece being the Member State responsible within the meaning of EU Regulation No 343/2003 (the Dublin Regulation), the ECtHR discussed at length the Bosphorus case in a post Lisbon context related to the implementation of EU secondary legislation.34 In its ruling, the Strasbourg Court made clear that the application of the Bosphorus doctrine is intricately linked to the role and powers of the CJEU in offering an effective protection of fundamental rights. It also emphasized the limits of the Bosphorus judgment that was applicable at the time only to the ‘first pillar’ of European Union Law. In other words, the presumption of equivalence applied only to the fields of policy categorized as first pillar issues. This was not the situation in the MSS case where the State makes use of the derogation clause or sovereignty clause under Article 3(2) of the Dublin Regulation.35 As a result, the ECtHR applied a heightened standard of judicial scrutiny. It is worth noting that the CJEU in the NS case delivered in the same year as MSS relied extensively on the logic of the ECtHR.36 The CJEU ruled that the information cited by the ECtHR enables the Member States to assess the functioning of the asylum system in the Member State responsible, making it possible to evaluate the risks related to systematic violations of fundamental rights. The CJEU concluded that the Member States may not transfer an asylum seeker to the Member State responsible within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the EUCFR.37 The NS case is a perfect illustration of the cross-fertilization of the ECHR and EU legal order.

Nuffel (eds), Human Rights Protection in the European Legal Order: The Interaction between the European and the National Courts (Cambridge, Intersentia, 2011). 31

De Hert and Korenica (n 28) 889. Saadi v United Kingdom, Application no 13229/03. Kokkelvisserij v Netherlands (App no 13645/05) Decision of 20 January 2009. 33 See C Van de Heyning and R Lawson, ‘The EU as a Party to the European Convention of Human Rights’ 35 in P Popelier et al (n 30). 34 MSS v Belgium and Greece (App no 30696/09) 21 January 2011. 35 ibid para 339. 36 Joined cases C-411/10 NS and C-493/10 ME [2011] ECR I-13905. 37 ibid paras 91–94. 32

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Finally, it may be said that the MSS case shows that the Bosphorus logic and its doctrine of equivalent protection is still alive and kicking. The MSS judgment also establishes a clear link between the Matthews case (EU primary law) and the Bosphorus case (EU secondary law), and this in connection with the great importance attached to the role and powers of the CJEU within the circumstances of the case. If the CJEU cannot provide an effective standard of human rights protection then the doctrine of equivalent protection is not applicable and the ECtHR may apply a high standard of judicial review. The essential question remains whether the ECtHR will continue to apply the Bosphorus doctrine in the wake of accession of the EU to the ECHR. It is in no way certain that the ECtHR will abandon this doctrine and one may believe that the ECtHR will continue to uphold the doctrine of equivalent protection as a ratione materiae standard.38

Bosphorus after Accession EU accession to the ECHR may impact the Bosphorus approach. Indeed, the accession to the ECHR may put an end to the logic of ‘presumption of equivalence’ and ‘manifest deficiency’ coined by the Bosphorus case. The ECtHR’s deferential approach may be dropped or extended. Those in favour of abandoning this doctrine argue that it is important to avoid any double standard between the State parties to the ECHR and the EU. An extension of the Bosphorus approach’s scope of application would mean, by contrast, that EU regulations or Commission decisions, for instance, would be subject, similarly to national measures that strictly apply or implement EU law, to a low degree of judicial scrutiny in Strasbourg. This ‘specific feature’ of the ECJ’s jurisprudence explains, in part, why the ECtHR agreed to consider that the EU protects fundamental rights in a manner that can be considered equivalent to that for which the Convention provides and devises a ‘manifest deficiency test’ in the Bosphorus case, that is, a low standard of scrutiny for EU measures. The literature has been critical when it comes to the hands-off approach adopted by the ECtHR in Bosphorus concerning judicial scrutiny and clearly advocates for the rejection of the Bosphorus doctrine in the wake to the EU accession to the ECHR. It is true that if the main rationale of the Bosphorus case was based on the fact that the Union was not a party to the Convention then there is no reason to follow the Bosphorus doctrine after accession. Much of the criticism towards ‘the presumption of equivalence and the ‘manifest test’ echoed the doubts of the minority judges in Bosphorus. Four main objections to the presumption of equivalence can

38

De Hert and Korenica (n 28) 891.

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be distinguished. These objections are based on the so-called arguments of equality, proportionality, comity and uncertainty. The equality and proportionality objections were already reflected very strongly in the concurring opinions. The equality objection displays the danger of double standards which may be the consequence of the application of the presumption of innocence by the ECtHR. The proportionality objection mirrors the general and abstract manner in which the majority found equivalence and stigmatizes the lack of a substantive test of proportionality regarding the breach of the right to property as defined in Article 1 of Protocol 1 of the ECHR. The third type of objection is based on comity. This argument is founded on the disappearance of comity between the CJEU and the ECtHR after the accession. It is true that the present relationship between the two European courts is often described as based on the principles of cooperation and respect. But the accession will give the last word to the ECtHR regarding the interpretation of the ECHR rights in every situation. As to the uncertainty objection, it is argued here that the Bosphorus case is ambiguous as to the State actions that are exempted from full judicial review. Indeed, for the ECtHR, it seems that if equivalent protection is considered to be provided by the EU, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the EU. What is the exact scope of application of the presumption of equivalence? In light of these four objections, one should wonder whether the Bosphorus doctrine of presumption of equivalence should be dropped after accession.39 A positive answer is far from being certain due to one single element: specificity. In fact, most of the reasoning in Bosphorus is based on the specific nature of EU law, both with regard to the limited discretion to which the Member States have when applying and enforcing EU legislation and in establishing and justifying the presumption of compatibility with ECHR standards. The principle of equivalence—based on the rationale of transfer of powers/sovereignty—that lies at the heart of the doctrine of presumption will not disappear and will remain unaffected after the accession. This principle has further been reinforced by the existence of a binding Charter of Fundamental Rights since December 2009 and is now codified in its Article 52(3). Apparently, the presumption of equivalence reflects the specificity of the EU legal order as defined in Protocol 8 of the Lisbon Treaty. In any event, the accession agreement will probably be decisive for the Bosphorus approach in the future.

39 For a discussion, see S Douglas-Scott, ‘The European Union and Human Rights after the Treaty of Lisbon’ (2011) 11 Human Rights Law Review 4, 645–82. The author pinpoints the great complexity of EU accession and considers that the future of Bosphorus is difficult to predict.

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A COMPLEX PROCEDURE

The Draft Accession Agreement and the Autonomy/Specificity of the EU Legal Order Now that the Lisbon Treaty has enabled the Union to accede to the ECHR and given the strong legal and political impetus for accession, the main obstacle to be overcome with respect to accession is the exact practicalities of an accession agreement. After accession, the Union will be, for the very first time, under an external system of judicial review and could also eventually be held responsible for violations of the Convention. As we shall see, these changes may seriously impact on the autonomy of the EU legal order. To this end, Protocol No 8 relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms (‘Protocol No 8’) was annexed to the Lisbon Treaty so as to lessen such a threat. According to Article 1 of Protocol No 8, an accession agreement must preserve the ‘specific characteristics’ of Union law. While it is unclear what must be preserved by an accession agreement, the specific characteristics appear to be a reference to the autonomy of the Union’s legal order.40 Two aspects are of particular relevance when it comes to ensuring an accession which does not irremediably impair the autonomy of EU law: the issue of exclusive jurisdiction as to the application and interpretation of Union law (the judicial review issue); and the issue of distribution of powers between the Union and its Member States which is in fact crucial in order to situate where the alleged violation of the Convention occurred and thus allocate the responsibility (the responsibility issue). This section mainly aims at looking more closely at these not so unrelated matters. Before dealing with them, it is important to understand the meaning and scope of autonomy in Union law. This appears to be a long and well-established fundamental concept underlying the legal order of the Union which can be found both in primary law and the CJEU jurisprudence. The autonomy is particularly reflected by the exclusive competence of the CJEU ‘to ensure compliance with the law in the interpretation and application of the treaties’ (Article 19 TEU). The case law of the CJEU reflects both internal and external autonomy. While the early understandings of Union autonomy were mostly focused on the relationship between the Union and its Member States, for example as a basis for primacy and direct effect of Union law,41 the concept does

40 T Lock, ‘EU Accession to the ECHR: Implications for Judicial Review in Strasbourg’ (2010) 35 European Law Review 777, 781. 41 See especially Case 6/64 Costa v Ente Nazionale per l’Energia Elettrica (ENEL) [1964] ECR 585. Flowing from this, the CJEU also derived the principle of supremacy. Combined, these two core concepts form the foundation for a distinct and autonomous legal order.

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encompass several external aspects reflecting the relationship between the EU legal order and international law.42 As expressed by Halberstam and Stein, the ‘internal dimension of European constitutionalism is only half the promise of an autonomous legal order’.43 ‘Interpretative autonomy’ signifies that only the institutions of the Union legal order are competent to interpret the constitutional and legal rules of that order. This exclusivity of interpretation was clearly recognized by the Court of Justice in its Opinion 1/91 on the EEA Agreement.44 In that sense, the first EEA agreement was not compatible with the Treaty since it allowed the Court of the EEA to decide on the distribution of competences between the Union and its Member States—[respect for which must be assured exclusively by the Court of Justice pursuant to Article 164 of the EEC Treaty (new 19 TEU)]—and [that it would] lead the EEA Court to interpret Union law in conflict with ex Article 164 EEC Treaty (220 EC and new 19 TEU).45 In a similar vein, in Opinion 1/92, which concerned a revised version of the Draft Agreement on the EEA, the ECJ emphasized the importance of a provision which stated that the Court of Justice was not to be bound by the case law of the dispute settlement body provided for in the international agreement, as an ‘essential safeguard which is indispensable for the autonomy of the [EU] legal order’.46 Also, in Opinion 1/09 on the Draft Agreement on the European Union Patent Court, the CJEU declared the Draft Agreement to be incompatible with the Treaties because of insufficient guarantees for the involvement of the CJEU as to the interpretation of EU law.47 In Kadi the CJEU considered that not only does the autonomy of EU law impede an international agreement from affecting the allocation of powers within the EU and the exclusive competence of the Court of Justice, but an agreement must also not have the effect of prejudicing the constitutional principles of the Treaty, which include respect for fundamental rights.48 This statement, therefore, links the autonomy of EU law together with the hierarchy of norms, with primary law taking priority over Union agreements and secondary law. From this case law one can conclude that an accession agreement (as an international agreement) must not affect the essential powers of the EU’s institutions and the ECtHR must not be given jurisdiction to interpret the Treaties in a binding fashion and decide on

42 T Lock, ‘Walking on a Tightrope: The Draft ECHR Accession Agreement and the Autonomy of the EU Legal Order’ (2011) 48 Common Market Law Review 1025, 1029. 43 D Halberstam and E Stein, ‘The United Nations, the European Union, and the King of Sweden: Economic Sanctions and Individual Rights in a Plural World Order’ (2009) 46 Common Market Law Review 13, 62. 44 Opinion 1/91 EEA, 14 December 1991 [1991] ECR I-6079. 45 ibid paras 34–35 and paras 44–46. 46 Opinion 1/92 [1992] ECR I-2825 para 24. 47 Opinion 1/09 [2011] ECR I-1137. 48 Cases 402/05 P & 415/05 P Kadi [2008] ECR I-6351 paras 283–85.

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the division of competence instead of the CJEU.49 Therefore, agreeing on a mandate of accession to ECHR is not an easy task. This is particularly true in relation to the participation of the Union in the control bodies of the European Convention but also with regard to the mechanism necessary that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the Union.

Incorporating the Co-Defendant Model as a System of Shared Responsibility As established by the CJEU in its Opinions on international agreements, the division of responsiblity between the Union and its Member States may be assessed only by the Court of Justice. The co-defendent mechanism which implements a system of shared responsibility is supposed to solve this dilemma. This ‘voluntary based mechanism’ allows the Union or a Member State [at its own request and by decision of the ECtHR] to join the proceedings as ‘co-defendant’ [with the status as party to the case] alongside the addressee of the individual application at the admissibility stage. More precisely, the mechanism prescribed by Article 3 (ex Article 4) of the Draft Accession Agreement allows the EU to become a co-defendant to cases in which the applicant has directed an application only against one or more EU Member States. Likewise, the mechanism would allow the EU Member States to become co-defendants to cases in which the applicant has directed an application only against the EU. Where an application is directed against both the EU and an EU Member State, the mechanism would also be applied if the EU or its Member State was not the party that acted or omitted to act in respect of the applicant, but was instead the party that provided the legal basis for that act or omission. In this case, the co-defendant mechanism would allow the application not to be declared inadmissible in respect of that party on the basis that it is incompatible ratione personae. Entitling the Union’s involvement as co-defendant would acknowledge the Union as a separate legal entity and respect the specificities of the Union legal order and respect the exclusivity of the CJEU’s jurisdiction, by precluding the ECtHR from interpreting the Treaties and making decisions regarding competences (see Article 3(6) prior control). Moreover, the involvement of the Union in proceedings would arguably further support the execution of a judgment, and enhance cooperation of the Union in terms of enforcement, to ensure that human rights are respected and

49

T Lock (n 40).

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observed in the international community.50 Such an arrangement would have the advantage of ensuring that the final judgment will be directly enforceable against both defendants, without the Strasbourg Court having to make any ruling on the allocation of competences between the Union and the Member State in question. Overall, this system would certainly improve the effective protection of fundamental rights in cases involving EU law. If the EU becomes a co-respondent in addition to the original responding Member State, the res judicata of the judgment would be extended to the European Union.51 In this sense, this system may benefit the applicant as it helps to remove the violation.52 During the negotiations of the accession agreement, it was suggested that the Union should be obliged to join a case involving Union law as a codefendant alongside the Member State. Nevertheless, obliging the Union to join as co-defendant may be viewed as prejudging the liability of the Union. This would be contrary to the rights of the defense and the Convention itself. A more suitable proposal is a procedure where the Union may seek leave to join as a co-defendant. The granting of leave to join as co-defendant could be given merely based on arguments of proper administration of justice rather than considering substantive arguments of responsibility. This would avoid accusations of prejudgement, while enabling the Union to participate as co-defendant. Much criticism has been raised against the co-respondent system. This criticism was mainly founded on its complexity, the risk of an abuse of the procedure [its voluntary nature] and the creation of an unfavourable position for the applicant. It is true that the joining of a co-respondent may affect the applicant in many ways. For example, it may affect the prospect of a friendly settlement; it may delay the process of the case before the Court; and following judgment it may complicate or delay the execution process. In that sense, the non-governmental organizations strongly emphasized during the negotiations, that if the mechanism had to be put into force it should however be limited. It is worth noting that the memorandum regarding the June Draft highlighted that, ‘[o]n the basis of the relevant case law of the Court, it can be expected that such a mechanism may be applied only in a limited number of cases’.53 However, as observed by Eckes, that expectation may be somewhat of a low estimate.54 50 These arguments are also applicable to Member States, where the case is brought against the Union. Accordingly, the procedure should also be available for the Member State to join as co-defendant. 51 T Lock (n 40) 786. 52 See X Groussot, T Lock and L Pech, ‘EU Accession to the European Convention on Human Rights: A Legal Assessment of the Draft Accession Agreement of 14th October 2011’, Foundation Robert Schuman, Policy Paper European Issues no 218, 2011, at www.robertschuman.eu/doc/questions_europe/qe-218-en.pdf, 13. 53 Memorandum regarding the June Draft Accession Agreement, para 44. 54 C Eckes, ‘EU Accession to the ECHR: Between Autonomy and Adaptation’ (2013) 76 Modern Law Review 254–85, 267.

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In addition, some Member States have criticized the current state of affairs concerning the co-respondent mechanism. For example, Germany considers that inviting the EU to submit observations in accordance with Article 36(1) of the Convention would be more appropriate. Some have also argued that the co-respondent procedure could be abused. However, it is unlikely that such a procedure could be abused since Article 4(3) TFEU, which incorporates the duty of loyalty, prevents Member States from unnecessarily joining the Union to proceedings irrelevant to it. Even without relying on the duty of loyalty, it would be an abuse of process if Member States sought to join the Union in unrelated matters. Finally, it is still rather unclear whether in case of a violation the co-defendant will be equally bound by that finding and whether it is then for the Union to decide who the real perpetrator of the violation is. The simple road here and the one we recommend is to retain joint responsibility in all cases where corespondents are involved.55 Furthermore, the fact that the ECtHR would not have the power to oblige either the EU or the Member States to join proceedings as co-respondent have met with criticism both in doctrine56 and, more importantly, from all the non-EU Member States to the Convention (NEUMS). Arguing that an optional co-respondent mechanism ‘might lead to gaps in participation and, consequently, to lack of accountability and enforceability in the ECHR system’,57 the critics of the current draft suggest that a voluntary mechanism runs counter to the very interests it purports to support.58

Validity of EU Law and Prior Involvement of the CJEU After accession, the system of external review can conflict with the principle of autonomy of EU law and the established CJEU case law. The CJEU alone holds a monopoly over the interpretation and application of the Treaties and is the sole arbiter charged with determining the division of competences between Member States and the Union. The CJEU alone has the power to declare an act of the Union invalid.59 Yet the accession to ECHR could undermine the autonomy of EU law since a national court requested to raise the question may adopt a final decision without having requested

55

JP Jacqué (n 2) 1015. See T Lock, ‘End of an Epic? The Draft Agreement on the EU’s Accession to the ECHR’ (2012) 31 Yearbook of European Law 1, 162–97. 57 Common Paper of Andorra, Armenia, Azerbaijan, Bosnia-Herzegovina, Iceland, Liechtenstein, Monaco, Montenegro, Norway, Serbia, Switzerland, Russian Federation, Turkey and Ukraine on Major Concerns Regarding the Draft Revised Agreement on the Accession of the European Union to the European Convention on Human Rights, 47+1(2013)003. 58 See T Lock (n 56). 59 Case 314/85 Foto-Frost [1987] ECR 4199. 56

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a preliminary ruling, meaning that no further intervention of the ECJ is needed and that the ECtHR can review the compatibility of EU legislation. The CJEU stated in a working document in 2010 that a development where the ECtHR is being called on to decide on the conformity of a Union act with the ECHR without giving the CJEU a prior opportunity to rule on the case would be undesirable.60 Naturally, the CJEU wished to maintain its monopoly concerning the declaration of invalid acts of the Union. It is however important to remember that the ECtHR will never be given the power to declare a Union act void, but rather to establish its incompatibility with the ECHR.61 It is true that the ECtHR only produces so-called ‘declaratory judgments’. It may be said that the problem of prior involvement only arises when the invalidity of the act for non-observance of rights guaranteed by the Convention is invoked before a national court and the national court does not rely on the preliminary ruling procedure under Article 267 TFEU. For such a case, there is a need of a mechanism involving the CJEU after proceedings before the ECtHR have been investigated in order to avoid infringing the autonomy of the EU legal order (joint communication of the ECJ and ECtHR). A formal mechanism appears to be necessary in the situation where an informal mechanism based on the ‘exhaustion’ of the preliminary ruling is superfluous. The complexity of the issue may be illustrated by the many different types of formal mechanisms that have been advocated during the accession negotiations: — Preliminary Ruling by ECtHR to the CJEU (Badinter proposal).62 — Involvement of the CJEU by means of an Opinion (CDDH-UE (2011)). — A Right of the Commission to investigate proceedings before the CJEU (Timmermans proposal).63 — A Right of the Advocate General to investigate proceedings before the CJEU (Jacqué proposal).64 — Preliminary Ruling from the CJEU to the ECtHR.65 — Obligation on national court to use Article 267 TFEU (avoiding a formal mechanism).

60 See Discussion document of the Court of Justice of the European Union on certain aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 5/05/2010. 61 Decision of 24 April 1990 on Kruslin v France (App no 11801/85) and Decision of 9 October 2003 on Slivenko v Latvia (App no 48321/99). 62 French Senate, Communication of Mr Robert Badinter on Negotiation Mandate (E 5248) 25 May 2010, at www.senat.fr/europe. 63 Judge Timmermans, hearing at European Parliament’s Committee on Constitutional Affairs on 18 March 2010, available at www.europarl.europa.eu/activities/committees/hearings. 64 JP Jacqué (n 2) 1021. 65 See also, Steering Committee for Human Rights (CDDH) on Technical and Legal Issues of a Possible EC/EU Accession to the European Convention on Human Rights (2002)010 Addendum ii, paras 75–77.

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While each suggestion may have its own merits and flaws, common to all is the inherent issues of prolonged proceedings, the excessive demand on an individual the involvement of the CJEU could constitute during the process of accessing the Strasbourg Court and the unavoidable clash between the issue of prior involvement and the principle of equality of the Contracting States to the ECHR—none of the national constitutional courts hold the same privilege as the CJEU would have with the establishment of a prior involvement mechanism.66 Notably, on 24 January 2011, the Presidents of both the CJEU and ECtHR agreed on the need for such a mechanism. At this stage, Article 3(6) [ex 4(6)] of the draft agreement stipulates the introduction of such a mechanism,67 but remains silent on the exact modalities of the procedure. Apparently, the prior involvement of the CJEU will not affect the powers and jurisdiction of the ECtHR since the assessment of the CJEU will not bind the ECtHR. In order not to unduly delay the proceedings before the Court, the EU shall ensure that the ruling is delivered quickly. In this regard, as emphasized in the meeting report, an accelerated procedure before the CJEU already exists and that the CJEU has been able to give rulings under that procedure within six to eight months. Article 3(6) does not give any information as to how the review is to be initiated. As pointed out by Lock, ‘if the draft provided a specific procedure, this would potentially involve a hidden Treaty amendment’ and thus may jeopardize the autonomy of EU law. Therefore, the determination of the procedure has been delegated to the European Union.68 It is worth stressing here that two members of the informal working group have reserved their position as to the introduction of a prior involvement by the CJEU.69 Furthermore, during the last meeting of the 47+1 group, in January 2013, all the NEUMS of the working group expressed in a common position that the introduction of a prior involvement by the CJEU was an issue of major concern that ‘needs further consideration and should be seen in the wider context of derogations from the principle of equal footing’.70

66

C Eckes (n 54) 268. ‘[i]n proceedings to which the European Union is co-respondent, if the Court of Justice of the European Union has not yet assessed the compatibility with the Convention rights at issue of the provision of European Union law as under paragraph 2 of this Article, then sufficient time shall be afforded for the Court of Justice of the European Union to make such an assessment and thereafter for the parties to make observations to the Court. […] The European Union shall ensure that such assessment is made quickly so that the proceedings before the Court are not unduly delayed. The provisions of this paragraph shall not affect the powers of the Court’. 68 T Lock (n 42) 1049. 69 CDDH-UE (2011) 10. 70 Common Paper of Andorra, Armenia, Azerbaijan, Bosnia-Herzegovina, Iceland, Liechtenstein, Monaco, Montenegro, Norway, Serbia, Switzerland, Russian Federation, Turkey and Ukraine on Major Concerns Regarding the Draft Revised Agreement on the Accession of the European Union to the European Convention on Human Rights (n 57). 67

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Given the fundamental character of the concept of autonomy to the functioning of the Union legal order, it is arguable that this aspect is what the drafters had in mind when stipulating that the ‘specific characteristics’ of the Union were to be preserved. Hence, Protocol No 8 perhaps dictates an accession agreement that preserves the autonomy of the Union and the exclusive jurisdiction of the CJEU over Union and Member States’ acts that fall within Union law. With this limitation imposed by Protocol No 8, the exact practicalities of a workable accession agreement are unclear. The principle of autonomy reflects the specificity of EU law and is closely linked to the role and place of the Court of Justice. ‘Interpretative autonomy’ signifies that only the institutions of the particular legal order are competent to interpret the constitutional and legal rules of that order. This exclusivity of interpretation was clearly recognized by the Court of Justice in its Opinion 1/91 on the EEA Agreement.71 Yet it is perhaps exaggerated to consider that the accession jeopardizes the interpretative autonomy of the Court of Justice. Indeed, it results from a constant case law of the ECtHR that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law. More specifically, it is not for the ECtHR to rule on the validity of national law in the hierarchy of domestic legislation. The ECtHR has also made clear that the same reasoning is applicable to international Treaties, and in this respect it is not for the Strasbourg Court to substitute its own judgment for that of the domestic authorities. In contrast to the Court of Justice, the ECtHR cannot annul an act of the European Union but merely rule on its compatibility with the Convention. It is particularly important that the accession agreement is careful to not affect the authority of the CJEU. This is the reason why one has suggested the adoption of a specific mechanism whereby prior CJEU intervention would be made compulsory before any ruling of the ECtHR. Such a system, however, will lead to additional delays for the parties and would raise the risk of open conflict between the two European courts. Furthermore, it seems that any such mechanism would put the EU in a primus inter partes position which would be hard to reconcile with the principle of equality of the Contracting States to the ECHR.

CONCLUSION

The most recent developments concerning accession to the ECHR confirms the position taken in this article as to the complexity of the mechanism of accession. The Draft Accession Agreement respects without any doubt the specificity of the EU legal order. Suffice it to look at the co-respondent

71

Opinion 1/91 EEA (n 44).

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mechanism and the prior involvement procedure which lie at the heart of the Draft Accession Agreement. But problematically, the respect of the specificity of EU law damages the principle of equality of the Contracting State to the ECHR. It seems that equality cannot be fully respected by the process of accession to the ECHR. In fact, this process leaves us with the impression that privileges are granted to the European Union. Without equality, the legitimacy of the whole process of accession is undermined.72 This is the paradox of a European human rights system of protection based on accession to ECHR. In that respect, the NEUMS have shown reluctance to an optional co-respondent mechanism and the introduction of a prior involvement by the CJEU. During the last meeting of the 47+1 group, in January 2013, all the NEUMS of the working group expressed in a common position that the introduction of a prior involvement by the CJEU was an issue of major concern that ‘needs further consideration and should be seen in the wider context of derogations from the principle of equal footing’.73 In the end, it appears to us that the system created for acceding to the ECHR is very complex. As rightly put by Douglas-Scott, the Draft Accession Agreement has mostly increased ‘complexity rather than human rights protection itself’.74 Therefore, one legitimate question is whether accession to ECHR is truly beneficial to the European citizen in terms of effective judicial protection.

72 On the other hand, it could be argued that equality is not a binding rule and that the EU is not a State but an international organization in order to minimize the clear legitimacy encroachment, F Tulkens (n 1) 8. 73 See supra n 58. 74 S Douglas-Scott (n 39).

3 Certain Points of View with Regard to the Accession of the EU to the Convention from the Perspective of the Court of Justice of the European Union PERNILLA LINDH*

T

HE SWEDISH NETWORK for European Legal Studies organized a seminar on EU accession to the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR) in November 2012. I made a speech at the seminar about this from the perspective of the Court of Justice of the European Union (Court of Justice). A brief abstract of this speech was published in the second issue of Europarättslig Tidskrift (Journal of European Law), 2013. As time has passed since then, some short remarks about the current Draft Accession Agreement have here been included. When we speak of accession from the perspective of the Court of Justice of the European Union it is necessary to point out that the Court of Justice has applied and taken human rights and fundamental rights into consideration for over 50 years. The Stauder case (Case 29/69) from the late 1960s is usually put forward as the point of departure. This was the first time that the Court of Justice admitted that human rights are encompassed by the general principles of the Community, principles that the Court must take into account and uphold. The judgment was followed by other landmark cases where the Court of Justice developed and refined its position and it also acknowledged the special position of the European Convention. The Charter of Fundamental Rights (the Charter) was drawn up in Nice in 2000 as a legally non-binding document, but worded in such a way that with time it could become a legally binding text. This is now the case through the Lisbon Treaty which has also endued the Charter the status of primary law. *

Former Judge at the Court of the European Union.

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The Charter confirms and codifies the rights whose roots particularly lie in the common constitutional traditions and international obligations of the Member States, the European Convention, the Social Charters of the EU and the Council of Europe, as well as case law from Luxemburg and Strasbourg. The Charter thus has a broader scope than the Convention. Moreover, Article 6.3 of the Treaty on European Union retains the idea that the fundamental freedoms as they are guaranteed in the European Convention and as they result from the common constitutional traditions of the Member States, shall be included in European Union law as general principles. The provision should primarily be regarded as a safety net, since it ensures that the Court of Justice also in the future can avail itself of other sources to acknowledge fundamental rights that are not codified in the Charter. The new status of the Charter provided by the Lisbon Treaty can be regarded as a welcome reform as the Charter can be said to enhance the legal protection of the individual as well as the legal certainty. The rights have become more visible to make it easier for individuals to invoke them and for authorities to apply them in a more coherent and efficient way. Moreover, the rights are invoked to a greater extent before the Court of Justice and the Court has also in certain cases on its own initiative examined whether the Charter constitutes an obstacle to national legislation which entails the implementation of European Union law. The Court has thus referred to the Charter in a fairly large number of cases; not least in the areas of justice, freedom and security (eg the right to family life and asylum), but also in cases which have had to do with collective industrial action, competition and the right to effective legal remedies, eg the right to an impartial trial. It is important to stress that the Charter does not extend the powers of the Union. It only applies as far as EU law is relevant in the context. This is expressed in Article 51 of the Charter which stipulates that the provisions are addressed to the institutions, bodies, offices and agencies of the Union as well as to Member States when they are implementing EU law. The Charter also provides that rights that correspond to those that are guaranteed by the European Convention shall have the same meaning and scope as the rights in the Convention. The Charter shall also be applied taking due regard of the explanations issued in conjunction with the Charter; suggesting that as far as the wording of the Charter corresponds with that of the European Convention, the provisions shall be interpreted and applied in the same way. Thus it is no longer a matter of achieving an equivalent protection, the protection should be identical. EU accession to the European Convention, which became a legal obligation through Article 6.2 of the Lisbon Treaty, is seen as an important step in the development of the protection of human rights in Europe. The aim

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is to enhance the cohesion of this protection by consolidating participation, responsibility and enforcement within the framework of the Convention. The European Union is thus integrated through accession to a system where human rights and fundamental freedoms are guaranteed via the Convention thus bringing about an external control outside the EU. The negotiations have been ongoing for a couple of years.1 As regards accession, Article 6 of the Treaty on European Union and Protocol No 8 include two limitations. The former stipulates that accession shall not extend the powers of the EU as they are defined in the Treaties, while the latter stipulates that the accession agreement shall reflect the importance of preserving the specific characteristics of the EU and of EU law. In that light and bearing in mind that it is not impossible that a question may be put to the European Court to determine the conformity of an EU act with the Convention if the Court of Justice has not decided on the matter, and also in particular in light of the fact that it is only the Court of Justice that can declare an EU act invalid, the Court published a discussion document in May 2010. Here the Court underlined that it is important to avoid a situation where the European Court is called on to decide on the conformity of an act of the Union with the Convention without the Court of Justice first having had an opportunity to give a definitive ruling on the point. The working group within the Council of Europe which has negotiated accession together with the European Commission annexed a draft accession agreement to their final report dated April 2013. The draft has, in accordance with Article 218 (11), been referred to the Court of Justice for an opinion regarding its conformity with the Treaties. If the Court finds that it does not conform, an agreement in accordance with the draft cannot come into effect, unless either the draft or the Treaties are amended. It is naturally impossible to predict when the Court of Justice will issue its opinion, and even less the content thereof. An agreement must also be accompanied by enforcement regulations of different kinds, not least on how an agreement shall be implemented internally by the EU and its Member States. Approval shall be granted by the European Council and the European Parliament after the Court has issued its opinion, and shall finally be adopted by the Committee of Ministers of the Council of Europe before a ratification process can be initiated.

1 For an overview on these negotiations see Erik Wennerström’s article in the previous issue: ‘EU Accession to the European Convention on Human Rights—the Creation of a European Legal Space for Human Rights or the Last Stand for the Normative Supremacy of the Strasbourg System’ 375.

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Some questions that have been debated in a number of articles2 are questions that have to do with the fact that all the rights in the Convention as well as the Charter are not absolute. The European Court also accepts a certain room for manoeuvre for the member countries and for its part, the Court of Justice must in certain situations weigh different rights against each other; not just different fundamental rights where perhaps just one is subject to the European Convention, but also fundamental rights against fundamental freedoms in accordance with the Treaty on the Functioning of the European Union, for example, the freedom of movement of goods and services. The extent to which the balance will weigh in favour of the fundamental rights in accordance with the European Convention in the future, can only be determined by future case law. Another issue which is worth highlighting is pertinent to the area of justice, freedom and security. The Union constitutes a unit and the regulatory framework—framework decisions or regulations—are often based on mutual recognition where regulations in one Member State are more or less automatically accepted by another unless there are special grounds to refuse to do so. The point of departure is naturally that regulations within the EU are equivalent and the acceptance of this state of affairs is based on trust between countries. In this way areas requiring speedy management can be handled efficiently and quickly. The following are examples of this type of regulations: the European Arrest Warrant,3 the Dublin Regulation on asylum issues4 and Brussels II Regulation on the recognition and enforcement of judgements in the area of private law.5 The judgement of the Court of Justice in the NS and ME cases (C-411/10 and C-493/10) from 2011 regarding the application of the Dublin Regulation can be used to illustrate the possible tension between EU law and the European Convention. The judgement dealt with whether the applications of asylum, which should have been tried in Greece, of people who managed to take themselves from Greece to Ireland and the UK, should be transferred to Greece despite deficiencies in the asylum system there and the reception conditions.

2 Allan Rosas, ‘Balancing Fundamental Rights in European Union Law’ (2012); Lars Bay Larsen, ‘Some Reflections on Mutual Recognition in the Area of Freedom, Security and Justice’ and Siofra O’Leary, ‘The Charter and the Future Contours of EU Social and Employment Law’ in Cardonnel, Rosas and Wahl (eds), Constitutionalising the EU Judicial System. 3 2002/584/JHA; The Council Framework Decision of 13th June 2002 on the European arrest warrant and the surrender procedures between Member States. 4 Council Regulation (EC) nr 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national. 5 Council regulation (EC) nr 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility.

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The Court of Justice ruled that while a Member State has the right but not the obligation to transfer an asylum seeker to the first country, this shall not be done if the country where the asylum seeker in question is cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter. Even if this position was entirely in line with a decision by the European Court of Human Rights in the same year, problems may arise for a wellfunctioning system in the EU in the area of justice, freedom and security, based on mutual recognition, if the European Court of Human Rights in another case lowers the bar and arrives at the conclusion that also smaller systemic deficiencies in a Member State can lead to a prohibition from transferring asylum seekers to that Member State. In one example from the European Court, the Sneersone and Kampanella case 14737/09, judgment from 12 July 2011, illustrates the problem, the European Court criticized an Italian court’s decision regarding the transfer of a child to Latvia. In the European Court’s view this was erroneous due to the respect for family life. In actual fact, the Italian court had only applied the Brussels II Regulation in accordance with the statutory practice of the European Court of Justice which is also based on mutual recognition in this area. These types of questions will in all probability be topical after accession; perhaps not only at court level but also within the legislative assemblies. The European Court and the Court of Justice of the European Union have had regular discussions on practice for a number of years now. There is every reason to presume that these discussions will be intensified in the near future. Naturally, it is hoped that different problems will find their solution in that forum.

4 The Legal Framework of the EU’s Human Rights Strategy ANDREAS MOBERG*

EU FOREIGN POLICY AND HUMAN RIGHTS

E

VER SINCE ITS inception, the European Union (the EU) has aspired to promote human rights and democracy throughout the world. In fact, promotion of these values has always been one of the objectives, or aims, of what is usually labelled EU foreign policy.1 However, EU promotion of human rights suffers from the effects of the tension between centralization and decentralization of the powers necessary to conduct a foreign policy. With the Treaty of Lisbon, the EU was endowed with legal personality. One of the reasons behind this change was to ease this tension through making the EU a more distinct actor on the international scene.2 However, the tension between the Member States and the EU was not eradicated through the Treaty of Lisbon. In this chapter I will use the EU Strategic Framework and Action Plan on Human Rights and Democracy, adopted in 2012, to illustrate that the tension is still prominent within the EU and how this fact limits the prospects of an EU foreign policy on human rights. Notwithstanding these constraints, the Council of the European Union (the Council) did adopt the above mentioned framework, and thus clearly

* PhD Public International Law, Department of Law, School of Business, Economics and Law, University of Gothenburg. 1 Article J.1 TEU (Maastricht), Article 11 (Amsterdam) and Articles 3(5) and 21 TEU (Lisbon). 2 Up until then, a formalistic interpretation of the Treaties would always result in the conclusion that the EU was not a subject of public international law and hence hardly an actor—in its own right—in global policy. Many would argue that this interpretation is too formalistic, but I will not take a normative stance on this subject at this stage. The point I wish to make here is simply that there was no subject of international law called the EU before the changes brought by the Treaty of Lisbon. Naturally, the Member States have managed to work around this lack of legal personality, when there has been consensus to do so.

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considers that EU foreign policy on human rights and democracy is in need of operative guidelines. In this chapter, the EU Strategic Framework and Action Plan on Human Rights and Democracy is analyzed from two perspectives: ‘Who acts?’ and ‘Are the actions allowed under the EU Treaties?’. The analysis aims at illustrating that the EU still cannot conduct a fully-fledged foreign policy on human rights on its own, without the assistance of the Member States.

43 Years of Tension between Centralization and De-centralization of Foreign Policy EU foreign policy has always been subject to debate on the extent to which the sovereign Member States should transfer power over matters of foreign policy to the Union. The first attempt to create a framework for EU foreign policy3 was the establishment of the European Political Cooperation (EPC) in 1970.4 However, although the EPC was kept separated from the EEC on a strictly intergovernmental level the coming of age of the EPC,5 via the Common Foreign and Security Policy (CFSP) and Common Security and Defence Policy (CSDP), meant that the clear separation gradually became more opaque. ‘EU’ foreign policy today is a mix of actions taken by the EU institutions and actions taken by the governments of the EU Member States. The idea to promote human rights and democratic principles has been on the Union’s foreign policy agenda for at least three, if not four or more, decades. On April 5, 1977, the European Parliament, the Council and the Commission issued a joint declaration stressing the importance of protecting and respecting fundamental rights in ‘the exercise of their powers and pursuance of the aims of the European Communities’.6 The Declaration should be seen in the context of EEC development cooperation under the Lomé (I) Convention, where the consequences of Idi Amin’s rule in Uganda, a recipient of EEC financial support under the Convention, had caused the

3 Although not entirely correct from a historic perspective, I will allow myself the license to use today’s concepts even though the European Union did not exist as such in 1970. 4 When Charles de Gaulle left office in 1969, the climate for discussion on a common EEC foreign policy got significantly warmer. The political directors of the six foreign ministers drafted what has been labelled the Davignon report (also known as the Luxemburg report) which became the starting point of the EPC. On these negotiations, and on the EPC in general, see Michael E Smith, Europe’s Foreign and Security Policy (Cambridge, Cambridge University Press, 2004). 5 The EPC was formally linked to the EEC with the entry into force of the Single European Act (SEA) in 1987. See Article 30 (33) A, SEA [1987] OJ L169/1. 6 Joint Declaration by the European Parliament, the Council and the Commission concerning the protection of fundamental rights and the European Convention of Human Rights and Fundamental Freedoms [1977] OJ C103/1.

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European public to raise serious concerns which emanated in the Council’s issuing of the so called ‘Uganda guidelines’ in June 1977.7 The effect of the ‘Uganda guidelines’ was that EEC development cooperation to Uganda was suspended because of the Ugandan Government’s violations of human rights. This is the first clear-cut example of an EEC foreign policy action based on what could be labelled human rights strategy. In July 1986, the Foreign Ministers of the then 12 governments of the Member States of the EEC, meeting in the framework of the EPC and of the Council,8 issued a statement on human rights. The statement elaborates on the importance of respect for human rights in international relations and sends a clear signal that the Member States of the EEC have a common external policy on human rights.9 When the Single European Act entered into force, the EEC’s commitment to promote democracy and human rights in external relations was expressed in the preamble,10 and when the EEC was transformed into the EU and the EC on November 1, 1993, this obligation had been moved into the Treaty on European Union (TEU).11 During the approximately 20 years that have passed since the obligation to promote human rights through EU foreign policy was introduced into the TEU, the predominance of reactive measures, such as the ‘Uganda guidelines’, as opposed to pro-active, has gradually ceased. The promotion of human rights and democracy has become a well-known EU foreign policy goal, with various instruments at its disposal.12 However, although promotion of human rights and democracy has been on the EU’s foreign policy agenda literally speaking forever, there has never been a cohesive EU framework to structure the various strategic interests and instruments at hand. That is, not until now. On 25 June 2012 the Foreign Affairs Council adopted a Strategic Framework and Action Plan on Human Rights and Democracy.13 This is the first EU strategic framework for the policy area ‘Human Rights and Democracy’.14 The framework serves to improve the EU’s work with the 7 Council declaration on the situation in Uganda, adopted 21 June 1977, 10 Bull. EC 6-1977, 92–93. 8 Emphasis added to highlight the distinction between the intergovernmental and the communitarian. 9 Statement on human rights, adopted on 21 July 1986, by the Foreign Ministers of the European Community [sic], meeting in the framework of European Political Cooperation and of the Council, 19 Bull. EC 7/8-1986, 2.4.4. 10 SEA (n 5). 11 Article J.1 TEU, p 2 [1992] OJ C191/1–110. 12 For an overview, see http://eeas.europa.eu/human_rights/index_en.htm (last visited 1 October 2014). 13 Council Conclusions on Human Rights and Democracy, 3179th Foreign Affairs Council meeting, 25 June 2012. 14 EU Strategic Framework and Action Plan on Human Rights and Democracy, Council of the European Union, Doc 11855/12, 25 June 2012.

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promotion of human rights, democratic principles and the rule of law throughout the world.15 On the same day, the EU’s High Representative for Foreign Affairs and Security Policy proposed the appointment of an EU Special Representative on Human Rights.16 There are several ways to explain why the work on democracy promotion throughout the world has been carried out without an EU Strategic Framework up until the summer of 2012. Since the EU has always lacked, and still lacks, a general competence to legislate on matters regarding fundamental rights, the promotion of such values—although in itself an EU competence—has always been a secondary objective in each specific case, cutting across fields rather than forming a distinct field of its own. The policies drawn up to promote human rights and democratic principles in external relations, never had their own legal base for external action in the Treaties but were rather values that could, and should, be promoted in symbiosis with other EU policies and goals such as trade, development cooperation and negotiated association of third states.

Disposition The 2012 Strategic Framework takes a coordinating grip on EU action aimed at the promotion of human rights and democratic principles. Such an initiative raises many questions. The questions I have chosen to focus on in this chapter concern the possibility to conduct an EU foreign policy on human rights and democracy. First of all, ‘is it really the EU who enacts EU foreign policy on human rights and democracy?’, and secondly, ‘if it is the EU who acts, has the Member States conferred the appropriate powers on the EU to do so?’. Next, there will be a section on general EU foreign policy and a section on EU foreign policy on human rights respectively. Then, after a section where the EU Strategic Framework on Human Rights and Democracy is presented in detail, I will deal with the two questions above.

15 This, however, is not specifically stated in the Strategic Framework. The Council conclusions from the meeting in the Foreign Affairs Council adopting the Strategic Framework are more explicit on the fact that it is a framework for external action aimed at the promotion of human rights throughout the world. Council Conclusions on Human Rights and Democracy, 3179th Foreign Affairs Council meeting (n 13). 16 EU adopts Strategic Framework on Human Rights and Democracy, Council of the European Union, Doc 11737/12 PRESSE 285, 25/06/2012.

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APPROACHING EU FOREIGN POLICY

It would be presumptuous to state that some of the ‘actions’ listed in the EU Strategic Framework and Action Plan cannot be taken by the EU. However, such a statement may not be totally wrong. For instance, we could all, at least in theory, foresee the situation where the Court of Justice of the European Union (CJEU), under Article 263 of the Treaty on the Functioning of the European Union (TFEU), would conclude that a decision to take a certain action must be declared void. Such a judgment might be based on the fact that there is no competence under the Treaties to take the action. Then, the question arises: if action was taken in the EU’s name, although the competence to take such action was not conferred on the EU in the first place, would it still be possible to say that it was the EU that acted? The answer boils down to how you define the EU. The answer may well be that since there was no EU competence to act, it was not the EU that acted. On the other hand, when the Union acts under Title V of the TEU, for instance, based on the competence in Article 24 TEU, the general rule is that the decisions to define and implement EU foreign policy shall be taken by the European Council or the Council acting unanimously.17 This means that the competence to define, and implement EU foreign policy under Title V of the TEU is virtually unlimited and ad hoc in nature.18 Thus, the question always remains whether it is the Member States acting in unison, or whether it is the EU acting, and the answer is very much depending on whether you favour substance over form or whether you prefer it the other way around. It is a well-known fact that the TEU (post-Lisbon) bestows legal personality on the EU.19 However, it is probably equally well known, that this Treaty Article is of little help when one really wants to know who, or what, the EU is.

Two Kinds of EU Foreign Policy What is EU foreign policy, and who is the EU in the area of foreign policy? The questions may seem fairly straightforward, but they most definitely are not. Perhaps part of the problem lies within the concept ‘foreign policy’? 17

Article 31 TEU. Cf Jean-Claude Piris, The Lisbon Treaty—A Legal and Political Analysis (Cambridge, Cambridge University Press 2010) 77 and Piet Eeckhout, EU External Relations Law, 2nd edn (Oxford, Oxford University Press, 2011) 167, who both conclude that EU CFSP competence under Article 2(4) TFEU falls outside the general framework of conferral, or as Eeckhout puts it, in an ‘undefined category of its own’. 19 Article 47 TEU. 18

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Naturally, the CFSP is as old as the EU itself. However, the idea of a foreign policy does not limit itself to definitions made in a treaty. The concept may even be inherently indefinable in the context of the principle of conferral, as the nature of foreign policy is to use the instruments at hand for purposes additional to those directly intended for the specific instrument. A trade agreement may well be an instrument of foreign policy on par with a royal visit, but the conclusion of trade agreements is not a competence conferred for the purpose of conducting foreign policy. Therefore, it is vital to acknowledge that many, if not all, of the external competences laid down in the TFEU may be used as instruments for foreign policy even though they are not part of the CFSP. What then, constitutes EU external action? In Article 21(3) TEU, the Union’s external action is described as Title V TEU, Part V TFEU and ‘external aspects of other policies’ (under the TFEU). Title V of the TEU is called ‘General Provisions on the Union’s external action and specific provisions on the common foreign and security policy’. The name shows us that the CFSP forms a part of the Union’s external action. The CFSP is dealt with in Chapter 2 of Title V.20 ‘EU-CFSP’ action taken under Title V obviously constitutes EU action, but even the first part of the name itself—Common—suggests that the process of transforming the CFSP’s intergovernmental logic into the logic of a separate entity of international law, that is the EU, is still in progress. Thus, it is still difficult to draw the line between EU foreign policy and the foreign policy of the Member States’ (be it common or unilateral). Decisions to act under Chapter 2 of Title V TEU are taken by the Member States, either by unanimity or by qualified majority.21 Qualified majority is used when implementing strategic decisions on foreign policy already taken by the European Council.22 However, in the second paragraph of Article 31(2) TEU, we find a ‘soft veto’ whereby a member of the Council can force a decision that would normally be taken by qualified majority to be transformed into a decision requiring unanimity by stating vital reasons of national policy against the proposed decision. Decisions to act under Part V TFEU (and the rest of the TFEU as well) would generally be subject to the ordinary legislative procedure23 involving both the Council and the European parliament, and very rarely require unanimity.

20 Section 2 of Chapter 2 contains provisions on the common security and defence policy, which will not be specifically dealt with in this chapter. 21 Article 31 TEU. 22 Article 31(2) TEU. See also Articles 16 TEU and 238 TFEU, as well as the Protocol on transitional provisions for voting procedures in the Council. 23 Article 294 TFEU.

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As EU foreign policy can be conducted under both Treaties, it is not difficult to concur with Eeckhout’s conclusion that ‘[t]he delimitation between the CFSP competences and other EU external action competences is therefore crucial’.24 I would even suggest going so far as to speak about two kinds of EU foreign policy: TFEU-foreign policy and TEU-foreign policy, because since there is no true conferral of power in the TEU-foreign policy, there is significantly less tension between centralization and decentralization.

Who Acts—is the Tail Wagging the Dog? TFEU-Foreign Policy The Union’s external action under the TFEU is either conducted under Part V of the TFEU or as an external aspect of internal policy.25 Under Part V, the Council, the European Parliament and the Commission are all actors with roles defined by the Treaty. The High Representative also has a role to play, but mainly as initiator of actions. Even though the Member States are mentioned in 12 of the 17 Articles in Part V TFEU, they do not play a significant role in EU external action under the TFEU. The Articles that mention the Member States focus on the Member States’ obligation to coordinate their policies with the EU and to complement and reinforce the EU action. Decisions on TFEU-foreign policy are typically taken by the Council through qualified majority voting. As a main rule, the Council needs the consent of the European Parliament to adopt decisions.26 TEU-Foreign Policy When it comes to Title V TEU, the relevant actors are identified in Article 24 TEU. There we find that the European Council shall define and implement the CFSP assisted by the Council. Further, we find that the High Representative and the Member States shall put the CFSP into effect.27 The High Representative was installed through the Lisbon Treaty as an attempt to enhance the coherence and consistency of EU external action. The role of High Representative brought together three different roles from the previous structure into one; the High Representative for the

24 Eeckhout (n 18) 170, see also Christophe Hillion and Ramses Wessel, ‘The fuzziness of horizontal competence distribution in EU external relations: lessons from the ECOWAS case’ (2009) 46 Common Market Law Review. 25 Eg External aspects of the common agricultural policy such as fishing agreements with third countries based on Article 43 TFEU. 26 See eg Articles 207(2) TFEU, 209(1) TFEU, 214(3) TFEU and 218 TFEU. 27 This obligation is also stated in Article 26(3) TEU.

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CFSP/Secretary-General of the Council, the Commissioner for External Affairs and the President of the External Relations Council. The newly formed European External Action Service (EEAS) was also placed under the authority of the High Representative.28 The office of the High Representative survived the failed Constitutional Treaty29 but the second pillar was, in a manner of speaking, not brought down. Thus, the new environment of the Lisbon Treaty may not have been exactly what was previously intended for the High Representative in the Constitutional Treaty.30 Even though the High Representative may be a controversial figure to some, the obligation of the Member States to enact the CFSP is nothing less than a theoretical anomaly from the perspective of Public International Law. Simply put, since the EU was endowed with legal personality, the TEU makes the Member States agents of the EU in the same sense as the EU institutions, even though the Member States created the EU to act on their behalf. This peculiar situation is best understood from a historic perspective. Before the changes brought about by the Lisbon Treaty, what was then known as ‘the second pillar’ was purely intergovernmental in nature and since there was no expressed legal personality bestowed on the EU, the situation was fundamentally different. The changes in the first paragraph of Article 24 TEU (ex Article 11 TEU and Article J1 before that) illustrate this point. The Article lays down the basic provisions of the CFSP. Whereas the pre-Lisbon versions of the Article speak about the ‘objectives’ of the CFSP, the current version speaks about the Union’s ‘competence in matters of common foreign and security policy’. The shift in language confirms a shift in perception and understanding of the EU and its role in the Common (?) Foreign and Security Policy.31 What used to be an objective of the CFSP is now a competence conferred on the EU. The shift towards ‘super-nationality’ in the new TEU makes the Member State obligations under Title V TEU appear as the tail wagging the dog. However, it may be so that the ‘super-nationality’ exists on paper only. There is a change in form, but not in substance. In the Treaties, competences are in essence still the province of the TFEU since the TEU, as a result of the requirement of unanimity when shaping policy,32 is not based on conferred powers as such. Even though Article 2(4) TFEU confers competence

28

Article 27(3) TEU. The title of the office was however trimmed. Originally, it was named the ‘Union Minister for Foreign Affairs’. 30 For more on the High Representative, see Piris (n 18) 243 ff. 31 What does the word common signify in today’s Union? Is it something common to the Member States, or is it something common to the EU and the Member States? 32 See Articles 22(1) p 3, 24(1) p 2, 42(2) and 42(4) TEU. 29

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on the EU to ‘define and implement’ the CFSP,33 the combination with Article 24(1) TEU34 makes the reach of the conferred power so vast that it literally has no limit. This means that the EU has been given a conferred ad-hoc competence, which is the essence of an inter-governmental paradigm and in reality the opposite of a conferred power. And since at the same time, the EU institutions have been given a significantly less prominent role in Title V TEU compared to Part V TFEU, the perceived centralized foreign policy may, in substance, from time to time, still be as decentralized as though there had never been a CFSP in the first place. All the same, the shift in language will eventually result in a shift of how we perceive the EU as an organization as well as a subject of international law. No matter how we look at it, the EU nowadays has a conferred competence to define and implement a CFSP. As we will see, the EU has made use of this competence in the Action Plan, through appointing the Member States as responsible agents for carrying out some of the decided actions.

EU FOREIGN POLICY ON HUMAN RIGHTS—HUMAN RIGHTS AND DEMOCRACY AT THE HEART OF EU EXTERNAL ACTION

In December 2011, the Commission and the High Representative addressed a Joint Communication to the European parliament and the Council. Their intention was to open up a discussion on ‘how to make the EU’s external policy on human rights and democracy more active, more coherent and more effective’.35 Joint Communications of this sort is nowadays the only way the Commission can influence the CFSP. Prior to the entry into force of the Lisbon Treaty, the Commission had the power to submit proposals regarding the CFSP to the Council, but since December 1, 2009, the Commission’s only way to influence the CFSP is as support to the High Representative’s initiatives or proposals.36 Ever since the inception of the CFSP in November 1993, the Commission has influenced EU foreign policy on human rights through various communications to the Council. In 1995, the Commission proposed that a so called ‘human rights clause’ be issued in all drafts of EU external agreements.37 Even 33 Since the provision is separated from Articles 3–6 TFEU, we do not know whether this competence is exclusive or shared. 34 ‘The Union’s competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union’s security […]’, Article 24(1) TEU. 35 ‘Human Rights and Democracy at the Heart of EU External Action—Towards a More Effective Approach’ COM(2011) 886 final, 12 December 2011, 4. 36 Compare Article 22.1 of the former TEU with Article 30.1 TEU. See Piris (n 18) 263. 37 ‘Commission Communication on the Inclusion of Respect for Democratic Principles and Human Rights in Agreements between the Community and Third Countries’ COM(95) 216 final, 23 May 1995.

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though the proposal concerned Community agreements, there can be no doubt as to its purpose as an instrument of foreign policy.38 Later the same year, the Commission issued a communication to the Council and the European Parliament called ‘The European Union and the External Dimension of Human Rights Policy: From Rome to Maastricht and Beyond’.39 The communication was a rather ambitious attempt at an outline of a strategy for achieving the human rights related objectives of the post-Maastricht EU foreign policy.40 However, this attempt was never realized by the Council, although the European Parliament adopted a resolution calling for institutional coordination of human rights and democratization within the Commission, which specifically referred to the Commission communication of November 1995.41 In 1997 the Commission sent the Council a proposal for a Council regulation aimed at establishing a legal basis for external action promoting human rights, democratic principles and the rule of law.42 The idea was to create a legal basis for the use of the funds under budget chapter B7-7; The European Initiative for Democracy and Human Rights (EIDHR).43 This proposal eventually became two Council regulations, but not of the general nature covering the whole of EU foreign policy on human rights, but rather the human rights policy within development cooperation and ‘Community cooperation policy other than development cooperation’.44 38 On the use of conditionality clauses in EU international agreements, see Miele Bulterman, Human Rights in the Treaty Relations of the European Community—Real Virtues or Virtual Reality? (Antwerpen, Intersentia, 2001); Elena Fierro, The EU’s Approach to Human Rights Conditionality in Practice (The Hague, Kluwer Law International, 2003); Lorand Bartels, Human Rights Conditionality in the EU’s International Agreements (Oxford, Oxford University Press, 2005); Andreas Moberg, Villkorsklausuler—om avtalsklausuler som utrikespolitiskt instrument (Uppsala, Iustus, 2009). 39 COM(95) 567 final, 22 November 1995. 40 ibid, 6. 41 European parliament Resolution A4-0393/97, Resolution on setting up a single coordinating structure within the Commission responsible for human rights and democratization [1998] OJ C014/402. 42 Commission Proposal for a Council Regulation (EC) on the Development and Consolidation of Democracy and the Rule of Law and Respect for Human Rights and Fundamental Freedoms COM(97) 357 final, 24 July 1997. 43 The European Initiative for Democracy and Human Rights, launched in 1994, was succeeded from January 1, 2007 by the European Instrument of Democracy and Human Rights (same acronym), established by Regulation (EC) 1889/2006 of the European Parliament and of the Council [2006] OJ L386/1. Regulation 1889/2006 in force until 21 December 2013. 44 Council Regulation (EC) No 975/1999 of 29 April 1999 laying down the requirements for the implementation of development cooperation operations which contribute to the general objective of developing and consolidating democracy and the rule of law and to that of respecting human rights and fundamental freedoms, [1999] OJ L120/1–7, and Council Regulation (EC) No 976/1999 of 29 April 1999 laying down the requirements for the implementation of Community operations, other than those of development cooperation, which, within the framework of Community cooperation policy, contribute to the general objective of developing and consolidating democracy and the rule of law and to that of respecting human rights and fundamental freedoms in third countries, [1999] OJ L120/8–14. The Regulations expired on December 31, 2006 and were replaced by the financing instrument in Regulation (EC) 1889/2006 (see above).

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Even though a framework for financing certain external action taken to promote democracy and human rights was put in place with the Regulations 975 and 976/1999, this did not amount to a complete EU strategy on human rights and democracy. However, the Commission was apparently not too downbeat by the limitation put on the suggestions made in COM(97) 357, but instead kept working towards the establishment of an EU strategy on human rights policy in external relations. In May 2001, the Commission sent a new communication to the Council and the European Parliament called ‘The European Union’s Role in Promoting Human Rights and Democratisation in Third Countries’.45 The purpose of this communication was to set the policy on human rights and democratization ‘in the context of the Commission’s overall strategic approach in the external relations for the coming years’.46 The Council welcomed the Commission’s communication ‘as a valuable contribution towards reinforcing the coherence and consistency of EU policy in the field of human rights and democratisation’.47 The Council suggests that the question of a possible EU Common Strategy in the area of human rights and democratisation be further explored. In addition, the Council will take into account the positive experiences of the EU guidelines and common positions already in place.48

Even though the Council conceded that there is no EU Common Strategy, the Luxembourg Council conclusions were definitely a step in that general direction. They explicitly called for coherence between Community action and CFSP action, and they spoke of mainstreaming human rights in all EU external action as a means to get larger impact from actions taken without increasing budgetary allocations. Interestingly enough, the 2011 Joint Communication by the European Commission and the High Representative, which led to the Council adopting the EU Strategic Framework and Action Plan on Human Rights and Democracy, lists the Commission communication from May 2001 as the latest previous attempt to put in place a cohesive EU strategy on human rights and democratization. Although the 2011 Joint Communication lists several policy instruments and guidelines, it is obvious that the work on gathering EU external action on human rights under one single framework had been stalling for a decade. 45

COM(2001) 252 final, 8 May 2001. ibid, 3. In 2004, the Commission published a report on how the suggestions in COM(2001) 252 had been implemented: Commission Staff Working Document on the Implementation of the Commission Communication on the EU’s Role in Promoting Human rights and Democratisation in Third Countries (COM(2001) 252 final), SEC(2004) 1042, 30 July 2004. 47 Council conclusions on the European Union’s role in promoting Human rights and Democratisation in third countries, Luxembourg, 25 June 2001. 48 ibid, section 11. 46

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The 2011 Joint Communication spans a broad range of suggested actions. As a summary, the authors claim that the EU needs to ‘revisit its delivery mechanisms, processes and structures’.49 The Commission and the High Representative express hopes of the Joint Communication sparking an inter-institutional discussion on an agreed EU approach combining all the various separate approaches to promoting human rights currently being applied in the broad spectrum of EU external action. It would seem that this time around, the Commission’s efforts led to concrete Council action.

The EU Strategic Framework and Action Plan on Human Rights and Democracy The EU Strategic Framework and Action Plan on Human Rights and Democracy is an attempt to build on previous EU policy on human rights and democracy in EU external relations. When the Council adopted the Strategic Framework, it also adopted the following conclusion: Underlining the EU’s determination to promote human rights and democracy throughout the world, the Council today adopts an EU Strategic Framework on Human Rights and Democracy, to guide the EU’s engagement in years to come.50

Where the Strategic Framework describes the chosen strategy to promote human rights and democracy throughout the world, the Action Plan is the tactics chosen to succeed with the strategy. Inspired by this analogy, I will now describe the Strategic Framework and the Action Plan as separate entities. The Strategic Framework What then, is the EU’s strategy? The Strategic Framework lists the following headings: I. II. III. IV. V. VI. VII. VIII.

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Human Rights throughout EU Policy. Promoting the Universality of Human Rights. Pursuing Coherent Objectives. Human Rights in all EU External Policies. Implementing EU Priorities on Human Rights. Working with Bilateral Partners. Working through Multilateral Institutions. The EU Working Together.

COM(2011) 886 final (n 35), 7. Council Conclusion on Human Rights and Democracy, 3179th Foreign Affairs Council meeting, 25 June 2012. 50

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It is a three-page document with approximately 30 lines of text per page, which adds up to about 150 lines or roughly about 20 lines per heading. I would never argue that quantity equates quality, although it is obvious to everyone that there is more to an EU Strategic Framework on Human Rights and Democracy than three pages of text. On the other hand, it would be equally acceptable to most of us to acknowledge that the Strategy ought to be possible to summarize in three pages. The pertinent question is therefore: What does the document tell us about the EU’s strategy to promote human rights and democracy throughout the world? In an attempt to get an idea of what the EU Strategy may be, I have extracted from the text all statements signalling what the EU does, shall do or will do in the future.51 I refer to this part of the Strategy as the ‘active part’. It is interesting to note that the absolute majority (about 90 per cent) of the ‘active part’ consists of statements about what the EU will do. This may not seem all that strange, after all the Strategy is all about what to do in the future, but all the same, to distinguish the Strategy from the tactics (the Action Plan) it would make sense to use less operative language. Under heading IV it is stated, ‘The EU will promote human rights in all areas of its external action without exception.’ Under heading V we read, ‘the EU will intensify its political and financial support for human rights defenders and step up its efforts against all forms of reprisals’. Under heading VI we are informed that ‘[t]he EU will place human rights at the centre of its relations with all third countries, including its strategic partners’. These kinds of assurances make up the typical content of the Strategic Framework. It would thus seem that the core of the Strategic Framework—what the strategy is—is best understood through the headings themselves. Under headings I and II, the importance attached to human rights as universal norms is established. Headings III and IV explain that the EU will improve the coherence of both its policy and its external actions. Heading V talks about implementing priorities, although it would be difficult to pinpoint any thinkable human rights not mentioned in some way under heading V which makes it very difficult to distinguish the chosen priorities. Headings VI and VII focus on working methods (through bilateral relations and in multilateral fora). Furthermore, most of the text in the Strategic Framework refers, in some way or other, to EU action already in place. This is shown in the text through the reoccurring locutions: ‘the EU will step up its efforts’, ‘the EU will strengthen’, ‘the EU will deepen’, ‘the EU will continue to’, ‘the EU will 51 Heading VIII (The EU Working Together) is best regarded as a message directed towards the other actors (the European parliament, the Member States, the Commission and the EEAS) and stresses the importance of internal cooperation. Heading VIII is not replicated in the Action Plan, and will not be dealt with further.

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intensify’, just to name a few. This is important because it tells us that the EU is not as much in need of a new Strategy as it is of a Framework. The Action Plan The Action Plan describes 36 ‘outcomes’ under seven headings. The seven headings correspond to the headings in the Strategic Framework (except Heading VIII: The EU Working Together). The outcomes echo the ‘active’ part of the Strategic Framework. Some of them are examples of almost verbatim repetition of what already has been stated in the Strategic Framework. Each ‘outcome’ is broken down into one or more ‘actions’. The Action Plan distributes responsibility for carrying out the listed actions. In the Action Plan, each individual ‘action’ lists who is responsible for seeing it carried out. The EEAS (79 actions), the Commission (64 actions), the Member States (51 actions) and the Council (13 actions) are most frequently mentioned.52 All in all, 97 such ‘actions’ are listed. About 60 per cent of these are in fact measures that are EU-internal, meaning that they do not require external action on behalf of the EU.53 The other ‘actions’ do require some kind of external action.

WHO ACTS?—WHO REPRESENTS THE EU ACCORDING TO THE EU STRATEGIC FRAMEWORK AND ACTION PLAN ON HUMAN RIGHTS AND DEMOCRACY?

The Strategic Framework and Action Plan clearly states that it is the EU’s strategic framework. Yet, the carrying out of the majority of the ‘actions’, at least in part, is the responsibility of the Member States (51/97 actions). At first glance, Member State action is not EU action. Thus it would make no sense creating an EU Strategic Framework and Action Plan on Human Rights and Democracy, if the intention was to let the Member States—as distinct from the EU—perform the actions. However, within the TEU-foreign policy, the Member States may have a role to play.

52 Most of the actions list more than one actor as responsible. Apart from those already mentioned, the Action Plan also lists the Counter Terrorism Coordinator (CTC) (two actions), EU Head of Mission (EU HoM’s) (two actions), EU Special Representatives (EUSR’s) (one action), CSDP missions (one action) and the Anti-Trafficking Coordinator (one action). 53 The following ‘actions’ may serve as examples: Under heading I we find the following ‘action’ under outcome 3: ‘Present EU performance in meeting the objectives of its human rights strategy in the annual report on human rights and democracy in the world.’ Under heading II we learn that the EEAS and the Commission shall ‘Complete a network of focal points on human rights and democracy in EU delegations and CSDP missions and operations.’ These are clearly examples of internal actions decided to reach outcomes, which in their turn will complete the strategy and lead the EU on the way towards fulfilling its goals.

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Mixed agreements, shared tasks and responsibilities are not a new star on the heavens of the EU and its Member States, but it has always been a star that draws attention, discussion, and sometimes, confusion.54 It is important to stress that ‘mixity’ is, by its very nature, not ‘pure’ EU action. It is, quite clearly, ‘mixed’ action, and that makes it all the more interesting to find that the Member States are responsible for that many specific ‘actions’ in the EU Action Plan.

The Actors Identified in the Action Plan The EU Strategic Framework and Action Plan was adopted by the Council. In the introduction, the Action Plan identifies the actors responsible for carrying out the actions it contains. These actors are: — The High Representative, assisted by the EEAS. — The Commission. — The Member States. — The Council. The Action Plan specifically states that it does not affect the division of competence between the EU and its Member States.55 Furthermore, the Action Plan states that the actors (listed above) are responsible for carrying out the actions ‘within their respective fields of competence as defined by the Treaty on European Union’.56 These two caveats are well known to most students of the EU decision-making process. They are put in the text to avoid an implicit transfer of power through the principle of pre-emption. This is the way the Council has gone about to avoid implicitly extending the sphere of the EU’s competences under the Treaties.57 Looking at the list of actions there are three main actors; the EEAS (79 actions),58 the Commission (64 actions) and the Member States (51 actions). The Council (13 actions) has significantly fewer tasks than the others. In most cases, more than one actor shall carry out the tasks (81 actions). 54 ‘Mixed agreements’ has been a well-researched topic over many years. See eg Christophe Hillion and Panos Koutrakos, Mixed Agreements Revisited: The EU and its Member States in the World (Oxford, Hart Publishing, 2010), Eeckhout (n 18) 213–21, Allan Rosas, ‘The European Union and Mixed Agreements’ in Allan Dashwood and Christophe Hillion (eds), The General Law of E.C: External Relations (London, Sweet & Maxwell, 2000). 55 EU Action Plan on Human Rights and Democracy, p1, in EU Strategic Framework and Action Plan on Human Rights and Democracy, Council of the European Union (n 14). 56 ibid. 57 Cf Article 2(2) TFEU. 58 The Action Plan says ‘EEAS’ in the list of tasks to be performed. However, as already noted above, responsibility for carrying out the actions listed in the Action Plan rests with the High Representative assisted by the EEAS.

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Out of the 97 listed actions, 58 are internal actions such as reviews and evaluations of on-going projects. That leaves 39 actions that are of external character. These 39 actions can be divided in external unilateral action, such as promoting the ratification of conventions on human rights, and external action that require interaction with third parties such as engaging in dialogue. Fourteen of the 39 are of the latter category. At this stage, it may be worth noting that out of 97 actions, only 14 require external action to such an extent that interaction with a third party is necessary. For the purposes of this chapter, these 14 actions are more interesting than the other 83. Now, the Action Plan does not specify which competences the actions shall be taken on. Neither does it distinguish between TEU-foreign policy action from TFEU-foreign policy action. The 14 actions are all assigned to the EEAS and the Commission. Two are assigned to the CTC (Counter Terrorism Coordinator) together with the EEAS, the Commission and the Member States. The Member States share responsibility with the EEAS, the Commission and the CTC for carrying out eight of the 14 actions. This shows us that the responsibility for carrying out the explicit EU external action prompted by the EU Strategic Framework and Action Plan rests primarily with the High Representative, supported by the EEAS, and the Commission. However, for eight of the 14 tasks (57 per cent), the responsibility rests—at least in part—with the Member States. Also important, and interesting, even though it does not concern EU external action as such, is the fact that the Action Plan makes the Member States responsible for carrying out several internal actions as well.59 Two such actions stand out since the Member States are solely responsible for them. These are actions III.7.b: ‘Further develop arrangements for burden sharing in order to make the best use of Member State capabilities and expertise in pursuing the EU human rights policy’ and V.25.c: ‘Develop national plans for EU Member States on implementation of the UN Guiding Principles’. Action V.27.b also distinguishes itself as an action that is clearly a Member State obligation far separated from EU foreign policy on human rights: Given states’ primary duty to investigate grave international crimes, promote and contribute to strengthening the capacity of national judicial systems to investigate and prosecute these crimes.

More than anything else, the fact that these actions are included in the Action Plan indicates that the Council has not maintained a clear and consistent distinction between what falls under the competence to conduct an EU foreign policy and what actually does not. 59 See actions II.5.c, III.7.b (Member States only), III.8.b, IV.14.b, V.24.d,V.25.c (Member States only), V.27.b.

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Table 4.1: EEAS, the Commission and the Member States (Eight Actions)60 Action Actor I.2.a EEAS, Com, MS Heads of EU Delegations, Heads of Mission of EU Member States, heads of civilian missions and operating commanders shall work closely with human rights non-governmental organizations (NGOs) active in the countries of their posting. III.9.a MS, EEAS, Com Contribute to shaping the agenda on economic, social and cultural rights with specific focus on the UN Human Rights Council and in close cooperation with UN Special Rapporteurs covering the respective rights. IV.10.c Com, EEAS, MS Integrate human rights issues in the EU advocacy on the global development agenda and other global issues, in particular the process post the Millennium Development Goals. IV.11.f MS, EEAS, Com Work toward ensuring that solid human rights criteria are included in an international arms trade treaty. IV.13.a EEAS, CTC, Com MS Develop operational guidance to ensure the consideration of human rights, and where applicable international humanitarian law (IHL), in the planning and implementation of counter-terrorism assistance projects with third countries, in particular as regards the respect of due process requirements (presumption of innocence, fair trial, rights of defence). V.18.b EEAS, MS, Com Promote improved access by human rights defenders to the UN and regional human rights protection mechanisms, and address the issue of reprisals against defenders engaging with those mechanisms. V.28. EEAS, Com, MS Review best practice and ensure the use of existing EU instruments so support efforts to protect and promote the rights of persons belonging to minorities, in particular in dialogues with third countries. VI.31.b EEAS, Com, MS Ensure that human rights country strategic papers are taken into account in human rights and political dialogues at all levels, in policy-making and when programming and implementing financial assistance with third countries, including Country Strategy Papers.

60 Table 4.1 shows the eight external actions that the Action Plan lists where the responsibility for carrying them out rests with the EEAS, the Commission and the Member States. The Action Plan is not consistent when it comes to listing the order of the actors. This may mean that the order also shows distribution of degree of responsibility, but that is not made explicit in the Action Plan.

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Table 4.2: EEAS and the Commission (Six Actions)61 I.2.c

EEAS, Com

Consolidate consultations with civil society, notably on policy initiatives and dialogues on human rights; work in full partnership with civil society in the Annual EU NGO Forum. III.9.b

EEAS, Com

Address specific questions related to economic, social and cultural rights in dialogues with third countries. IV.11.b

EEAS, Com

Reinforce human rights (or political) dialogues with Free Trade Agreement (FTA) partners to encourage the protection and promotion of human rights (including core labour standards) and apply the strengthened Generalized System of Preferences (GSP+) monitoring mechanism. IV.13.b

EEAS, CTC, Com

Ensure that human rights issues are raised in all forms of counter-terrorism dialogues with third countries. IV.14.c

Com, EEAS

Ensure that human rights issues, including women’s enjoyment of human rights, are taken into account in freedom security and justice (FSJ) Sub-Committees with third countries. V.21.c

EEAS, Com

Make more systematic use of political dialogue and demarche campaigns to encourage third countries to ratify core IHL instruments and implement IHL obligations.

ARE THE PROPOSED ACTIONS WITHIN THE CONFERRED POWERS?—THE ‘STRATEGIC FRAMEWORK ON HUMAN RIGHTS AND DEMOCRACY’ ANALYZED THROUGH THE LENS OF THE PRINCIPLE OF CONFERRAL

As illustrated above,62 the wide definition of competences in EU foreign policy, combined with the veto power in Title V TEU, makes it difficult to maintain a clear-cut division between EU foreign policy action and Member State foreign policy action. Another way of illustrating the fuzzy border 61 Table 4.2 shows the six external actions that the Action Plan lists where the responsibility for carrying them out rests with the EEAS and the Commission without the Member States. The Action Plan is not consistent when it comes to listing the order of the actors. This may mean that the order also shows distribution of degree of responsibility, but that is not made explicit in the Action Plan. 62 See section entitled ‘Approaching EU Foreign Policy’ above.

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between EU foreign policy and Member State foreign policy is through putting the spotlight on those actions where the EU needs the support of the Member States because it lacks the required competence to act on its own. If we imagine that the EU is a bucket and that foreign policy on human rights is water being poured into this bucket, the lack of competence to conduct foreign policy on human rights will appear as holes where the water escapes. The Member States can cover these holes, since they can complement the EU’s lack of competence using their own, retained, competence in foreign policy. However, as long as these holes are simply covered, rather than mended, the bucket remains broken. Are There Any Holes in the Bucket? The analysis of the Action Plan shows that there are three types of external action at play in the EU Strategic Framework and Action Plan on Human Rights and Democracy. There is TFEU-foreign policy action, TEU-foreign policy action and Member State action, (uni- or multilateral). Since the competence to conduct TEU-foreign policy is virtually carte blanche, due to the wording of Article 24 TEU in combination with the veto power, TEU-foreign policy can be categorized as something between Member State foreign policy and TFEU-foreign policy, which is conferred foreign policy in the true sense of the word. Therefore, when illustrating the tension between centralization and de-centralization of foreign policy, it is particularly interesting to analyze to what extent the Action Plan relies on TEU-foreign policy competence. Or, sticking to the metaphor, since both Member State foreign policy competence and TEU-foreign policy competence can be used to fix the ‘holes in the bucket’, it is important to find out which is which, because only one of these fixes is really EU action. If the holes are fixed using pure Member State competence, then the policy is no longer EU foreign policy. This is where the tension between centralization and decentralization of EU foreign policy competence manifests itself as a problem for EU foreign policy on human rights. If there is too much involvement of the Member States, be it on their own or through the TEU, the legitimacy of EU foreign policy on human rights suffers. TEU-Competence, TFEU-Competence or Member State Competence? In order to determine to what extent the Action Plan relies on the use of either TEU-foreign policy or Member State foreign policy, the 14 actions of external EU human rights policy are scrutinized.63 These actions serve as 63

See Tables 4.1 and 4.2 above.

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concrete examples of how the EU shall promote human rights and democratic values throughout the world. The Action Plan makes no distinction between the different types of competence. Indeed, the eight actions that the EEAS, the Commission and the Member States share responsibility for spring from outcomes 2, 9, 10, 11, 13, 18, 28 and 31 and the other six actions (the EEAS and the Commission) from outcomes 2, 9, 11, 13, 14, and 21. This shows that there are some actions among the 14 that share the same expected outcome. All in all, the relevant 10 outcomes are the following: Table 4.3: The Expected Outcomes I-2

Genuine partnership with civil society, including at the local level

*** III-9

Respect for economic, social and cultural rights

*** IV-10

Working towards a rights-based approach in development cooperation

IV-11

Make trade work in a way that helps human rights

IV-13

Entrench human rights in counter-terrorism activities

IV-14

Ensure human rights underpin the external dimension of work in the area of ‘freedom security and justice’ (FSJ)

*** V-18

Effective support to human rights defenders

V-21

Compliance with international humanitarian Law

V-28

Promote the respect of the rights belonging to minorities

*** VI-31

Impact on the ground through tailor-made approaches

As shown in the list, five of the seven headings of the strategy are represented, although the bulk of the outcomes (70 per cent) are from headings IV (‘Human Rights in all External Policies’) and V (‘Implementing EU Priorities on Human Rights’). Some of the outcomes are simply statements to the effect that the EU plans to abide by international law (III-9, V-21). Others are formulated in a way as to suggest that the advancement of human rights is a positive synergetic effect of EU action (IV-11). Outcomes IV-13 and IV-14 use words such as entrench and underpin, which suggests that the human rights norms are fundamental for the external action. Now, when trying to determine which competences to use for specific external action, as suggested in the action plan, we should follow certain assumptions. Since the Member States do not act in the capacity of

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Member States under the TFEU, we can assume that the eight actions that the Member States are partly responsible for were planned as TEU-foreign policy action. Consequently, we will assume that the Council considered that the other six actions could be taken either under TFEU-competence, or under TEU-competence. Three of the eight actions are listed under heading IV and two of them under heading V. That would suggest that the focus of the TEU-competence leans towards headings IV and V.64 First of all, there are two actions that concern shaping human rights norms within the UN structure.65 These serve as a very good example of a situation that simply cannot be part of an EU strategy in a strict sense—because the EU is not a member of the UN. However, all of the EU’s Member States are. This makes these two actions good examples of where the centralized foreign policy needs the Member States to cover for its lack of competence. Action IV.11.f is also interesting: ‘[w]ork toward ensuring that solid human rights criteria are included in an international arms trade treaty’. Obviously, ‘work toward’ may not necessarily mean very much, but we must keep in mind that this, after all, is the official EU Strategy and Action Plan on Human Rights and Democracy. The interesting part is that the EU does not conclude international arms treaties. Why this action forms part of the EU Strategic Framework is therefore a well merited question. Action IV.13.a is also of interest mainly because distinguishing it from IV.13.b clarifies the distinction between the six actions where the Member States are not responsible and the eight actions where they are. Develop operational guidance to ensure the consideration of human rights, and where applicable IHL, in the planning and implementation of counter-terrorism assistance projects with third countries, in particular as regards the respect of due process requirements (presumption of innocence, fair trial, rights of defence).

Apparently, the ‘planning and implementation of counter-terrorism assistance’ require Member State cooperation, while ‘raising human rights issues in dialogues on counter terrorism’66 does not. These two examples (influencing the UN and working on counter terrorism) tell us that the participation of the Member States has to do with the Council and the Commission’s inability to perform these actions on their own. However, in the case of the work at the UN, the EU institutions do not have access on their own, but in the case of the counter terrorism dialogues, planning and implementation, the competences are there in the Treaties. This means that the work within the UN is EU external action via proxy, 64 Heading IV: Human Rights in all EU External Policies and heading V: Implementing EU Priorities on Human Rights. See section entitled ‘The Strategic Framework’ above. 65 These are actions III.9.a and IV.10.c. 66 Action IV.13.b.

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while the counter terrorism work is EU external action under the TEU as well as under the TFEU. When it comes to the six actions, there is nothing that points towards the EU not being competent to conduct the actions. The bulk of these actions (50 per cent) are to be taken under heading IV—‘Human Rights in all EU External Policies’. Looking back at the ‘active part’ of the Strategic Framework, the six actions correspond to the following strategic objectives: i. ii.

iii.

The EU will promote human rights in all areas of its external action without exception. In particular, it will integrate the promotion of human rights into trade, investment, technology and telecommunications, internet, energy, environmental, corporate social responsibility and development policy, as well as into Common Security and Defence Policy and the external dimensions of employment and social policy and the area of freedom, security and justice including counter-terrorism policy. In the area of development, cooperation a human rights based approach will be used to ensure that the EU strengthens its efforts to assist partner countries in implementing their international human rights obligations.

All the six actions concern making use of already established platforms for dialogue (eg trade, counter-terrorism work, freedom, security and justice), and these dialogues are coordinated through the EEAS under the supervision of the High Representative. Although the dialogues will be conducted either by fonctionnaires working for the Council (EEAS) or the Commission, the actions are framed in a way that they seem possible to perform under the Treaties. The previously mentioned action IV.13.b, ‘Ensure that human rights issues are raised in all forms of counter-terrorism dialogues with third countries’ could arguably fall under the CFSP or the CSDP. Whether it does or not would be for the CJEU to decide under Article 40 TEU, and the previously discussed distinction from action IV.13.a signals that the Council is convinced that it belongs outside the TEU.67 Returning to the question whether there are any holes in the bucket, it would appear as if there are a few. Some of the proposed actions simply cannot be achieved by the EU without the help of the Member States, such as active work in the UN organs or conclusion of an international arms treaty. Some of the proposed actions will require TEU-competence, such as implementation of counter-terrorism assistance. Although the bucket is not leaking, it is definitely not watertight. It is not even clear that all the foreign policy is in the same bucket.

67 The EU work so far in this field has been conducted mainly in the form of Framework decisions under the former ‘third pillar’. The CTC was established by the European Council in March 2004, to work under the then High Representative of the CFSP, Javier Solana, in the Council Secretariat.

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CONCLUSION

In this chapter, my aim has been to discuss to what extent the ‘actions’ in the Action Plan, and thus the Strategic Framework and consequently the EU policy on Human Rights in external relations, can be performed by the EU through use of the competence conferred to it under the Treaties. One of the more obvious changes to the EU caused by the Lisbon Treaty was that the EU now has legal personality. Endowing legal personality on the EU was to a large extent a manifestation of current practice, but at the same time it changed the playing field in the former ‘second pillar’. What we all know as the ‘Common Foreign and Security Policy’ is no longer a suitable description as we now have to accept that the policy is common in more than one way. It is (still) common to the Member States, but also to the EU and the Member States. At the same time, it may well be argued that it is not common to the EU and the Member States, because of the intergovernmental philosophy that underpins it. Therefore, it is reasonable to accept that we have two kinds of EU foreign policy; TFEU- foreign policy and TEU-foreign policy. The EU holds great aspirations in the field of human rights and democracy promotion. These aspirations are difficult to realize because the tension between the EU and its Member States, created by the ongoing process of centralization of foreign policy competences, makes the EU’s policy mandate a patchwork of competence. The EU Strategic Framework and Action Plan on Human Rights and Democracy suffers from the fact that the opaque distribution of foreign policy competence has led to a three tiered68 division of competences, thus making it difficult to consider significant the Strategic Framework’s potential to strengthen the EU’s efforts to ensure that human rights are realized for all. The Treaties state that the EU shall ‘promote’,69 ‘be guided by’70 and ‘work for’71 human rights and democracy, but these are all provisions describing the goals to be achieved, much like those expressed in Articles 3.1 TEU: ‘[t]he Union’s aim is to promote peace, its values and the well-being of its peoples’ and 3.3 TEU ‘[t]he union shall establish an internal market’. EU policy on human rights is thus based on the goals in Articles 3 and 21 TEU, but the external action, which according to said articles must promote these values, is based on other competences laid down in the Treaties. This means that EU foreign policy on human rights and democracy is the result of a symbiotic relationship between the goals in Articles 3 and 21 and the external competences laid down elsewhere in the Treaties. This is important, since

68 69 70 71

TEU-competence, TFEU-competence and Member State competence. Article 3.5 TEU. Article 21.1 TEU. Article 21.2 (b) TEU.

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the external competences are either TEU-competence or TFEU-competence. This distinction means that the EU Strategic Framework and Action Plan on Human Rights and Democracy may include both intergovernmental decision-making with a high degree of Member State influence, as well as communitarian decision-making based on EU logic. Basically, there are two lines that need to be drawn. Firstly, the line between EU action and Member state action, and secondly, the line between TEU-foreign policy and TFEU-foreign policy. The EU Treaties deal with how to draw these lines in two Articles. The first line is handled through Articles 5 TEU and 3–6 TFEU, which is commonly referred to as the principle of conferred, or attributed, powers. In short: what the Member States have not authorized the EU to do—it cannot do. For deciding the line between TEU-foreign policy measures and TFEU-foreign policy measures, reference is made to Article 40 TEU. Article 40 TEU serves the purpose of separating EU action of an intergovernmental nature from EU action of a communitarian nature and vice versa. Furthermore, as shown in this chapter, it is worth noting that out of 97 actions in the Action Plan, only 14 require external action to such an extent that interaction with a third party of the kind that would require a conferred competence under the Treaty is required. Moreover, it has been shown that the responsibility for carrying out the explicit EU external action prompted by the Strategic Framework and Action Plan rests primarily with the High Representative, supported by the EEAS, and the Commission. However, for eight of the 14 tasks, the external EU action is the responsibility—at least in part—of the Member States acting in a role sometimes explicitly distinguished from the EU itself. The analysis of the EU Strategic Framework thus concludes that the confusion caused by the unresolved issue of transfer of competence to conduct foreign policy hampers the policy on human rights and democracy. Until the tension between the pull for centralization of power of foreign policy and the resistance from the part of the Member States has been eased, the EU’s foreign policy will still be a bucket full of holes that only contain as much foreign policy as the Member States so wish.

5 Balance or Clash of Legal Orders—Some Notes on Margin of Appreciation PÄR HALLSTRÖM*

INTRODUCTION

T

HE TERM MARGIN of appreciation or marge d’appréciation, marge national, is used in European law language to indicate the scope of national courts or political bodies to applying their national law at their own discretion in fields covered by an international obligation. The term was first referred to in 1958 by the former European Commission of Human Rights in the case Greece v the United Kingdom1 on the subject of Cyprus, where the Commission found that Article 15 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) allows a High Contracting Party to take measures derogating from the obligations of the Convention in time of war or public emergency threatening the life of a nation. The Commission referred to the term again in the case Lawless v Ireland,2 and the European Court of Human Rights (ECtHR) first used the term in 1978, in the case Ireland v the United Kingdom;3 both cases concerned Article 15. In all those cases the European Bodies reminded the Parties that they may only derogate from the Convention to the extent strictly required by the exigencies of the situation, and the ECtHR underlined that it is empowered to rule on whether the states have gone beyond the ‘extent strictly required by the exigencies of the crises. The domestic margin of appreciation is thus accompanied by a European supervision’.

*

Professor Emeritus of Law, Umeå University. Greece v the United Kingdom, Application no 176/56, Rep of the Commission, 1958, Chapter II. 2 Lawless v Ireland, 1 July 1961, Series A, no 3. 3 Ireland v United Kingdom, ECHR, (1978) Series A, no 25. 1

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The main conditions and parts of the doctrine of the margin of appreciation are present already in these first cases: the international convention in question shall contain obligations that are possible to derogate from or are not strictly framed; the obligations of the convention shall give rights to individuals; a judicial body shall supervise that the obligations are observed and decide cases where individuals are parts; and the Contracting Parties may only derogate to the extent necessary—a margin supervised by the judicial body. The Court of Justice of the European Community, now the Court of Justice of the European Union (CJEU), has adopted the doctrine of margin of appreciation and has applied it both when general principles of law are concerned, including human rights, and when the Member States are bound to the European Charter of Human Rights or to other union obligations, including EU legislation. The application of the doctrine of ‘margin of appreciation’ situates the judge at the nexus of the complexity of European law. It involves a balancing of the interest of states to freely decide on matters regulated by the Convention and the interest of individuals who have rights granted by the Convention. It is also about balancing rights of the Convention that may not be possible to attain simultaneously, and added to that, by applying the margin of appreciation the judge decides on what legal order should prevail in the situation, international law or national law, public law or private law, and—when the case is in front of the judge of the CJEU—the decision is taken within the framework of European Union law. This chapter is on some of the issues connected to the application of the ‘margin of appreciation’.4

THE MARGIN OF APPRECIATION AS APPLIED BY THE EUROPEAN COURT OF HUMAN RIGHTS

ECHR law is part of, and has a key function for the development of international human rights law. This branch of public international law puts the individuals at the centre. By granting rights to individuals, the Contracting Parties to a human rights treaty have created horizontal obligations between themselves to observe those rights, but the rights that such a treaty gives rise to are not only horizontal between the Contracting Parties but vertical, invested in the individuals and directed against the state on whose territory

4 The issue of margin of appreciation has given rise to numerous books and academic articles. Judge Dean Spielman mentions some 20 of the most interesting in his CELS Working Paper, February 2012, Allowing the Right Margin the European Court and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review? at www.cels. law.cam.ac.uk/publications/working_papers.php, fn 7.

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they may be.5 The judicial rights and the right to make a final appeal to the ECtHR make those rights efficient. ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority’, Article 13; and ‘[t]he Court may receive applications from any person […] claiming to be the victim of a violation […].’ on the condition that domestic remedies have been exhausted, and that the Court has not dealt with substantially the same matter before, Article 35. The role of ECtHR reveals on the one hand that the ECHR shall function like a super constitution in the legal orders of the states,6 and on the other that its court is subsidiary to national courts.7 It guarantees in last resort that the individuals may obtain their rights, but national bodies have the primary obligation to make sure that their legal orders are in conformity with the Convention. The ECHR contributes to harmonizing the national laws, but the Contracting Parties did not want the Convention to intrude totally on their traditional sovereign powers expressed by international law. They decide about emergency situations and their vital interests; some rights are possible to derogate from under certain situations, and the states may express reservations to a few others. The following notes, inspired by the ECtHR case law, intend to illustrate the room to manoeuvre of the states within the framework of the obligations of the Convention, their ‘margin of appreciation’. a. The rights of the ECHR are often framed more like general principles than well-defined obligations. The Contracting Parties gave to the ECtHR the mission to give more precise definition of those obligations via its case law. The Council of Europe, consisting of Member States with varied culture, legal and political traditions and economies did, however, not want their laws to be totally harmonized and they expected consequently to maintain a margin of appreciation about how to live up to the obligations of the Convention, and that the ECtHR limited itself to state the essential qualities of the rights and to assure that they were not hollowed out.8

5 The fact that the ECHR only creates obligations between states and not directly for persons prevents the Convention from having so called ‘Drittwirkung’, ie quality to be applied to relations between private persons. However, the Parliamentary Assembly passed a Resolution 1165 (1998) stating that the right to private life and of freedom of expression should be protected also against private institutions in the mass communication branch. 6 Remaining an international court it may only establish a breach of the Treaty and decide about damages, and it does not have the power to declare national measures void. 7 Handyside v United Kingdom, 7 December 1976, Series A no 24, point 48. 8 The states consequently benefit from a large margin of appreciation in areas such as social and economic policies, James and Others v the United Kingdom, 21 February 1986, Series A no 98; as well as social security benefits, Stec and Others v the United Kingdom [GC] no 65731/01, ECHR 2006-VI.

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b. An important mission of the ECtHR is consequently to balance, via interpretation, the room to manoeuvre of the states and rights of individuals granted by the Convention while guaranteeing that the essentials of the Convention persist. c. The importance that the ECtHR attaches to comparison as an interpretative method can be understood in the perspective mentioned above. If the ECtHR finds that there is a consensus among the European legal systems that a situation falls under a protected right, the margin of national appreciation is narrow.9 On the contrary, in questions of for example religion and morals, where national conceptions vary, the margin is wide. The ECtHR reasoning in Leyla Sahin10 on wearing a headscarf for religious reasons in Turkish universities is an illuminating example: 109. Where questions concerning the relationship between State and religions are at stake, on which opinion in democratic society may reasonably differ widely, the role of the national decision-making body must be given special importance (see, mutatis mutandis, Cha’are Shalom Ve Tsedek, cited above, §84, and Wingrove v. the United kingdom, judgment of 25 November 1996, Reports 1996-V, pp.157–58). This will notably be the case when it comes to regulating the wearing of religious symbols in educational institutions, especially (as the comparative-law material illustrate—see paragraphs 55-56 above) in view of the diversity of the approaches taken by national authorities on the issue. It is not possible to discern throughout Europe a uniform conception of the significance of religion in society (se Otto-PremingerInstitut v. Austria, judgment of 20 September 1994, Series A no.295-A, p.19, §50), and the meaning or impact of the public expression of a religious belief will differ according to time and context (see, among other authorities, Dahlab v. Switzerland (dec.) no. 42393/98, ECHR 2001-V). Rules in this sphere will consequently vary from one country to another according to national traditions and the requirements imposed by the need to protect the rights and freedoms of others and to maintain public order (see, mutatis mutandis, Wingrove, cited above, p. 1957, § 57). Accordingly, the choice of the extent and form such regulations should take must inevitably be left to a point to the state concerned, as it will depend on the specific domestic context (see, mutatis mutandis, Gorzelik and others, cited above, § 67, and Murphy v. Ireland, no. 44179/98, § 73, ECHR 2003-IX).

d. The ECtHR has found, when interpreting the Convention, that some rights are more important than others and less apt to national margin of appreciation. Only Article 1 of Protocol No 1, on private property, 9 A consensus acquires the function of a European standard that limits national appreciation, cf U Prepeluh, Die Entwicklung der Margin of Appreciation—Doktrin in Hinblick auf die Pressefreiheit, ZaöRV 2001, 771, 776. Consensus is often overestimated and applied as a norm while the lack of consensus justifies national sovereignty and margin of appreciation, cf G Letsas, ‘Two Concepts of the Margin of Appreciation’ (2001) Oxford Journal of Legal Studies 705. 10 Leyla Sahin v Turkey [GC] (App no 44774/98) ECHR 2005-XI.

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refers to some national discretion, but several other articles of the ECHR admit that states may restrict the rights stated in them. Such is the case for Articles 8 to 11 on rights to private and family life, freedom of thought, conscience and religion, freedom of expression and freedom of association. Those rights may be subject to such limitations as are prescribed by law and are necessary in a democratic society in the interest of public safety, etc. The ECtHR has found that the states may enjoy a certain margin of appreciation, depending on the situation, when applying those rights. The ECtHR has also found that state authorities are best situated to determine whether the life of the nation is threatened by a public emergency, etc. and of measures necessary to overcome it in the meaning of Article 15, and to decide on measures related to national security.11 However, some rights are non-derogable such as right to life, prohibition of torture, prohibition of slavery and forced labour and the no punishment without law requirement, Articles 2,3,4 and 7. The states have hardly any margin of appreciation at all when applying them. e. Even when acting within their margin the states are bound to observe the Convention and are under the control of the ECtHR. As the Court expressed in Leyla Sahin: §110 This margin of appreciation goes hand in hand with a European supervision embracing both the law and the decisions applying it. The Court’s task is to determine whether the measures taken at national level were justified in principle and proportionate (See Manonsakis and others, cited above, p. 1364, § 44). In delimiting the extent of the margin of appreciation in the present case, the Court must have regard to what is at stake, namely the need to protect the rights and freedoms of others, to preserve public order and to secure civil peace and true religious pluralism, which is vital to the survival of a democratic society […]12

f.

The scope of the margin consequently does not only depend on whether there is a consensus on whether a situation falls under the Convention, on whether the right protected is apt to some national margin, but also on whether a national measure is serious enough to constitute an infringement, and if it is necessary, proportionate, in relation to a legitimate purpose.13 Being closely linked to the principle of effective protection, the proportionality principle constitutes the strongest bulwark against the over-use of the margin of appreciation doctrine.14 It is the state in

11

Leander v Sweden, 26 March 1987, Series A no 116. ibid. 13 Mireille Delmas-Marty et Marie-Laure Izorche, ‘Marge nationale d’appréciation et internationalisation du droit: réflexions sur la validité formelle dún droit commun pluraliste’ (2001) 46 McGill Law Journal 934. 14 Judge Dean Spielman (n 4) 22. 12

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question that should justify that its measure is proportionate. In order to prove that it is so the state must first demonstrate that it is taken within the framework of an aim that is legitimate according to the Convention, like meeting a specified pressing social need. Secondly, that the measure is necessary for reaching that aim, and, thirdly, the state must prove that the measure in question is the one that is least infringing on the Treaty, if there are several alternatives. g. Often two or even more rights of the Convention are applicable to a situation. This requires the balancing of rights, and gives rise to the issue of hierarchy of rights. Given that some rights are non-derogable, Articles 3, 4, 7 rank higher in the hierarchy than those where the states have a large margin of appreciation. In such latter cases the balance is undertaken by the states in the context of cultural values, politics and economy of the state in question. In the cases Egeland and Hanseid v Norway,15 and Axel Springer AG v Germany,16 both concerning the freedom of expression (right to publish negatively on convicted persons) vis-à-vis the respect for private life, the ECtHR came to different conclusions, however, because the offended person in the latter case, having a public role, had to accept negative publicity.

THE MARGIN OF APPRECIATION IN THE EUROPEAN UNION LEGAL ORDER

Both the Council of Europe and its system of protection of human rights and the European Union are based on international treaties, but while the ECHR is still international law, despite the role and importance that human rights law attaches to the protection of the individual, the European Union constitutes a new order of law; a quality the European Court of Justice bestowed upon the European Community with the basic cases Van Gend en Loos17 and Costa Enel.18 The principle of bona fide is still at the basis of the ECHR, while the more federal principle of sincere cooperation19 determines the relations between the Union and its Member States. This being the case, the issue of margin of appreciation is situated in a different setting than what the circumstances are when the ECHR is concerned.

15 Egeland and Handseid v Norway, no 34438, 16 April 2009 (wide margin, no violation of Article 10). 16 Axel Springer AG v Germany [GC] (App no 39954/08) 7 February 2012 (national measures not proportionate, violation established). 17 Case C-26/62 Van Gend en Loos [1963] ECR 1. 18 Case C-6/64 Costa v ENEL [1964] ECR 105. 19 Article 4(3) TEU.

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The characteristics of the EU legal order is described in any basic book on the EU, but for the purpose of situating the margin of appreciation doctrine in the EU context it is of importance to emphasize some of its attributes. One is the quality of not only creating mutual and horizontal relations between Member States, like international law, but also of establishing vertical relations, rights and obligations, between the Member States and persons. Some law even creates horizontal rights and obligations between the persons. Consequently the constitutional law perspective preponderates over the international law one. The introduction of an EU citizenship by the Maastricht Treaty 1992 is a clear manifestation of this. While the ECHR bestow persons with rights that they can claim in last instance in the ECtHR, the European Union legal order includes legislative acts and administrative decisions taken by the EU institutions that can be challenged in the EU courts via a complete system of remedies. The constitutional quality is further emphasized by this fact that the Member States have conferred powers to the EU institutions to legislate and issue other binding acts resulting in the limitation of their own legislative power. This power of the EU is to be exercised with regard to the rule on conferral of power. It means that the Union can act ‘only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein’ and that competences not so conferred remain with the Member States.20 This fact, that the European Union is more than an international organization, that it is a quasi-federal constitutional unit, has the result that estimations within the nature of margin of appreciation can be undertaken in three circumstances within the framework of the European Union. Firstly, the European Union institutions are bound to observe the ECHR, including its interpretations by the ECtHR, in its quality of general principles, when taking measures within the area of EU competences. Secondly, it is the EU institutions, including the European Union Court of Justice (EUCJ), and not the Member States, that apply a margin of appreciation discussion when deciding the room for manoeuvre of Member States when the Member States apply or take decisions within the framework of union competences, and, thirdly, the Member States are bound to apply the ECHR including the ECtHR interpretations on margin of appreciation, when they act within their competences not conferred to the European Union. Turning first to the first situation: the EU acts in a field where powers to legislate or to take binding decisions have been conferred to it from the Member States. According to Article 6 TEU, such measures shall be in conformity with the European Charter of Human Rights and with the ECHR in

20

Articles 4(1) and 5(2) TEU.

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its quality of binding general principles of law. It is of note that this Article 6 is completed with Article 53 of the Charter stating that [n]othing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms […]

Article 52(3) adds that ‘the meaning of rights in the Charter that correspond to those of the ECHR shall be the same’. It consequently follows that the EU shall apply the margin of appreciation doctrine as elaborated by the ECtHR. The margin of appreciation as elaborated by the ECtHR concentrates on assuring that the judicial branch is apt to grant to the individual the proper level of protection of her human rights. It leaves to the political branch its freedom to evaluate the political or economic situation justifying a measure. The judicial branch may only ensure that the political branch has not made a patent mistake bordering on the misuse of powers concept. This is what the European Court of Justice expressed in Westzucker v Einfuhr: When examining the lawfulness of the exercise of such freedom [of evaluation] [d’appreciation] the courts cannot substitute their own evaluation of the matter for that of the competent authority but must restrict themselves to examining whether the evaluation of the comptetent authority contains a patent error [error manifeste] or a misuse of power.21

Rules on protecting human rights are not apt to such freedom of evaluation as those concerning economic or political appropriateness, and the guarantees of them inherent in the European Union legal order are to be observed by the Union authorities even in situations when they take decisions of an economic nature. However, ECHR Article 15 permits derogations from obligations of the Convention in time of war or other public emergency threatening the life of the nation, but the Article limits such derogation to what is strictly required by the exigencies of the situation. The EU Charter of Fundamental Rights Article 52 states that any limitation on the exercise of the rights must be provided for by law and respect the essence of them. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union. The actions of the EU political bodies in foreign policy and particularly security matters necessitates wide discretionary powers, a wide margin of appreciation, but according to the Articles above the protection of human rights can only be reduced in consideration to what is strictly necessary and in respect of the essence of those rights. This is also confirmed by the CJEU

21

Case 57/72 Westzucker v Einfuhr und Vorratstelle Zucker [1973] ECR 340.

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when the EU takes action against international terrorism, even in case the Union implements a resolution of the United Nations Security Council on freezing funds and economic resources belonging to persons. In the Kadi case the appealing parties claimed that judicial review should be restricted, limited to manifest error of assessment, when measures concerned are the outcome of choices resulting from complex assessments and the exercise of wide discretion exercised in pursuit of broadly defined goals.22 However, the Court held that the Courts of the European Union must, in accordance with the powers conferred on them by the Treaties, ensure the review, in principle the full review, of the lawfulness of all acts in the light of the fundamental rights forming an integral part of the European Union legal order, including review of such measures as are designed to give effect to resolutions adopted by the Security Council […]. Those fundamental rights include, inter alia, respect for the rights of the defence and the right to effective judicial protection.23 the first of those rights, which is affirmed in Article 41(2) of the Charter […], includes the right to be heard and the right to have access to the file, subject to legitimate interests in maintaining confidentiality. The second of those fundamental rights, which is affirmed in Article 47 of the Charter, requires that the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based […] so as to make it possible for him to defend his rights in the best possible conditions […] and in order to put the latter [the court having jurisdiction] fully in a position to review the lawfulness of the decision in question.24

However, the CJEU recognized that some restrictions are admitted given that the Charter Article 52(1) allows limitations subject to the condition that they respect the essence of the fundamental right in question and, subject to the principle of proportionality, that it is necessary and genuinely meets objectives of general interest recognized by the European Union. The Court underlined that the question whether there is an infringement of the rights must further be examined in relation to the specific circumstances of each particular case including the nature of the act at issue, the context of its adoption and the legal rules.25 As far as the effectiveness of the judicial review is concerned, it requires that an EU decision which affects a person individually is taken on a sufficiently solid factual basis to be verified by the judge.26 It stated that: Admittedly, overriding considerations to do with the security of the European Union or of its Member States or with the conduct of their international relations

22 Joined Cases C-584/10 P, C-593/10 and C-595/10 P Kadi II, 18 July 2013, not yet published, para 74. 23 ibid paras 97 and 98. 24 ibid paras 99 and 100. 25 ibid paras 101 and 102. 26 ibid paras 118 and 119.

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may preclude the disclosure of some information or some evidence to the person concerned. In such circumstances, it is none the less the task of the Courts of the European Union, before whom the secrecy or confidentiality of that information or evidence is no valid objection, to apply, in the course of the judicial review to be carried out, techniques which accommodate, on the one hand, legitimate security considerations about the nature and sources of information taken into account in the adoption of the act concerned and, on the other, the need sufficiently to guarantee to an individual respect for his procedural rights, such as the right to be heard and the requirement for an adversarial process […].27

When the CJEU evaluates the limits to the margin of appreciation of political bodies set by the guarantees of the ECHR and the EU Charter, it sometimes has to balance fundamental rights to each other or to prioritize them, deciding whether one right weighs heavier than another. As we described in the first part of this chapter, this is nothing new to the ECtHR, but the task of the CJEU is somewhat more complex as the European Charter of Human Rights is of a broader scope than the ECHR, and comprises rights of an economic and social nature besides civil fundamental rights. The CJEU must consequently reconcile the obligation to stick to the meaning of the rights of the ECHR and at the same time give proper effect to other fundamental rights of the Union. Situations may even occur when two or several rights cannot be attained simultaneously. The Union or a Member State may in such situations consider that Union or local interest allows it to benefit from a margin of appreciation in order to derogate from one of those rights. When such situations occur, the ECtHR has the task of balancing two rights of the same human rights nature while the CJEU may need to balance rights of different nature. As the Court explained in the Sky case: Where several rights and fundamental freedoms protected by the European Union legal order are at issue, the assessment of the possible disproportionate nature of a provision of European Union law must be carried out with a view to reconciling the requirements of the protection of those rights and freedoms and a fair balance between them.28

The CJEU has had several opportunities to balance different rights. In the case of Schmidberrger, for example, the right to freedom of expression and assembly had to be balanced with the fundamental freedom of movement of goods. The Court considered that circumstances were such as permitting Austrian authorities to benefit from a margin of appreciation to decide about a proportional derogation to the free movement of goods.29 In the Omega Spielhallen case, where German legislation prohibited games with ‘laser-guns’, the Court decided that Germany benefitted from a margin of

27 28 29

ibid para 125. Case C-283/11 Sky, 22 June 2012, not yet published. Point 60. Case C-112/00 Schmidberger [2003] ECR I-5659.

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appreciation from cultural reasons and admitted this legislation although it was in conflict with the freedom to provide services. The Court considered that the fundamental right to human dignity weighed heavier than freedom to provide services.30 In the recent Sky case the Court had to strike a balance between the freedom to conduct business stated in Article 16 of the Charter, and the freedom, stated in Article 11, to receive information and to promote pluralism of the media in the production and programming of information. The Court decided in favour of the latter fundamental freedom.31 After having analysed a few general questions about the application of the margin of appreciation in the fields where the Member States have conferred power to the European Union, we now turn to the question on the margin of appreciation of the Member States in areas under Union competence, but where the Member States still enjoy some decisional powers.32 We pointed initially in this chapter to the importance for the Union of the rule on conferral of power. That it may only act within the limits of the competences conferred upon it by the Member States in the Treaties and that powers not so conferred remain with the Member States. The Union competences vary depending on whether it is ‘supporting, coordinating or supplementary’, where they may not result in EU legislative acts; or it is ‘shared with the member states’, ie most fields of union activity, where Member States competence is pre-empted by Union legislation to the extent that Union legislation covers the field; or it is an exclusive policy, where the Union has total competence already before it has legislated. When the Union makes use of its competences it should respect the principle of subsidiarity,33 a principle that has some features in common with the doctrine of margin of appreciation. Both of them depart from the opinion that some questions such as emergency situations, culture, religion, social and economic policies of local interest, are of local interest and should in the first place be determined on a local level, but from a legal point of view they are different. The principle of subsidiarity has its origin in public law, more precisely in federal law, where conferral and distribution of power between different levels of government are central issues. The doctrine of margin of appreciation originates in public international law, or more precisely in a human rights context, and aims at assuring that individuals shall be guaranteed universal rights in spite of economic and social differences between states.

30

Case C-36/02 Omega Spielhallen [2004] ECR I-9641. Sky (n 28). 32 A caveat should be announced for those studying the English language version of the CJEU decisions, as the French expression marge d’appreciation has often been translated to discretion, something that to some extent hides the application of the doctrine. 33 Article 5(3) TEU. 31

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This superior aim of the doctrine is also valid in relation to Article 4(3) TEU, on national identity, although it may have some relevance for the application of the margin of appreciation. The Article states that: The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential state functions, including ensuring the territorial integrity of the state, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each member.

In accordance with the spirit of that Article, the Court found in Vivaio dei Molini Azianda Agricola Porro Savoldi, concerning a directive containing the principle of equality and transparency, that: En effet chaque Etat Membre est le mieux à même d’identifier, à la lumière de considerations historique, juridique, économique ou sociale qui lui sont propres, les situations propices à l’application de comportements susceptibles d’entraîner des endorses au respect de ces principes.34

However, in spite of those Articles above, the discretionary powers of Member States may be very reduced, even in an economic or social area, depending on the character of the EU legislative act. In the Joined Cases O.S., for example, the Court affirmed that Article 4(1) of Directive 2003/86 imposes on the Member States precise obligations, with clearly defined individual rights. It requires them, in cases determined by that directive, to authorize the family reunification of certain members of the sponsor’s family, without being left a margin of appreciation […].35

The margin of appreciation that Member States enjoy as to fundamental rights are, however, not so closely connected to how intensely an area is regulated by Union legislation. They may have wide discretion in economic or political matters in an area and yet have no margin of appreciation as far as fundamental rights assured to individuals are concerned. In the case Caves Krier concerning free movement of persons, Article 45 TFEU, the Court reminded that rights can only be restricted by the Member States in observance of the rule of proportionality, and it continued specifying limits to their margin of appreciation: […] the Court has […] already ruled that it is to the Member States to choose the measures likely to attain the objectives that they pursue in the field of employment. The Court has recognised that the Member States have broad discretion in exercising that power […]. However, the discretion which the Member States enjoy in matters of social policy may not have the effect of undermining the

34 Case C-502/11 Vivaio dei Molini Azianda Agricola Porro Savoldo, 4 October 2012, not yet published, para 42. 35 Joined Cases C-356/11 and C-357/11 O.S., 6 December 2012, not yet published, para 70.

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rights granted to individuals by the Treaty provisions in which their fundamental freedoms are enshrined.36

As soon as the Member States act within the broad areas of Union competences they should apply the Union concept of margin of appreciation. Article 53 and 52(4) of the Charter leads us to believe that they could base themselves on their own constitutional provisions of fundamental rights. Article 53 reads that ‘[n]othing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognized in their respective fields of application by Union law and […] by the Member States’ constitutions’; Article 52(4) adds that ‘the rights of the Charter corresponding to those in national constitutions shall be interpreted in harmony’. These provisions seem to indicate that a Member State enjoys a margin of appreciation authorizing it to apply the standard of protection of fundamental rights guaranteed by its constitution when that standard is higher than that deriving from the Charter, even if the Union has legislated in the field. This question was at issue in the Melloni case in an area where the Community had issued a framework decision. Such a conclusion could not be accepted by the CJEU. It would, according to the Court, undermine the principle of the primacy of EU law inasmuch as it would allow a Member State to disapply EU legal rules which are fully in compliance with the Charter where they infringe the fundamental rights guaranteed by that State’s constitution.37 The Court rules that Article 53 of the Charter confirms that, where an EU act calls for national implementing measures, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised.38 Consequently, the Member States’ freedom to make their own evaluations of when to apply the margin of appreciation in human rights matters is very narrow, and it does not matter if the area is densely regulated by precise Union rules. Whenever the Member States act within an area where there is compulsory Union law, they are committed to observe its principles of a human and fundamental right nature. As the ECJ already said in the ERT case: [W]here [national rules] do fall within the scope of Community law, and reference is made to the Court for a preliminary ruling it must provide all the criteria

36 Case C-379/11 Caves Krier, 13 December 2012, not yet published, paras 51 and 52. Cf Case 470/11 Garklans, 19 July 2012, not yet published, treats conditions to restrict freedom to provide services in Art 49 for reasons of public morals, etc. 37 Case C-399/11 Stefano Melloni v Ministerio Fiscal Judgment 26 February 2013, ECR 2013:107, not yet published, para 58. 38 ibid point 60; Case C-617/10 Hans Åkerberg Fransson Judgment 26 February 2013, ECR 2013:105, para 29.

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of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights the observance of which the court ensures and which derive in particular from the European Convention of Human Rights.39

Since the ERT case was decided the Amsterdam treaty has entered into force and the EU Charter of Human Rights has been included as binding EU law, situated at the top of its legal hierarchy by the statement in Article 6(1) TEU. However, the rights of the ECHR remain part of Union law in their quality of general principles, Article 6(3). The Court therefore referred to the Charter when it clarified, in the recent Hans Åkerberg Fransson case, that the fundamental rights of the Charter shall be respected when national measures are situated within the field of application of Union law: Les droit fondamantaux garanti par la Charte devant, par consequent, être respectés lorsqu’une réglementation nationale entre dans le champ d’application du droit de l’Union, il ne saurait exister de cas de figure qui ne relevant ainsi du droit de l’Union sans que lesdits droits fondamantaux trouvent à s’appliquer. L’applicabilité du droit de l’Union implique celle des droits fondamentaux garantis par la Charte40

Where a national measure falls within the scope of Union law, the CJEU has the power to examine its compatibility with the ECHR and the Charter, but on the other hand it has no power to examine the compatibility with the ECHR and the Charter of national rules which do not fall within the scope of Union law.41 Having examined the application of the margin of appreciation in the two situations, the first one where the CJEU’s power to evaluate its application is undisputable because of the presence of Union competence to act, and the second one where the Union shares competence with the Member States that still have some competence in regulating the substance of the field, we may simply conclude that in the third situation, where the Member States act outside the broad scope of Union competence, they are under the direct control of the ECtHR.

CONCLUSION

After this analysis of the nature and role of the margin of appreciation in the European human rights law, as it was first elaborated and applied by the ECtHR and successively adopted, applied and developed by the European

39

Case C-260/89 ERT [1991] ECR I-2964. Hans Åkerberg Fransson (n 38) para 21. Only French and Swedish texts available at present. 41 ibid para 22, and ERT (n 39) para 42. 40

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Court of Justice and the CJEU, it only remains to underline how much the two highest European courts are intertwined with each other in spite of their differences. United in their purpose, for a peaceful Europe respecting human rights, their dialogue has not resulted in a hybrid but in a satisfactory mechanism for the benefit of the individual. This dialogue takes place between two courts of a different nature. One has its origin in public international law, or rather in human rights law thinking; in principle leaving national sovereignty unimpaired, but with the right of individuals to file complaints to the court, which is provided with the power to scrutinize national legislation and with a mission to contribute to harmonizing national law with its case law. The other court in that dialogue has a legal duty to respect that harmonized law, but has its origin in public law thinking and the mission to serve like a constitutional court. Basing itself on the Union constitution, it controls the distribution of sovereign powers divided between the Member States and the Union and it reviews the balance between the Union institutions as well as assuring that Union and national legislation and administrative decisions are in conformity with fundamental rights. On the initiative of persons and national courts it may also annul Union decisions that infringe fundamental rights and check whether national legislations are in conformity with those rights. And, of importance for the future dialogue, this court bases its fundamental rights review on a charter of human rights and fundamental freedoms that comprise a much wider scope of rights than the European Convention. In addition, when evaluating the margin of appreciation and when prioritizing and balancing those rights this court must necessarily take consideration of wider political and social issues than the European Court of Human Rights.

6 Judicial Review in Sweden—Some General Observations Regarding the Case Law from the Swedish Domestic Courts KARIN ÅHMAN*

INTRODUCTION

I

N JUNE OF 2011 I presented a research paper regarding the nature and the extent of judicial review within the case law of Swedish domestic courts.1 The research, which was limited both to the period between 2000 and 2010 and to the case law of the administrative courts of appeal, the general courts of appeal, the Supreme Administrative Court and the Supreme Court, primarily dealt with cases where the Swedish Constitution (the Instrument of Government) and European law (EU-law and the European Convention on Human Rights (the ECHR or the Convention)) had been invoked. The main topic was the question of the relationship between, on the one hand, ordinary laws and other provisions and, on the other hand, constitutional provisions (stipulated by the Instrument of Government) and European law. In this chapter I intend to present some of my concluding remarks and reflections regarding this research and, more generally, the nature of judicial review in Sweden. However, initially I will provide a brief background description regarding the general conditions concerning judicial review according to Swedish constitutional law and some general remarks regarding the implementation of European law into the Swedish legal order.

*

Professor in Public Law at Uppsala University, Sweden. Karin Åhman, ‘Normprövning, Domstolskontroll av svensk lags förenlighet med regeringsformen och europarätten 2000–2010’ (2011) Norstedts Juridik. 1

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Over a long period of time the possibility (and thus the right) for the courts to exercise review over the conformity of ordinary laws and provisions with the Constitution was in fact unsettled within Swedish constitutional law. However, through a series of cases at the beginning of the twentieth century, whereas the courts actually engaged in the act of reviewing ordinary laws and other provisions in light of different provisions stipulated by the Swedish Constitution, the concept of judicial review, as a constitutional mechanism/tool, was established. Furthermore, for the present purpose it should also be noted that during this period the Swedish Constitution was, more or less, silent with regard to the protection of human rights. In fact, from an international perspective, the Swedish Constitution of 1809 was rather fastidious when it came to the protection of human rights. Naturally, the question of whether Swedish domestic courts where to be admitted an actual right to perform judicial review was intensely debated both among politicians and constitutional law scholars. Simultaneously, the courts continued to develop the case law concerning judicial review. Indeed, the courts were not immune to this debate. Rather, some convergences were struck between how the issue was discussed in the political and legal debate, on the one hand, and the attitudes of the courts towards judicial review, on the other hand. Hence, apparently influenced by the general opinion, the courts came to establish the so called ‘obvious-prerequisite’ (uppenbarhetsrekvisitet) as a yardstick for conducting judicial review.2 The premise was that the right for the courts to set aside ordinary laws or other provisions depended on whether the conflict, between, for example, ordinary laws and provisions of the Constitution, was ‘obvious’ (uppenbar) or not. Only in the former case did the courts have a right (or an opportunity) to set aside ordinary laws in favour of the Constitution. As already mentioned above, the Swedish Constitution of 1809 was rather poor with regard to the protection of human rights. As a direct consequence of this, the conception of judicial review within the case law of the courts related to quite different matters than the protection of human rights. One such case was the Lubeck judgment from 1934.3 In the period between 1935 and 1980, the courts continued, although cautiously, to review ordinary laws and other provisions in light of the Constitution and, the ‘obvious-prerequisite’ continued to have a significant impact on the courts’ willingness to set aside rules with respect to the

2 See for example NJA (Nytt Juridiskt Arkiv, The Supreme Court’s publication of decision) 1928:125. 3 NJA 1934:515.

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Constitution.4 However, in a rare case, the Supreme Court did in fact set aside an ordinary provision since it conflicted with the Constitution.5 Following the entry into force of the Instrument of Government of 1974, the protection of human rights was now explicitly guaranteed by Chapter 2 in the Constitution. However, these provisions, although framed as ‘rights’ and ‘freedoms’ for the people, were primarily addressed to the legislator. In other words, Chapter 2 of the Swedish Constitution of 1974 was not intended to be applicable in the courts. Furthermore, the extent of these rights was rather narrow. Consequently, the recognition of the human rights protection within the Swedish Constitution did not seem to have any significant impact on the nature nor the extent of judicial review in the Swedish domestic courts. Although one could sense some general attitude changes in the 1970s and 80s, the courts still seemed to prefer an overall cautious approach towards judicial review. According to Strömberg,6 who mapped out and analysed the so called ‘judicial review-cases’ between 1974 and 1988, the Supreme Administrative Court seemed to convey a more independent manner towards the legislator than the Supreme Court did. For example, Strömberg pointed out that the Supreme Administrative Court did in fact set aside provisions in seven separate cases, since these provisions, according to the Court, were found to be in direct conflict with superior law. Strömberg further noted that the same tendency could be discerned within the case law of the Courts of Appeals where the courts also seemed willing to set aside provisions to a wider extent than the Supreme Court. Finally, Strömberg also concluded that most of the cases where the question of judicial review was at hand related to provisions issued by the authorities or municipalities (and not, for example, laws issued by the parliament).7 As time went by, Chapter 2 of the Swedish Constitution of 1974 went through two important changes.8 First, from a substantive point of view, Chapter 2 was expanded to include more rights and freedoms. Second, the nature of the provisions stipulated by Chapter 2 slowly seemed to change character from a primarily non-operative nature to now becoming applicable in the domestic courts. However, the characteristic cautious approach towards judicial review displayed by the courts seemed not to take any particular interest of the strengthening measures regarding the protection of human rights following the gradual reformations of Chapter 2. The same could be said about the

4

NJA 1948 s 188 and NJA 1955 s 39. NJA 1954 s 532. 6 Professor of Public law at the University of Lund. 7 Håkan Strömberg, Normprövning i rättspraxis (1988) SvJT 9, s 121–143. 8 1973-års Fri- och rättighetsutredning; SOU 1975:75 and Rättighetsskyddsutredningen; SOU 1978:34. 5

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general attitude towards the ECHR. For example, in a few cases during the 1970s the invocation of the ECHR was regarded as inadmissible since the ECHR had not yet been incorporated or transformed into Swedish law!9

THE CODIFICATION OF JUDICIAL REVIEW INTO THE INSTRUMENT OF GOVERNMENT (1980)

From the 1980s onwards, several changes occurred which came to alter the nature and the extent of judicial review and its relevance in the courts. Two such changes were, on the one hand, the codification of judicial review through the introduction of paragraph 14 in Chapter 11 of the Instrument of Government10 and, on the other hand, that the ECHR, which until now was considered non-applicable in the courts, seemed to gain a wider acceptance among the courts. Hence, while the period before these changes was characterized as rather dull and uneventful—with regard to judicial review—the following 15 years would tell an entirely different story. According to paragraph 14 in Chapter 11, the courts or the administrative agencies (the authorities), were entitled to refuse to apply a rule if the rule was considered to be non-compatible, and thus in conflict, with a rule of a higher constitutional standard. However, if the rule in question was issued by the Government or the parliament, the refusal to apply such rule depended on whether the incompatibleness was considered to be obvious (uppenbar) or not. Furthermore, the introduction of this rule also spurred a wider debate about the role of the courts and whether it strengthened the position of the courts vis-à-vis the legislator or, if the codification of judicial review rather seemed to have weakened the role of the courts. According to the official report which preceded the introduction of it, the ‘obviousprerequisite’ meant that the scope of judicial review would likely be reduced in situations where the wording of provisions in the Constitution or any other superior rule was imprecise. In other words, the codification, and thus the recognition, of judicial review in the Swedish Constitution had the somewhat paradoxical effect since it, at least from a practical point of view, came to limit the extent of judicial review in the courts because the courts, bound as they were by the Constitution, could no longer develop the meaning of judicial review without observing Article 14 in Chapter 11. However, in the end, what came to fundamentally alter the nature of judicial review in the Swedish domestic courts was not the introduction of this new rule, but rather the fact that Sweden was repeatedly convicted for violations of the human rights protection guaranteed by the ECHR. 9 NJA 1973 s 423, AD 1972 nr 5 and RÅ 1974 s 121, the so called ‘transformation judgments’ (transformeringsdomarna). 10 SOU 1978:34.

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A considerable amount of cases meant that the ECHR—which by this time still had not been incorporated nor transformed into Swedish law—had an actual impact on the application and interpretation of Swedish national law. Hence, the courts began to adjust to the method of interpreting Swedish law in light of the ECHR and, while Sweden continuously was found in breach of the ECHR (by the Court in Strasbourg), its relevance and acceptance further increased within the domestic courts and among lawyers. Thus, the focus now shifted from whether the ECHR ought to be applicable at all, to how the ECHR ought to be applicable in the domestic courts. Moreover, some of these cases where Sweden was found in breach of the ECHR seemed trigger the transformation process of the ECHR into Swedish law. As stated above, Swedish domestic courts had already begun to refer to the ECHR prior to its formal incorporation into Swedish law. For example, in a case from 1988,11 which concerned the matter of separation of children from their parents according to Swedish law12 the Supreme Administrative Court referred both to Article 8 of the ECHR and to the case law of the European Court of Human Rights (ECtHR), in order to establish whether the Swedish authorities had acted in accordance with the law (LVU). Interestingly enough, one of the cases which the Supreme Administrative Court referred to was Olsson v Sweden where Sweden was found in breach of Article 8 of the ECHR.13 However, while Olsson v Sweden was relevant for the Courts’ assessment, the outcome in Olsson v Sweden did not play a critical role for the Courts’ final judgment on whether the authorities had acted in accordance with Swedish law (LVU) or not.

THE ENTRANCE OF EUROPEAN LAW (1995)

The Swedish entry into the European Union (EU) and the formal incorporation of the ECHR into Swedish law was the starting point for a rather dynamic development regarding the nature of judicial review in the Swedish domestic courts. In a more general sense the jurisprudence seemed to increase its overall importance which meant that, in the words of Nergelius, ‘more and more critical political decisions were made by the courts and other judicial agencies rather than, as previously, by political bodies such as the government and the parliament’.14 In 1997 the Court of Appeals delivered one of the earliest judgments where the application of an ordinary rule was considered incompatible

11 12 13 14

RÅ 1988 ref 79. Lag (1990:52) om särskilda bestämmelser om vård av unga. Olsson v Sweden, judgment of 24 March 1988. Nergelius, Joakim, Maktdelning och politikens judikalisering, SOU 1999:58.

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with the Constitution by references to Article 14 in Chapter 11.15 The case concerned prosecution over a breach of a law forbidding certain political uniforms and the constitutional issue at hand were whether the application of such law would inflict on the right to free speech according to Chapter 2 of the Instrument of Government. A year prior to this judgment, the Supreme Administrative Court had also given EU law the primacy over a conflicting Swedish law.16 This case concerned the Swedish regulation regarding public procurement and whether this regulation was compatible with an existing EU directive which inter alia afforded individuals a right to legal review regarding public procurement decisions. The Supreme Administrative Court applied the EU directive rather than the Swedish regulation and stated that since the wording of the directive was both clear and unconditional there was no need for the Court to ask the European Court of Justice (ECJ) for a preliminary ruling. The same year, the Supreme Court had to deal with a similar issue. However, in this case, the Delecta judgment,17 the Supreme Court decided to ask the ECJ for a preliminary ruling. The issue concerned was whether Swedish regulations regarding trial costs were compatible with EU law. In its preliminary ruling, the ECJ stated that the Swedish regulations were in fact incompatible with EU law. However, the Supreme Court did not agree with the ECJ. Rather, the Supreme Court stated that the ECJ-ruling on which the ECJ had founded its decision was not relevant to the present case. Thus, there was no incompatibleness between Swedish law and EU law. Altogether, from 1995, the ECHR and EU law seemed to gain further importance and greater impact within Swedish law. However, this came at a price. The case law from this period reveals that while European law increased its relevance within the Swedish legal order, the Swedish Constitution was apparently weakened. This is true both with regard to the application of, for example, Chapter 2 and Chapter 11. And, as the ‘obvious-prerequisite’ goes, the courts, in the rare cases where it was actually applied, did not seem to uphold such prerequisite towards European law whatsoever. How then did judicial review develop during the 2000s?

JUDICIAL REVIEW DURING 2000–2010: CONCLUSIVE REMARKS

Issues Initially, the case study intended to address four main questions. First, had the nature of the Swedish judicial review cases changed following the 15 16 17

RH 1997:47. RÅ 1996 ref 50. NJA 1996 s 668.

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influence of European law? Second, had the domestic courts’ reasoning, despite their restricted opportunities to actually perform judicial review, become clearer in their judgments and had their willingness to perform judicial review increased? Third, had the courts become more willing to set aside rules? Finally, what kind of cases and which type of legal issues seemed trigger the courts to perform judicial review? Among the nearly 600 cases which were analysed and presented in the study, there was nothing significant pointing towards any substantial changes following the Europeanization of Swedish law. On the contrary, the study indicated that neither the extent nor the reasoning of the courts had changed, at least not with regard to judicial review according to Chapter 11. Rather, the courts seemed to prefer a somewhat Europeanized judicial review method and model for reasoning when reviewing Swedish laws and other rules in light of European law. Consequently, the study included only a few rare cases where the courts did in fact explicitly set aside rules on behalf of the Constitution or any ordinary Swedish law. Moreover, the general courts mostly had to deal with issues concerning non-retroactivity of laws and conflicts regarding Chapter 8 of the Constitution which regulates the legislative/regulatory power, while the administrative courts primarily had to deal with issues regarding non-retroactivity of laws. Finally, what is worth noting is that among all of these cases where courts set aside a rule, never did the courts do so by referring to the so called ‘obvious-prerequisite’ (uppenbarhetsrekvisitet)! However, the constitution did in fact have some relevance in a few more cases. Although the invocation of the Constitution did not always lead to the setting aside of subordinate laws and other rules, the Constitution had an impact while interpreting such subordinate provisions. In this regard, the study shows that the Supreme Court and the administrative courts of appeal were most keen to apply the Constitution in this way. In cases where the Constitution and the ECHR were simultaneously applicable, the courts seemed to manage them by using different methods. For example, while the courts, when dealing with provisions in the Constitution, did uphold the method for judicial review stipulated by Chapter 11, the courts seemed to prefer a different method when dealing with articles protected by the ECHR. This was especially the case in the Åke Green-judgment which concerned a minister whom, in one of his sermons, had expressed some rather derogatory remarks regarding homosexuals.18 The question was whether a conviction for hate speech would violate his right to free speech which were protected both by the Constitution and the ECHR. According to the Supreme Court, a conviction would not implicate a violation of the Constitution (the conflict was not considered obvious).

18

NJA 2005 s 805.

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However, regarding the ECHR the Supreme Court argued that since a conviction would probably lead to a breach of Sweden’s commitment to the ECHR, the minister was acquitted. Another central question concerned the nature and the extent of the case law relating to the ECHR and/or EU law (European law-related cases). What kind of cases and which types of legal issues did they include? Was there any substantial difference between these cases (European law-related cases) and the judicial review case law relating to purely national rules? One initially, although not surprising, observation regarding EU law was that EU law-issues were, for the most part, raised within the jurisdiction of the administrative courts (on both levels). This was the situation throughout the whole case study. Furthermore, the administrative courts were most welcoming towards the idea of requesting the ECJ for preliminary rulings and, consequently, most willing to set aside Swedish rules in favour of EU law. Cases relating to the ECHR were most frequent within the case law of the administrative courts of appeals and the general courts of appeals. In 19 of 47 cases the Supreme Court applied the ECHR in such a way that it had a concrete impact on the interpretation of Swedish law. In some cases though, the ECHR was directly applicable; this was especially the case regarding Article 13 of the ECHR. The majority of the cases however, concerned criminal and procedural issues. The Supreme Administrative Court dealt with the ECHR in 25 of 153 cases. Only in eight of these 25 cases did the Supreme Administrative Court recognize the ECHR in such a way that it came to influence the interpretation of Swedish law. Most frequent was the application of Article 6 ECHR. Was is possible to distinguish any clear patterns regarding the European law-related case law and, any differences in relation to the judicial review case law concerning national rules? Well, in those rare cases where the Swedish Constitution was in fact considered applicable, the courts displayed a rather tentative approach and appeared to be quite loyal to the legislator. However, the same could not be said regarding the case law relating to European law. It appears as if the importance of legislative history (travaux préparatoires, tp) is decreasing as the influence of European law is getting wider. When the courts did refer to such legislative history they did so while trying to determine the meaning of European law (from the perspective of the legislator). The study also revealed an increased willingness among the courts to apply European law, including European case law, more directly. Did the courts treat EU law and the ECHR any different? There is one important difference which is worth mentioning. Overall, the courts seemed more loyal towards the case law streaming from the ECJ than from the ECtHR. However, this loyalty towards the ECJ did not always bring the courts to actually set aside Swedish law by referring to such case law. Rather, the courts displayed a general adherence to the ECJ without altering

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its level of judicial review. It should be noted though, that regarding Articles 6 and 13 of the ECHR, the courts tended to increase its adherence to the case law of the ECtHR. How then did the courts argue in their judgments and which methods did the courts use? Well, in this regard, the study paints a rather shattered picture. Both the methods used by the courts and the arguments put forward in their judgments varied immensely between the cases. And, while dealing with the Constitution the courts scarcely referred to the ‘obviousprerequisite’, rather, such reference shone with its absence. The same could be said about the courts dealing with the European law-related cases. In those cases where the courts set aside Swedish law in favour of EU law (without a prior request for a preliminary ruling), the courts would argue that following the case law (of the ECJ) ‘it may be deemed to comply’ or that ‘it may be regarded difficult to’. For example, in one such case where the Supreme Administrative Court found an EU directive to be directly applicable, the Court stated that ‘the application of the Swedish rules in question would lead to a result which would be incompatible with the directive’.19 Thus, the Swedish rules were set aside. Among those cases where Swedish law were interpreted in light of EU law (fördragskonform tolkning), the courts usually interpreted Swedish law in light of EU directives (direktivkonform tolkning). For example, in one case where Swedish law, contrary to a relevant EU directive, seemed to lack sufficient clarification regarding certain issues, the Supreme Court held that ‘the rule had to be interpreted in accordance with the directive and applicable EU law.’20 In another case, the Supreme Administrative Court, referred to the Swedish legislator as the basis for the Court’s interpretation of the rule in question. The Court held that ‘additionally, given the legislative history it seems as if the above specified viewpoint, according to EU law, may be also applicable regarding Chapter 3, paragraph 11 a ML’ (the Swedish law).21 Regarding the case law concerning the ECHR, the courts used the following expressions in order to interpret Swedish law in light of the ECHR (konventionskonform tolkning) or to establish that Swedish law was regarded as incompatible with the ECHR. However, rarely did the courts explicitly consider Swedish law to be incompatible with the ECHR, rather, this was expressed very subtly. Furthermore, in some cases the courts had to apply Articles of the ECHR directly since, at least in most of these cases, Swedish law lacked any counterpart. For example, this was the case when the Supreme Court had to deal with the question regarding entrapment and its compliance with Article 6 of the ECHR.22 Since this issue was not settled 19 20 21 22

RÅ 2002 ref 14. NJA 2003 s 163. RÅ 2005 ref 11. NJA 2007 s 1037.

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within Swedish law, the Supreme Court stated that ‘in the present case, the Supreme Court therefore have to review this issue with the respect to the case law of the ECtHR’. A similar method was used by the Supreme Court in accordance with Article 13 of the ECHR when the Court had to decide whether the plaintiff would be awarded damages following an alleged violation of the right to a fair trial within a reasonable time. So, how did the courts reason and which methods did they use in those cases where the ECHR was indeed relevant for the courts’ assessment but without having a crucial impact on the courts’ final judgment? Let me begin by referring to the Supreme Court. In many cases the Supreme Court merely referred to the ECHR without actually awarding it any substantial significance.23 In some cases however, the Supreme Court did try to link its argument with the ECHR and the case law of the ECtHR.24 In a few cases the Supreme Court also interpreted Swedish law in light of Article 6 of the ECHR without, seemingly, any substantial effects on the outcome.25 Regarding Article 13 of the ECHR and the question of whether the Article was applicable or not, the Supreme Court simply stated that for the moment, this issue was not settled by Swedish law. However, in the present case, which concerned an action for damages between individuals (and not between an individual and the State), the Supreme Court held that ‘to award individuals damages towards other individuals on the grounds of the ECHR is not possible’. In 2002 the Supreme Administrative Court had to decide whether resegarantinämnden could be regarded as a court in accordance with the ECHR.26 Following an overall assessment, the Supreme Administrative Court held that ‘its composition and its function (…) was designed in such a way that there was enough reason to consider resegarantinämnden equivalent to a court’. In the Volvo judgment from 2000, the question was whether the Swedish procedures regarding tax surcharge, were compatible with several rule of law elements guaranteed by Article 6 of the ECHR.27 The Supreme Administrative Court held that while Article 6 of the ECHR was indeed applicable in the present case, the Swedish procedures regarding tax surcharge were consistent with the ECHR. For example, the Court noted that a decision had been given within a reasonable time in accordance with the criteria stipulated by the ECHR. Finally, a rather interesting case concerned Article 8 of the ECHR and the question of whether it was possible to classify certain files by referring directly to Article 8.28 According to the

23 24 25 26 27 28

See for example NJA 2008 s 893 and s 963. See for example NJA 2002 s 624 and NJA 2009 s 280. See for example NJA 2004 s 393. RÅ 2002 ref 104. RÅ 2000 ref 66. RÅ 2006 ref 87.

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Supreme Administrative Court this was not possible since ‘with respect to the regulation in the Freedom of the Press Act confidentiality could not be based directly on Article 8 of the ECHR’.

Other Reflections The study included cases where the courts performed some form of judicial review vis-à-vis the Constitution or European law. Furthermore, the case study reveals that the courts, rather than highlighting or clarifying possible conflicts, strived for solutions where substantive differences could be transcended by varied interpretation methods. Hence, explicitly expressed conflicts between rules on different constitutional levels or of separate legal systems were quite few. Still, the fact that judicial review has increased since the 1990s could be traced to several different factors. One such factor is the Europeanization of the Swedish legal order. As a direct consequence of this process the legal matter with which the courts currently have to deal with has indeed increased. In other words, there is a plurality of legal sources within the same jurisdiction, each of which offers its own solutions and answers on the same legal issues. Consequently, this plurality of rules is inevitably bound to offer more colliding arenas between rules which, in the end, spurs the need for judicial review. Another factor which has increased the extent of judicial review is the overall strengthening of the human rights protection. This is the case not only within the confines of the legal space but also in society as a whole. Finally, since the very structure of the European law system requires that the rights and the freedoms of individuals to be directly applicable in the domestic courts, the influence of European law has undoubtedly brought more actions against the state, which in turn has forced the courts to perform judicial review to a much wider extent than before. Is there any clear and coherent answer as to the question of how the courts went by while performing judicial review? As already indicated above, the courts used different methods depending on factors such as the issue at hand and whether the issue included EU law or the ECHR. Hence, the answer is, generally speaking, no. However, despite the rather fragmented picture, it is nonetheless possible to discern some general tendencies. Mainly this was the case regarding the so called ‘watchwords’ (värdeord). By this I mean those words or expressions which the courts used in order to establish that, in a given case, there was a conflict between different rules or that Swedish rules were compatible with superior norms (EU law and the Constitution, for example). The use of these words varied a lot between the courts and the different types of cases. For example, the so called ‘obviousprerequisite’ was hardly mentioned by the courts. Another such expression, coined by the Supreme Court over 10 years ago and, so far only referred to

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by the Supreme Court, is the highly debated notion of ‘clear support’ (klart stöd). This expression was enacted within the case law of the Supreme Court regarding the ne bis in idem rule according to Article 4 of Protocol 7 of the ECHR. The main question has been whether the Swedish parallel system with tax surcharges and criminal sanctions constituted a violation of the right to not be convicted for the same offence twice. By referring to the notion of ‘clear support’, the Supreme Court has held that Swedish law is compatible with the ECHR. Still, the Supreme Administrative Court has also dealt with the ne bis in idem rule without referring to the ‘clear support’ expression. Presently however, through a series of fresh cases, the Supreme Court is seemingly looking for a revised ‘clear support’ doctrine. Finally, regarding EU law, the courts reasoned in light of whether a certain application or interpretation would have a repressive effect on the general impact of EU law. For example, the courts discussed how their decisions would affect the free movement of people and goods, etc. How did the courts approach the various sources of law? For example, the study shows that the Supreme Court was cautious about setting aside Swedish rules before asking the ECJ for a preliminary ruling. The same was however not the case with the Supreme Administrative Court nor the administrative court of appeals. Rather, these courts, when setting aside Swedish law in favour of EU law, applied EU law more directly by referring to the case law of the ECJ or the wording of the relevant EU regulations (eg EU directives). Another interesting observation concerns the extent to which the courts referred to the legislative history of the Swedish rules at hand. Unsurprisingly enough the courts approached the legislative history as a means to complement the interpretation of relevant European law rules and regulations. This was particularly the case regarding EU law. However, the study also shows that in situations where the reasoning in the legislative history proved incompatible with the common interpretation (that is: the interpretation delivered by the ECJ or the ECtHR) regarding European law or otherwise to be obsolete, the courts consistently ignored the legislative history. Finally, regarding the application of the Constitution, the courts often turned to textual or systematic interpretation methods instead of referring to relevant case law or the legislative history. Furthermore, the study also discussed the consequences of the courts’ decisions to set aside Swedish rules. In situations where the courts stood faced with the fact that a rule was incompatible with the Constitution or European law, the courts went on to discuss what impact this would have on the application of the rule in question. A natural consequence, which also follows directly from the wording of paragraph 14 in Chapter 11, would be that the courts refused to apply such incompatible rules. The courts did so also in situations where Swedish rules were found incompatible with European law. However, there were also situations where

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the courts, instead of refusing to apply such incompatible rules, applied European law as a means to ‘fill the gaps’ in those (incompatible) rules, thus reaching the same conclusion as if European law had been solely and directly applied. This method was especially used by the courts in situations where certain EU directives or articles under the ECHR (eg Article 13) were present. However, the courts also seemed to prefer this method while dealing with articles under the EU Treaties. Finally, in those situations where the courts considered Swedish rules to be (more or less) in compliance with European law (or the constitution), the courts nevertheless, by the means of interpretation, gave such rules a revised, though not altered, ‘Europeanized’ content.

CONCLUSIONS

In my research I also discussed, on a more general note, possible consequences of an extended and strengthened judicial review with regard to the role and the constitutional status of the courts. One first reflection was that, since the courts are forced to deal with rather sensitive and critical policyrelated issues, more and more attention is nowadays directed towards the courts and their judgments. In other words, the heart of policy disputes has gradually changed its arena which in turn has substantively altered the nature of the arguments put forward before the courts (and thus in the political debate). This leads me to my second reflection. Given this development, which indeed is spurred by the Europeanization of the Swedish legal order, where the courts are, more or less, cornered with debates and disputes which in principle concerns traditionally political issues, the demands and the expectations on the judges are shifting. Thus, the indistinct substantive nature of the disputes and the issues, characterized by both law and politics but not purely one or the other, which the courts are inevitable bound to resolve, renders the function of the judge slightly ambivalent (to put it mildly). Furthermore, the role of the parliament (riksdagen) and the parliamentary system in general (both central parts of the Swedish constitutional law jurisprudence) has not gone unmarked by the Europeanization process. Obviously, the EU membership as such has contributed considerably to the transfer of power from the political sphere to the courts and other forums. Thus, as the direct consequence of this process, where the legislator is gradually delivered of its regulatory power and influence, the courts are increasingly faced with the task, not only to settle sensitive policy issues, but also to act as, albeit involuntary, legislators (however, if the legislator is displeased with the decisions of the courts (and if European law so permits), the legislator has the power to correct ‘bad’ judgments).

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However, there are also other factors which, besides the EU membership, have brought the influence of the legislator into slow decay. For example, many of the issues which the courts are currently faced with were not subject to the legislator’s interest previously. The study presented quite a few such cases. Furthermore, given the rapid developments within several legal areas, the legislative history tends to ‘age’ considerably sooner today than say 15–20 years ago. In other words, the legislative history does not appear to have the same relevance (as a source for interpretation of laws and other rules) today as before. However, there are of course other factors which have equally contributed to the lowered importance of the legislative history in general. Finally, with regard to EU law (eg regulations and directives) the courts are encouraged to, at least primarily, consult EU law material rather than the Swedish legislative history and other similar documents produced by the Swedish legislative process. Naturally, this will in turn lead to an overall reduced influence of the Swedish legislator. Still, as already noted above, although we are currently witnessing a transfer of power from the legislator to the courts, the former still has (at least in principal) the power to recapture its regulatory capability/power (by issuing new rules). However, to refuse to disapply Swedish rules on the basis of so called ‘institutional competence’—that is that the issue at hand is institutionally (and according to the Constitution) a subject for the legislator and not the courts—is not, with respect to European law, in all cases a legitimate reason not to disapply Swedish rules. Indeed the Swedish parliament (riksdagen) possesses the primary legislative power and competence (at least according to the Swedish Constitution) but, given the EU membership and the Europeanization of the Swedish legal order, the courts have undoubtedly been given increased powers which cannot be ignored. In the end, perhaps the problem is not as much that this transfer of power has already taken place within the Swedish constitutional legal sphere, but rather that the Swedish Constitution continuously refuses to explicitly admit its mere existence. Admittedly, this may come as a comfort; the role of the courts seem to vary depending on the issue at hand. The study shows that within disputes concerning human rights, the courts are trusted with a significant task which renders their role quite important. Moreover, what is discussed is whether the courts, in close cooperation with the courts in Strasbourg and Luxemburg, ought to shoulder the task of safeguarding the special features (the national identity) of the Swedish legal order. Indeed, this is a complex and politically rather sensitive issue. However, at the moment the Swedish Constitution does not (at least not explicitly) provide the courts with such room for manoeuvre. Still, many scholars do consider that the courts, at least while dealing with EU law, ought to be entrusted with judicial mechanisms in order to review the conformity of EU law with certain, more or

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less essential, features of the Swedish legal order. At the end of the day, this ‘reciprocity’ between national law and European law might be inevitable if the European project wishes to endure the uncertain twists and turns of time. The increase in judicial review, especially with regard to cases concerning European law, has rendered the question of ‘what is the law?’ quite uncertain since the answer cannot always be found by detouring to the safe grounds of ‘traditional legal method’. As it seems, the determination of the law can no longer (if it ever were) be confined to mere technical considerations but rather, the question of what the law is and is not, currently implicates a bunch of other factors which in turn leaves the courts (and the single judge) at unmarked crossroads. For example, Swedish case law is no longer as authoritative as before. Instead, the general discussion regarding the role and status of the courts, concerns concepts such as loyalty and servility. The central questions thus seem to be aimed at highlighting whether the courts are, or ought to be, loyal (and if so towards whom?) and whether the courts are or could be considered servile towards European law. These questions and concepts occupy the centre of the current developments within and between the Swedish and the European legal order. Should the courts stand guard by the frontiers and protect the interests of the Swedish legal order, or should the courts rather act as marionettes and thus pave the way for the full-scale realization of the European law project? Well, since the courts are expected to be loyal, on the one hand, towards the Swedish legislator and the core values of the Swedish Constitution (thus the values of the Swedish people) and, on the other hand, towards the European legislator, this task of choosing loyalty is quite delicate. However, if the European law project is to be regarded as legitimate, its expansion and further development has to provide the conditions and opportunities for the domestic courts to, when deemed necessary, detour to the interests of the states. Finally, there are two quite interesting events which ought to be addressed with regard to the future (constitutional) developments concerning the Swedish courts. First, the reformation of the Swedish Constitution, which entered into force in January 2011, inter alia led to the removal of the so called ‘obvious-prerequisite’ in the Swedish Constitution. In addition, Chapter 2 of the Constitution, regarding the human rights protection, was extended (to include more rights and freedoms) and the role of the courts was strengthened. Furthermore, the EU membership was explicitly expressed in the Constitution. Second, the Treaty of Lisbon entered into force in December 2009 which, inter alia, stipulated that the Charter of Fundamental Rights (EU Charter) now became binding upon (most of) the Member States while acting within the sphere of EU law. Of great interest here is inter alia that the EU Charter consists of several rights which are

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not guaranteed by the Swedish Constitution or the ECHR. Hence, we are likely to expect even more judicial review cases concerning human rights in the domestic courts. Furthermore, given the substantive nature of the EU Charter it might also became a vessel/mechanism for the actual application of other, not yet incorporated international law treaties, such as the Convention of the Rights of the Child (CRC). The study shows that so far, the courts consistently refuse to apply such ‘non-incorporated’ treaties. However, the future will tell whether this strictly dualistic approach displayed by the courts will stand tall towards the tides of an increasingly pluralistic Swedish legal order.

7 EU Accession to the European Convention on Human Rights—the Creation of a European Legal Space for Human Rights? ERIK WENNERSTRÖM*

INTRODUCTION

T

HE LISBON TREATY created not only a legal basis, but also a legal obligation for the EU to accede to the European Convention on Human Rights (ECHR) and its judicial system.1 The conditions for the accession of this non-state to the Strasbourg system had been created through the ratification of Protocol 14 to the ECHR on 1 June 2010.2 The Lisbon Treaty also made the EU Charter on Fundamental Rights binding for all Union institutions and bodies, as well as for Member States when implementing and exercising EU law. EU legislation that violates fundamental rights that are guaranteed by the Charter, that first and foremost reinforces the same rights found in the ECHR, can, through preliminary referrals by national courts, be ruled upon by the Court of Justice of the European Union (CJEU). These two facts—accession and the Charter—represent the end of a long journey that started with the case Internationale Handelsgesellschaft

*

Juris Doctor, Director-General for the Swedish National Council for Crime Prevention. See Art 6(2) TEU and Protocol 8 to the TEU. 2 Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention, signed in Strasbourg, 13 May 2004. The amendment therein to Art 59 ECHR makes EU accession possible, although the EU is not a state. 1

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in the Court of Justice in 1970 and the starting point of a new journey.3 If that journey initially took slow and narrow routes, by the turn of the Millennium it was following the full force of European integration, enthusiastically cheered by the generation of European politicians that also engineered the later capsized draft European Constitution that preceded the Lisbon Treaty. Whether the enthusiasm over EU accession to the ECHR system and its powers of attraction remains as strong today, a decade and a financial crisis later, will be demonstrated in the final phases of negotiations and ratifications. For the most part of EU and Council of Europe parallel development, Strasbourg has held the normative and value prerogative thanks to its court and the ECHR, while Brussels has been the political and economic engine of integration. As the process started for EU accession to the ECHR, however, the Strasbourg Court system faces major challenges related to the Court’s inability to handle the cases subjected to it within a reasonable time, while the EU, thanks to the Charter, has the option of creating its own legal space for human rights, should it so wish.4 The advent of the EU Charter is therefore both alluring and disturbing in the greater picture—it brings the substantive rights of the ECHR into a broader and more efficient judicial context than the Strasbourg system, but it also raises the question: will it make the ECHR superfluous for the EU and its Member States?5 On 17 January 2011, the Court Presidents Costa and Skouris issued a joint communiqué, signalling the start of the EU accession negotiations, underlining both the willingness and ability of the two courts to cooperate to the extent necessary in the new landscape of legal control of human rights obligations in Europe, now emerging.6 If the Strasbourg Court succeeds in reforming itself into an efficient judicial system,7 then this landscape may develop into both a comprehensive and in many parts seamless system, with two courts providing combined protection of individuals, into one European legal space for human rights. If not, then we could be

3

Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1161. Currently, the balance of cases in the ECtHR exceeds 150 000, bringing an estimated case flow close to 10 years. See Council of Europe fact sheet Protocol 14—The Reform of the European Court of Human Rights, 2010, and Press Release of the Ministry of Justice in Sweden of 1 June 2010 entitled A More Efficient European Court. 5 See J Polakiewicz, ‘EU Law and the ECHR: Will EU Accession to the European Convention on Human Rights Square the Circle?’ (paper) in Fundamental Rights in Europe: A Matter for Two Courts (Oxford, Oxford Brookes University, 2013) 3 et seq. 6 See Joint communication from Presidents Costa and Skouris of 17 January 2011, www.echr. coe.int/NR/rdonlyres/02164A4C-0B63-44C3-80C7-FC594EE16297/0/2011Communication_ CEDHCJUE_EN.pdf. 7 With the support of the Council of Europe Member States expressed particularly in the Interlaken Declaration, of 19 February 2010, and the political and economic support that EU accession means. See www.coe.int/t/dghl/standardsetting/conferenceizmir/INTERLAKEN%20 DECLARATION%20final_en.pdf. 4

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witnessing the division of Europe into two parallel systems for human rights protection.8

THE NEGOTIATION PROCESS—INTRODUCTION OF A CO-RESPONDENT MECHANISM

Once the legal preconditions were in place, all relevant EU institutions—the Council of Ministers, the European Council, the European Parliament and the Commission—emphasized the importance of a rapid accession process. On 19 May 2010, the European Parliament adopted a resolution on the institutional aspects of the EU’s accession to the ECHR.9 The Council of Europe Parliamentary Assembly (PACE) is also following the accession process carefully. In order for the EU to accede to the ECHR, an accession agreement is required between the EU and the Council of Europe. Such an agreement shall, according to the Lisbon Treaty, be adopted by consensus of the Council, be approved by 2/3 of the European Parliament and then ratified by all EU Member States. The CJEU has also been asked to give its opinion on the accession agreement.10 The agreement must also be ratified by all 47 Member States of the Council of Europe, giving each EU Member State a double role in the accession process, one as EU Member State and one as High Contracting Party to the ECHR. On 4 June 2010 the Commission was given a mandate from the Council of the EU to negotiate the Accession Agreement (AA) on behalf of the EU and its Member States.11 The Commission’s negotiating mandate covers the conditions for EU accession to the ECHR as well as existing and future protocols to the Convention. The Commission shall, in accordance with its mandate, continuously consult with the EU Council working group on fundamental rights, civil rights and free movement of people (FREMP). The Council of Europe is represented by the Steering Committee for Human Rights (CDDH). The negotiations were officially launched on 7 July 2010 in Strasbourg. The talks between the parties were initially held between the Commission and an informal working group under the CDDH (CDDH-UE) which has been commissioned by the CDDH to design proposals for treaty solutions for the accession.12 Having concluded its mandate after eight 8

See J Polakiewicz (n 5). See P7_TA-PROV(2010)0184. 10 Similar issues, but under a different EU Treaty, were analyzed in Opinion 2/94 [1994] ECR I.1759. 11 The negotiating mandate was adopted by the Council of EU on 4 June 2010 (see doc 10630/1/10 REV 1) on the basis of document 6180/10 Accession of the European Union to the European Convention on Human Rights of 8 February 2010. 12 CDDH-UE consisted of 14 members, seven from EU Member States (Finland, France, Germany, Latvia, the Netherlands, Romania and the United Kingdom) and seven from other Member States of the Council of Europe (Armenia, Croatia, Montenegro, Norway (chair), 9

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meetings, the role of the CDDH-UE was taken over in early 2012 by a committee of all Council of Europe Member States, ie all High Contracting Parties to the ECHR, and the EU represented by the Commission, the ‘47+1’ committee, for which five sessions were scheduled.13 The legal issues that have received most attention in the negotiations concern the question of the so-called co-respondent mechanism (CRM), a new function under the ECHR that would permit the EU to enter proceedings before the Strasbourg Court, primarily when the alleged violation implicates an EU Member State, acting under EU law, and not the EU and its bodies as such.14 The requirement that a particular co-defendant mechanism is established for cases where the EU indirectly bears responsibility for a complainant addressed against an EU Member State is evident from Protocol 8 to the Lisbon Treaty. The situation likely to give rise to this situation is where an individual brings an action against an EUMS at the Strasbourg Court because the EUMS has acted in a way contrary to the ECHR, while implementing EU legislation that leaves no room for alternative action in the context of national implementation—typically a regulation, which the EUMS cannot fail to implement without violating EU law and its duty of loyalty. It is in this situation that the CRM would enable the EU to intervene at the EUMS’ side, and, if a violation is established, share responsibility for the violation in the form of damages and, above all, by regulatory corrective measures.15 It is also in this context that we find the question of the CJEU’s exercise of its internal responsibilities for review of EU legislation in relation to the Treaties, including the Charter. Since this review, in part, depends on the national courts’ willingness to submit requests for preliminary rulings, there is no guarantee that the act which forms the basis of an alleged violation

Russia, Switzerland and Turkey), negotiating with the EU represented by the Commission. To the meetings of CDDH-UE, a representative of the Registrar of the ECtHR and an observer of the Council of Europe Committee on Public International Law (CAHDI) were also invited, a practice which has continued in the ‘47+1’ format. Documentation from the negotiations is available at www.coe.int/t/dghl/standardsetting/hrpolicy/cddh-ue/cddh-ue_documents_ EN.asp. 13 The basis for the negotiations was the draft legal instrument produced by the 7+7 format, document CDDH-UE (2011) 16 and its three elements: a draft accession agreement (AA), a draft explanatory report to the accession agreement, and draft amendments to the rules of the Committee of Ministers of the Council of Europe. It is the Committee of Ministers that ultimately decides, having obtained the Parliamentary Assembly’s opinion, on the adoption of a final text and opens the accession treaty for signature. 14 Naturally, the EU will, as a High Contracting Party, be under the Court’s control for direct, causal violations of the ECHR as well, like any other High Contracting Party. Should the EU’s violation stem from correct implementation of the EU treaties, then the CRM may be activated by EUMS that are the ‘legislators’ in this situation. 15 See X Groussot, T Lock and L Pech, ‘EU Accession to the European Convention on Human Rights: A Legal Assessment of the Draft Accession Agreement of 14th October 2011’ (2011) Fondation Robert Schuman, European Issues 218, 7 et seq and 11 et seq.

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in a case that, after EU accession, is brought to Strasbourg has been the subject of such a prior review in the CJEU. The possibility that national legal systems have to correct violations by the obligation to exhaust domestic remedies does not work in the EU case, as the preliminary ruling is not a remedy in the traditional sense and furthermore is an instrument outside the realm of any party to a case; it is the individual national court that possesses this instrument. Linked to the requirement of a co-defendant mechanism is the demand from the EU, that in cases where the co-defendant mechanism is triggered, the CJEU shall have had the opportunity to review the act in question; the prior involvement of the CJEU shall be guaranteed. Whether such a prior ruling by the CJEU should be seen as binding or not by the Strasbourg Court, was one of several issues raised during negotiations, with regard to the autonomy of that Court. The question of the Strasbourg Court’s power to decide on issues that directly or indirectly affect the distribution of powers between the EU and its Member States is extremely sensitive. According to Protocol 8 to the Lisbon Treaty, the AA shall ensure that accession of the Union does not affect the powers of the Union nor its institutions or the Member States’ relationship to the ECHR. In the accession negotiations, this issue has been given prominence, notably as regards a) the extent to which the Court decides that the CRM shall be used, and b) the latitude for the Court to allocate responsibility between the EU and its Member States in judgments in respect of a Convention violation that both parties to a certain extent can be considered responsible for. How could the Court rule on the extent to which the EU is responsible and the extent to which one of its Member States is responsible without taking a position on the internal distribution of powers between them? The Court may, in other cases, allocate responsibility between defendants and this power is not easily capped for cases where the EU and its Member States appear as defendants / co-defendants in a case. In such a case, the Court could, under current rules and practice, end up allocating responsibilities between the EU Member States and the EU as a defendant or co-defendant, in a manner that tries to reflect the distribution of powers within the EU, although the power to authoritatively interpret EU law and its validity is reserved exclusively for the CJEU. The European Court of Human Rights (ECtHR) may only examine if a Convention violation has taken place based on the parties’ descriptions of the legal regime applied, and if the Court needs to differentiate responsibility between several parties as it makes its decision, it does so not in order to interpret underlying constitutional regimes, but in order to make an estimate of the causal links between several actors to one specific violation. The Court’s judgment thereby does not need to have any impact on the distribution of powers between the EU and the EUMS under EU law, and the risk that the Court’s powers under the current practice of allocating responsibility between multiple defendants would be in conflict with

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the EU Treaties and Protocols 8 can be considered as minor, but it is clear that the EU and its court will be carefully estimating if the mere risk of this happening presents the EU legal order with an unacceptable bridgehead of external influence into its powers.16 The AA is unique in that it not only contains the necessary modalities for the accession of a High Contracting Party to the ECHR—which usually is an isolated event in the life of a treaty—but also modifications to the parent Convention, in a manner normally done by the adoption of an amending protocol, an instrument that by its nature is of a lasting nature. Article 1 AA contains a substantive modification of Article 59 (2) ECHR and creates a passerelle, whereby the whole of the AA is ‘lifted into’ the ECHR, thus enabling an accession through a limited number of changes in the ECHR. The second substantive modification of the ECHR that should be mentioned is Article 3 AA, which adds new paragraphs to Art 36 ECHR, containing the new CRM. With EU accession, the Court will for the first time find itself in a situation where a State Party may have violated a right, on the basis of laws introduced by another State Party. The CRM allows the Court to treat two or more EU defendants so that responsibility is exacted where it rightfully belongs, ie with the legislating party together with the violating party, provided it is the correct application of that legislation that has caused the violation. (If not, the violating party will, as is the case now, carry the responsibility.) The mechanism is designed so that the EU can be joined to a case where a complaint has been communicated not with the EU, but with one or more of its Member States. The threshold for this to happen is that the Member State in question had only been able to avoid the rights violations by violating its obligations under EU law, ie to obey and apply EU law. There is also, conversely, a provision for the more unlikely situation that the cause of a violation is found directly in EU primary law, in which case the CRM is used to make it possible for the owners of that ‘legislation’—the EUMS as treaty-makers—to join proceedings as corespondents with the EU.17 Linked to this is the new procedural mechanism to guarantee the possibility for the CJEU to rule, in cases where it has not previously had the opportunity to do so, on the compatibility of an EU act and EU fundamental rights, in cases in which the EU is a co-respondent. There is currently no guarantee that the CJEU has had such an opportunity before a complaint is raised in Strasbourg, as the CJEU cannot be seen as one of the domestic remedies the complainant must exhaust—the complainant does not control

16 See J Polakiewicz (n 5) 5 et seq, and X Groussot, T Lock, and L Pech (n 15). Issues related to EU law have not been uncommon in the case law of the ECtHR; see Case-law Concerning the European Union (European Court of Human Rights, Press Unit, 2012). 17 See J Polakiewicz (n 5) 10 et seq.

EU Accession to ECHR and Human Rights Alleged violation by

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Adjudication in ECtHR

EU Normal procedures under ECHR EUMS MS joins EU and EUMS

EU joins

Co-respondent mechanism

Figure 7.1: Future procedural choices dependent on whether an alleged violation of ECHR calls into question the compatibility with Convention rights of EU law, Art 3(2–3), AA

this remedy, only EUMS’ courts do. For this purpose, an internal EU rapid procedure is identified in the Accession Treaty Art 3 (5) AA. The existing mechanism for third-party intervention in Art 36 ECHR (ie, an intervention which, unlike the CRM would not constitute a party position or responsibility) may also in the future be the most appropriate way to involve the EU in a case, especially if the complaint has been lodged against a state that is not an EU member, but still acts in part under the EU legal order, such as Schengen, Dublin or EEA regulations. It should also be noted that the CRM is unlikely to be a frequent future feature of Strasbourg processes.18

THE CONCLUSION OF NEGOTIATIONS

The institutionally and politically most complicated issues relate to the EU’s role in the Committee of Ministers of the Council of Europe. The basis for the EU’s participation in the ECHR system has from the beginning been that the Union should take part in the work of the Court and the other relevant organs—to the extent that these deal with ECHR-related issues— under the same conditions as the other Contracting Parties (a principle of equality or ‘equal footing’). High Contracting Parties that are not EUMS 18 During the 7+7 negotiations, the CDDH-UE was able to identify no more than three cases over the past two decades that could have triggered the CRM, had they happened after EU accession: Matthews v United Kingdom (App no 24833/94) (1999) ECHR 1999-I (violation of Art 3 Prot 1); Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland (Bosphorus Airlines v Ireland) (App no 45036/98) (2006) 42 EHRR 1 (violation of Art 1 Prot 1); and Cooperatieve Producentenorganisatie Nederlandse Kokkelvisserij UA v the Netherlands (App no 13645/05) (2009) 48 EHRR SE18 (violation of Art 6).

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have had difficulties accepting that the EU is given such influence, especially regarding issues related to the execution of ECtHR judgments against states that are not members of the EU. For the EU, it is fundamentally important that its status as a High Contracting Party is equal to that of other Parties, not only as regards to having its own judge elected to the Court, but also— and more importantly—as regards matters relating to the supervision of the execution of the Court’s judgments against the EU. The equality principle requires that the EU, like other State Parties, shall have the right to participate with a judge in Court, a judge with the same status and obligations as the other judges of the Court. As judges are elected by the Council of Europe Parliamentary Assembly, this in its turn requires a mechanism to allow the participation of a delegation from the European Parliament in the Parliamentary Assembly’s preparation and selection of judges, as well as in the performance of obligations under Art 22 ECHR. This arrangement is now found in Art 6 AA. A normative basis is likewise required to enable the EU to participate in the Committee of Ministers of the Council of Europe (CM) in the exercise of functions assigned to it by the ECHR. This basis is created by a combination of Art 7 AA and changes to the rules of procedure of the CM, notably Rule 18 thereof. EU participation in the CM is a consequence of Articles 26, 39, 46 and 47 of the ECHR, which convey functions to the CM. It is also proposed in the AA that the EU’s participation is warranted regarding CM decisions adopting new protocols to the ECHR or other ECHR-related instruments. The AA confirms in the same Article that when the CM monitors the EU or its Member States’ obligations in cases involving EU law (ie, when there is a ruling from the Court where the CRM has been activated), the EU and its Member States will be obliged to vote under EU coordination, according to internal EU rules. Simple math says that the EU would then have its own absolute majority for the adoption or the prevention of the adoption of decisions in CM, even when the EU is the subject of surveillance or enforcement action by the CM. For this reason the proposed changes to Art 18 of the CM rules of procedure state that in such cases decisions may be adopted by CM if supported by a majority (simple in some cases, qualified in other) of the CM members not representing the EU or its Member States, ie a hyper-minority. The entire EU bloc is, in such situations, transformed into an entity with considerably fewer than its 28 votes. The type of decisions affected by this is primarily enforcement issues where referrals are made to the Court for interpretation, issues concerning infringements and issues on the adoption of final resolutions. As negotiations entered their final stages, the open issues were found, firstly, in the area of clarifications (Article 1, AA, legal definitions), mainly proposed by the EU, along with general technical issues such as the distribution of new provisions between the Convention (in Article 59) and the AA, as well as interpretative provisions for the Explanatory Report.

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It is among these clarifications that we find the politically sensitive issue of the EU’s Common Foreign and Security Policy (CSFP). Some EUMS were and are possibly still hesitating over bringing this policy area, that covers EU military operations outside the territory of the EUMS, under the external control of the Strasbourg system, in particular as the CJEU itself has not established jurisdiction over it, nor do the Treaties permit it to do so. The ECtHR has, however, through its case law, established the extraterritorial character of ECHR obligations, while not creating a specific rule of attribution between individual troop contributors and the organization under whose umbrella the operation is taking place.19 One of the open issues settled late in the negotiations related to technicalities and to the technique for bridging the AA with the Convention. The suggested modification to Article 59 (2) of ECHR that will act as a passerelle (lifting in the AA into the ECHR, thereby permitting accession to take place with only minor modifications to the ECHR) was indeed strengthened, so that the modified text of 59 (2) (b) would read: The Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms constitutes an integral part of this Convention. This provision, influenced by Art 92 of the UN Charter, that makes the annexed Statute of the International Court of Justice an integral part of the UN Charter, ensures that a minimum of modifications to the mother Convention is sufficient to bring the whole architecture of EU accession into the Strasbourg Court. Secondly, there were open issues relating to the demarcations of the autonomy of the two (ECHR and EU) respective legal systems: a) The standing of non-EU Member States that implement EU law (such as the Schengen legislation and the Dublin Regulation) under the draft legal instrument. b) The scope and means for the EU to make known to the Court its wish to join proceedings as a co-respondent, without limiting the autonomy of the Court, and, conversely, the fashion in which the latter invites the EU to appear as co-respondent in proceedings, without infringing on the EU’s autonomy to rule on its internal rules for distribution of competences, c) A dilemma similar to b), appearing when the CRM has been triggered, and a violation established in the proceedings, and the Court apportions responsibility for the violation between the respondent(s) and

19 See ie cases Behrami and Behrami v France (App no 71412/01) (2007) 45 EHRR SE 85 and Saramati v France, Germany and Norway (App no 78166/01) [1999] ECHR 182, decision of 2 May 2007, para 122; Al-Jedda v United Kingdom (App no 27021/08) (2011) 53 EHRR 789, judgment of 7 July 2011, para 76, and Al-Skeini v United Kingdom, (App no 55721/07), (2011) 53 EHRR 18. See also J Polakiewicz (n 5) 7 et seq.

100 Erik Wennerström co-respondent(s); the latter apportionment could enter the area of internal distribution of competences of the EU. Thirdly, the politically sensitive question of the role of the EU in the CM. The relevant provisions are contained in a combination of Art 7 AA and proposed amendments to the rules of procedure of the CM. Issues raised in the negotiations include: a) The participation of the EU in the CM decision-making procedure concerning the execution of Court judgments against the EU; weighing of votes and other options for ensuring the proper administration of justice. b) The participation of the EU in CM decision-making concerning the execution of judgments against non-EU High Contracting Parties. c) The participation of the EU in other Convention-related processes in the CM. As the fifth meeting of the 47+1 committee came to a close on 5 April 2013, solutions had been found to all outstanding issues. As regards a possible extension of the CRM to situations in which an application directed against a state, which is not a member of the EU, a draft model Memorandum of Understanding was added to the package, permitting the EU to conclude such MoUs upon the request of a concerned state. Concerning the question of the non-binding character of the CRM, the EU agreed to make a declaration at the moment of the signature of the AA stating that it will ensure it joins the proceedings as co-respondent when the conditions set out in Article 3, paragraph 2 AA are met. As regards the participation of the EU in the CM in matters other than the supervision of the execution of judgments and of the terms of friendly settlements, the 47+1 agreed to amend the draft AA, so that the EU is entitled to participate in the CM, with the right to vote, when the CM takes decisions on the adoption of protocols to the Convention, and shall be consulted on the adoption of other relevant instruments.20 The standing of non-EU Member States that implement EU law (such as the Schengen legislation and the Dublin Regulation) is not regulated through the draft legal instrument, which leaves the current option of third party intervention the only open avenue, which has been a source of concern for some non-EU High Contracting Parties. Their situation is, however, very different than that of EU Member States, which is recognized, and the EU is not expected to shoulder the same responsibilities for states that voluntarily apply EU law, as it does for states that through their EU membership are obliged to apply it. The solution appearing in the accession instrument, is a model Memorandum of Understanding that may be concluded between the EU and a non-EUMS in which the EU undertakes to 20

See Council of Europe document 47+1(2013)R05.

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consider requests by the other state that the EU should seek leave to make a third party intervention, when a situation has arisen that would have triggered the CRM, had the requesting state been an EUMS. The issue has two elements: how to safeguard the administration of justice against the potential risk of bloc voting, and the extent of EU participation in the work and proceedings of the CM. These provisions are contained in a combination of Article 7 AA and the proposed amendments to the rules of the CM, which were further elaborated on during the last session. This concerns, in particular, decisions related to referrals to the Court for interpretation of a judgment, infringement proceedings and the adoption of final resolutions. Following the last round of negotiations, the main elements of the accession instrument—the accession package—are now: — — —

— —

a draft AA; a draft explanatory report to the AA; a draft declaration by the EU, stating that the EU will ensure to join the proceedings as co-respondent when the conditions set out in Article 3, paragraph 2 AA are met; a draft model MoU between the EU and individual non-EU High Contracting Parties; and draft amendments to rule 18 of the rules of the CM.

The 47+1 body, having concluded its deliberations in April 2013, reported on its progress in doc 47+1(2013)008rev2 to the CDDH. The CDDH in its turn, decided at its meeting at the end of June 2013 to send an interim report to the Committee of Ministers for information (CDDH(2013)R78 Addendum IV), while leaving the formal approval of the accession instrument to a point in the future, pending the internal procedures by negotiating parties, notably the EU, that is still working hard to draft and adopt a set of internal rules to match the post-accession situation it will face. The main event ahead of us now is the Opinion on the AA that the EU Court of Justice was requested to deliver by the EU in July 2013. Although the CJEU has indicated its ambition to deal with this crucial matter swiftly, an Opinion is nevertheless preceded by deliberations and a decision by all 28 judges. The Opinion could be delivered before the end of 2014—the next steps in this process cannot be taken prior to this. The EUMS and institutions were given the opportunity to submit observations to the CJEU, that convened a hearing in Luxembourg 5–6 May 2014 concerning the Draft Agreement for the Accession of the European Union to the European Convention on Human Rights.21 21 The case of the Opinion is brought under the procedure in TFEU article 218(11) by the Commission, asking the EUCJ whether the AA is compatible with the EU treaties. At the hearing, the Commission, the Council, the European Parliament and all 28 EUMS submitted that the AA is compatible with the EU treaties. The questions raised by the EUCJ centered

102 Erik Wennerström A EUROPEAN LEGAL SPACE OR SPACES?

Although accession, if and when it takes place, will and should be hailed as a success, there is reason to ponder where these developments leave human rights in Europe. The EU is already offering a system for adjudicating rightsviolations that is in many ways superior to and more user-friendly than the Strasbourg system, while it does not yet perhaps have the same legitimacy and certainly not the same ‘open door-policy’ with regard to individual complaints. Once accession is a fact, the legitimacy is no longer a problem, as the EU system ultimately relies on the ECHR system. Then, why would anybody with a choice go for the Strasbourg system in the future? While the Council of Europe as an institution is keen to establish the accession it has prepared for so long, the enthusiasm among some of its Member States that are not EUMS is combined with apprehension over either the changing dynamics of a Strasbourg system with the EU acting on its inside, or the perception of Strasbourg acceding to the EU that may enter domestic debate, if not before then at least at the time of ratification. That the EU, pursuant to Art 8 AA, shall make an annual contribution to the Court’s operations corresponding to the largest national contribution the Court obtains today is not, however, unimportant in this context. On the EU side, there is likewise institutional enthusiasm and a varying degree of support from EUMS. Apart from the political difficulties in reaching a consensus within the EU, a number of complex technical instruments (mainly for the CRM and the prior involvement of the CJEU, but also including the system for designation of EU judges to Strasbourg) needs to be adopted internally, in close connection with the EU Council decision required for accession to happen. The implications of the EU’s accession to the ECHR, and especially the introduction of a CRM, does not in itself make it easier for individuals to obtain redress for violations of the ECHR. However, accession means that it is easier for individuals to obtain redress from the right party. This should be seen as a great achievement, and it should also be recalled that the EU could have acceded to the ECHR without even raising the issue of co-responding, had it not put that burden upon itself—would other High Contracting Parties volunteer solutions implying more exposure to ECHR for them? The EU requires the legitimacy that the ECHR system lends to its parties, but the ECtHR has already, through the so-called Bosphorus test,22 clearly stated that the EU is not going to be more than superficially scrutinized, on the relevance of the internal EU rules still being negotiated, the ‘co-respondent’ and ‘prior involvement’ mechanisms, and the EUCJ’s limited jurisdiction over the CFSP. 22 The Bosphorus test is an assumption in favour of the EU having the necessary means to ensure compliance with the ECHR through its internal procedures. The ‘test’ was carried

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EUGC/EUCJ Alleged violation of ECHR and EU Charter

Prior involvment Preliminary ruling

ECtHR

National judiciary and remedies

Figure 7.2: Future possible judicial avenues for alleged rights violations in EUMS— how much will be left for the Strasbourg Court?

as long as it upholds its internal human rights diligence and does not start to underperform; in other words: Strasbourg already regards the EU as an autonomous system for rights protection. The impact of the EU Charter of Fundamental Rights, in combination with the Luxembourg Court’s considerably more developed case management, also raises the question about which process seems most attractive for future complainants with access to both courts. Together—EU accession to ECHR with maintained Bosphorus testing and an efficient rights-control under the EU Charter—these facts begs the question: how much will the EU and its Member States really be needing the Strasbourg system in the future? If the Strasbourg Court does not break its current downward trend as capacity is concerned, then the development— with or without EU accession—could move towards a new division of Europe into East and West, albeit with the boundary between them located further east than during the Cold War.23 In the West we would, in such a dystopic scenario, find an EU system that maintains a high and effective protection of individual rights through the EU’s own institutions and Member States, while the East (Council of Europe minus EU) offers a level of protection that is slow and therefore flawed. For individuals in the West, the protection Strasbourg can offer could eventually seem less and less attractive compared to the potential of Luxembourg and could therefore be discarded in favour of the latter. out explicitly in Bosphorus Airlines v Ireland (n 18). See analysis in X Groussot, T Lock and L Pech (n 15). 23 A development unrelated to both accession and the EU Charter, is the degree of national integration of the ECHR into domestic procedures. This development is still in its early stages, mostly discernible in certain EUMS (such as the Netherlands, Sweden and the UK) and while intrinsically benevolent this may nevertheless add to the centrifugal forces described above, where the need for the normative supremacy of the Strasbourg Court risks diminishing in the EU over time.

104 Erik Wennerström The Strasbourg system stands a much better chance of revival with a swift EU accession, than a protracted process during which the EU’s internal rights system cements and develops, and the draft AA that the 48 negotiators in the 47+1 committee agreed upon on 5 April 201324 contains a realistic and functioning treaty for making that happen. The CJEU will soon give its Opinion on the draft treaty, and then it will be for the political masters of both sides to demonstrate what sort of future European legal space they would like to see, in the singular or the plural.

24

See doc 47+1(2013)008rev2.

8 State (In)capacity to Prevent Human Trafficking: Adequate Responses to the Market for Servitude and Forced Labour, et al MÄRTA C JOHANSSON*

INTRODUCTION

T

HE EFFORT AGAINST trafficking in human beings that has the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (the ‘Palermo Protocol’)1 as its point of departure is now in its second decade. The common key words used when constructing strategies to combat trafficking in human beings are prevention, prosecution, protection and partnership (with other countries, organizations, etc). The primary focus of states in negotiating the Palermo Protocol was originally the threat of organized crime, which led most efforts to be turned towards the traffickers and less towards victims.2 Applying a human rights prism on trafficking

* Lecturer in Public International Law at the University of Örebro, Sweden. The research for this chapter has been financed by the Swedish Crime Victims Compensation Board. 1 The United Nations Office on Drugs and Crime (UNODC) Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (The Palermo Protocol), 2237 United Nations Treaty Series (UNTS) 319. Though there are trafficking instruments from the early 1900s, the second wave built on the definition of trafficking in human beings agreed upon in the 2000 Palermo Protocol within the framework of the fight against organized crime. 2 The Palermo Protocol was criticized early on for giving little and only provisional protection to victims. A Gallagher, ‘Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis’ (2001) 23 Human Rights Quarterly 975,

106 Märta C Johansson added the dimension of requiring states to give adequate attention not only to traffickers but also to their victims, thus not only considering them as witnesses for the prosecution, but more importantly, attending to their need for protection, social support, restitution, possible return and rehabilitation.3 Prevention efforts have included information campaigns in countries of origin, warning against the risk of trafficking. States have also highlighted the need to reduce ‘push-factors’, such as poverty and lack of work opportunities, in order to minimize the number of persons having to leave their country in order to seek economic possibilities abroad. The third shift among states, in connection with the aim of prevention, has involved examining the role of demand, or market, for the services of trafficked persons in shaping the nature and expressions of human trafficking in different contexts.4 Thus the focus is also on the exploitation of the victim: the user of the service, work or other action required of, or committed against, the trafficked person, is made visible. In considering demand, various types of prevention effort may be relevant, and they may also differ depending on the kind of service or work concerned. Efforts to combat demand within states have so far primarily been understood to consist of disseminating information, eg to potential clients, supporting education measures and research, and in certain cases criminalizing the use of the services of trafficked persons.5 There is nevertheless still caution towards grappling with

990–93. It has been criticized for providing a front for combating migration, and focusing on the trade in persons while ignoring their exploitation and the exploitation of the majority of those enslaved without having been trafficked. For a scathing critique, see J Hathaway, ‘The Human Rights Quagmire of “Human Trafficking”’ (2008) 49 Virginia Journal of International Law 1. The main arguments were nevertheless refuted in A Gallagher, ‘Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway’ (2008–09) 41 Virginia Journal of International Law 789. 3 ‘Commentary on the Recommended Principles and Guidelines on Human Rights and Human Trafficking’, HR/PUB/10/2 (Office of the High Commissioner for Human Rights (OHCHR), Geneva, 2010); M Eriksson, ‘The Prevention of Human Trafficking through the European Convention on Human Rights—Regulating Domestic Criminal Legislation through Human Rights Law’ (2013) 82 Nordic Journal of International Law 339–68. 4 The EU Action Plan implementing the 2009 Stockholm Programme stated: ‘Future measures on organised crime need to use the new institutional framework to the fullest extent possible. Trafficking in human beings, child pornography, cyber crime, financial crime, counterfeiting of means of payment and drugs trafficking, should be tackled in a comprehensive way. More effective prosecution and conviction are as important as attending to the needs of the victims of these crimes and reducing the demand for services from potential victims.’ COM (2010) 171, 6. 5 ‘Legislative Guide for the Implementation of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime’, Part 2, para 70–72 at: www.unodc. org/unodc/en/treaties/CTOC/legislative-guide.html; ‘Explanatory Report on the European Trafficking Convention’, Council of Europe Treaty Series (CETS) 197, para 108–10; Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council

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the market for exploitation, envisioned as a highly complex and problematic issue with naive users of services possibly risking unfair harassment if states adopt stronger measures than merely urging consideration. Not only has the last decade brought about a shift in the focus of state efforts. Increased attention to various expressions of trafficking has also shifted the spotlight from women in prostitution to further groups, such as men, and other types of exploitation, such as domestic servitude, forced labour, organ trafficking, and children exploited in benefit fraud, petty crime and begging.6 Within this wider definition of human trafficking there are marked differences regarding the intended exploitation of the victims. In some situations human trafficking involves intended actions that are clearly harmful to the victim, mentally and/or physically, such as sexual exploitation or organ removal. In other cases, the activities for which the victim is intended constitute ordinary work when performed under acceptable standards, such as domestic, construction and agricultural work. In some cases the actions required of the victim may be criminal, such as pick-pocketing or theft, and thus it may not be easy to ascertain who is a victim and who is an offender. What might appear to be a group of criminals might instead reveal traffickers who are obliging victims to commit crimes. It seems reasonable to highlight that it is not always readily apparent to outsiders or potential customers that the services they are offered to make use of involve those of a victim of human trafficking. States thus legitimately remain cautious against criminalizing ensuing exploitation of victims. This chapter provides arguments for why such a position is untenable both in the fight against trafficking in human beings as well as in light of existing obligations on states to combat slavery, servitude and forced labour. The duties that states have to combat human trafficking generally derive from a number of sources, such as treaties or other international standards specifically on trafficking in humans,7 on human rights treaties requiring

Framework Decision 2002/629/JHA (Directive 2011/36/EU), OJ L101, 15.4.2011, 1–11 (to be transposed before 6 April 2013) ss 25–26. The causal relationship between prevention of trafficking in human beings and demand for their services is highly contested, as are the most appropriate means to reduce demand. This is especially the case regarding the sex market. See eg S Cho, A Dreher and E Neumayer, ‘Does Legalized Prostitution Increase Human Trafficking?’ (2013) 41 World Development 67–82; J O’Connell Davidson, ‘Men, Middle-men and Migrants: The Demand Side of “Sex Trafficking”’ at: www.eurozine.com/articles/200607-27-davidson-en.html#footNoteNUM1. 6 See Article 2(3) of Directive 2011/36/EU (n 5) which includes a wider range of exploitation forms than the Palermo Protocol or the Council of Europe Convention on Action against Trafficking in Human Beings (2005) CETS 197. 7 The Palermo Protocol; the COE Anti-Trafficking Convention (2005); EU Council Framework Decision 2002/629/JHA, OJ L203, 1.8.2002, 1–4; and EU Directive 2011/36/EU.

108 Märta C Johansson due diligence,8 child protection,9 and international labour standards.10 This chapter examines the primary obligation that European Union (EU) Member States have to combat human trafficking generally, and outlines what duties there are on them to take measures to reduce demand for the services of trafficked persons. This will include measures combating the exploitation of non-trafficked persons, such as through servitude and forced labour. As these forms of exploitation need to be responded to more forcefully, the present EU effort to encourage the criminalization of use of services only when there is knowledge that there has been trafficking will be examined.

TRAFFICKING AND THE EUROPEAN HUMAN RIGHTS CONVENTION

The Inclusion of Trafficking in the Convention As all EU Members are also party to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), this Treaty provides standards important with regard to human trafficking. The relevant rights protected in the ECHR are the prohibition against torture and other inhuman or degrading treatment or punishment (Art 3),11 the prohibition against slavery or servitude (Art 4), and the right to private and family life (Art 8).12 Most trafficking-related cases have been understood to primarily fall within Article 4.13 Article 4 of the ECHR does not 8 1966 UN Convention on Civil and Political Rights, GA Res 2200A (XXI), 21 UN GAOR Supp (No 16) at 52, UN Doc A/6316 (1966), 999 UNTS 171; 1950 European Convention for the Protection of Fundamental Rights and Freedoms, as amended by Protocol Nos 11 and 14, European Treaty Series (ETS) 5. 9 Convention on the Rights of the Child (CRC), GA Res 44/25, annex, 44 UN GAOR Supp (No 49) at 167, UN Doc A/44/49 (1989); the 2000 UN Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, GA Res 54/263, Annex II, 54 UN GAOR Supp (No 49) at 6, UN Doc A/54/49, Vol. III (2000); also ILO Convention No 182 (1999) on Worst Forms of Child Labor. 10 ILO Convention No 29 (1930) Concerning Forced or Compulsory Labour. 11 States may not subject persons to such treatment, but must also protect against such treatment by private or other parties. There is much case law on protection, and with regard to children special protection is required. See eg X and Y v Netherlands (App no 8978/80) (ECtHR, 26 March 1985) para 27, 30; Z and Others v UK (App no 29392/05) (ECtHR, 10 May 2001) para 73–74; E and Others v UK (App no 45508/99) (ECtHR, 26 November 2002) para 88–101; M C v Bulgaria (App no 39272/98) (ECtHR, 4 December 2003) para 148–53, 167. 12 See eg Stubbings and Others v United Kingdom (App no 22083/93, 22095/93) (ECtHR, 22 October 1996) para 62–64 on the relevance of the Article. 13 The more important cases are: Siliadin v France (App no 73316/01) (ECtHR, 26 July 2005); Rantsev v Cyprus and Russia (App no 25965/04) (ECtHR, 7 January 2010); CN and V v France (App no 67724/09) (ECtHR, 11 October 2012); CN v United Kingdom (App no 4239/08) (ECtHR, 13 November 2012); M and Others v Italy and Bulgaria (App no 40020/03) (ECtHR, 31 July 2012). Earlier case law under Article 4 has focused on what

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mention trafficking in humans, but refers to slavery, servitude, and forced or compulsory labour.14 The lack of the term ‘trafficking’ in the Treaty text has nonetheless not restricted the European Court of Human Rights (ECtHR) from finding it to be included. In the case of Rantsev v Cyprus and Russia,15 the ECtHR explained that the ECHR is a ‘living instrument which must be interpreted in the light of present-day conditions’16 and as the traditional concept of slavery should now be understood to have developed to include modern forms of slavery that do not necessarily involve exercising all of the powers connected to the right of ownership,17 ‘trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership as a contemporary form of slavery.’18 The ECtHR found it unnecessary to specify which of the prohibited actions in Article 4 had been breached in the case. Instead, trafficking in human beings, as defined by the major instruments, was itself considered to violate Article 4.19 The reasoning has been criticized on the grounds of causing legal uncertainty and not benefiting victims.20 It could perhaps also be understood to reflect the preoccupation with analyzing all exploitation using a human trafficking lens to the detriment of effectively combating other forms of exploitation laid down in Article 4.21 The Court’s reasoning might, however, not be all that poor. The focus in the case of Rantsev v Cyprus and Russia was the trafficking process itself—not the ensuing exploitation. Thus it might actually not have been very helpful for the ECtHR to attach the trafficking in the case to one of the three categories, as at least servitude and forced labour require exploitation as one of the elements of the action. It is also important to highlight that the judgments coming from the ECtHR outline duties that go beyond the limits of human trafficking as internationally defined, indicating that the Court is not loath to outline positive duties to combat exploitation beyond the framework of human trafficking. constitutes forced or compulsory labour, eg Admissibility decision on App no 1468/62, Iversen v Norway, Yearbook of the Convention, vol 6, 327–329; Van der Mussele v Belgium, judgment of 23 November 1983, Series A no 70. 14 Note the clarification in Article 4(3) of actions not considered to constitute forced or compulsory labour. 15 Rantsev v Cyprus and Russia (n 13). 16 ibid para 277. 17 ibid paras 142–43, 277–82. 18 ibid para 281. 19 ibid paras 279, 282. The ECtHR ‘concludes that trafficking itself, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the [2005 Council of Europe] AntiTrafficking Convention, falls within the scope of Article 4 of the Convention.’ 20 R Piotrowicz, ‘States’ Obligations under Human Rights Law towards Victims of Trafficking in Human Beings: Positive Developments in Positive Obligations’ (2012) 2 International Journal of Refugee Law 181, 196. 21 See J Hathaway (n 2) for a warning against disregarding the specific character of the other prohibited actions.

110 Märta C Johansson DISTINGUISHING HUMAN TRAFFICKING FROM ENSUING OR OTHER FORMS OF EXPLOITATION

A fundamental difference between trafficking in human beings and the forms of abuse laid down in Article 4 is that trafficking is a crime the core of which involves taking actions to place someone in a position where they can be exploited for various purposes.22 It is a pre-exploitation crime. The exploitation need not actually take place for the crime to have occurred;23 it is enough that measures have been taken by using certain means for the purposes of exploiting a certain victim. A trafficker need not be shown to have exploited the victim, or that anyone else did, though ensuing exploitation may provide valuable evidence of the original intention to make exploitation possible. Trafficking has been likened to modern slavery,24 and in one sense this is correct, as in both cases the purpose of placing the victim in a certain place or position is exploitation. Indeed, under their obligations to combat slavery states are obliged to combat trade in humans. Article 1(2) of the Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention of 1926 (1926 Slavery Convention)25 states: The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.

However, slavery itself differs from the slave trade. Article 1 of the 1926 Slavery Convention defines slavery as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’. Several courts have lately determined that modern forms of slavery do not necessarily require actual ownership, as states no longer permit legal ownership of persons; there can still be slavery even when only some of the powers, though now without legal validity, are exercised.26 Exploitation 22 Palermo Protocol Article 3(a) defines trafficking in human beings thus: ‘“Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs’. 23 ‘Explanatory Report on the European Trafficking Convention’, CETS 197 (n 5) para 87. 24 ibid s 1(a)(3). 25 Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention of 1926 (1926 Slavery Convention) 60 League of Nations Treaty Series (LNTS) 253, entered into force 9 March 1927. 26 The ECtHR refers to Prosecutor v Kunarac, Kovac and Vukovic, judgment of 22 February 2001, Case No IT-96-23-T and 23/1 in the case of Rantsev v Cyprus and Russia (n 13) para 142–43, 280. The ECtHR summarized the International Criminal Tribunal for the former

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is one of the indications that there is enslavement, but it is not necessary for a determination of enslavement to be made. The definition of slavery is still relatively narrow, and the exercise of control could be expected to be manifest so as not to water down the concept too much.27 Though some cases of human trafficking would undoubtedly fulfil the more recent understanding of slavery, the definition of trafficking can also include cases where a victim is unaware of what is actually taking place; for the crime to be completed it is enough that the actions taken with a view to exploit the victim—the ‘trade’—were of a certain kind.28 Because of the many similarities, it is not surprising that trafficking is viewed as closely connected to slavery. In the case of Rantsev v Cyprus and Russia, the ECtHR stated: The Court considers that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership. It treats human beings as commodities to be bought and sold and put to forced labour, often for little or no payment, usually in the sex industry but also elsewhere [...]. It implies close surveillance of the activities of victims, whose movements are often circumscribed [...]. It involves the use of violence and threats against victims, who live and work under poor conditions.29

Servitude and forced labour, in contrast with human trafficking, are postexploitation crimes. In servitude there is, apart from the effected exploitation, an element of status or condition, similar to that of slavery; the victims live where they are exploited and perceive that they are unable to change their situation.30 The core of forced labour is unconnected to status or

Yugoslavia’s reasoning: ‘In assessing whether a situation amounts to a contemporary form of slavery, the Tribunal held that relevant factors included whether there was control of a person’s movement or physical environment, whether there was an element of psychological control, whether measures were taken to prevent or deter escape and whether there was control of sexuality and forced labour’. The development is important, as some modern forms of slavery may even be understood as more severe than traditional ones, in that victims are not owned for life but are exploited for intense periods until they can no longer work, at which point they are disposed of. Kevin Bales, Disposable People: New Slavery in the Global Economy (Berkeley, University of California Press, 1999) 129. See further H Cullen, ‘Contemporary International Legal Norms on Slavery: Problems of Judicial Interpretation and Application’ in Jean Allain (ed), The Legal Understanding of Slavery (Oxford, Oxford University Press, 2012) 304–321. 27 The Appeals Chamber in Prosecutor v Kunarac, Kovac and Vukovic held that ‘in all cases, as a result of the exercise of any or all of the powers attaching to the right of ownership, there is some destruction of the juridical personality.’ Appeals judgment of June 12, 2002 at 117. See discussion in Gallagher (n 2 [2008–09]) 799–810. 28 According to Article 3 of the Palermo Protocol these are: ‘by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person’. Emphasis added. 29 Rantsev v Cyprus and Russia (n 13) para 281. 30 The ECtHR describes servitude in the case of Siliadin v France (n 13) para 123: ‘in addition to the obligation to perform certain services for others ... the obligation for the “serf” to live on another person’s property and the impossibility of altering his condition’. The interpretation is based on Article 1b of the Supplementary Convention on the Abolition

112 Märta C Johansson condition, builds on work performed involuntarily under threat of a penalty, and can very well be temporary.31 Under widely accepted standards, states are required to combat both maintaining victims in such situations, as well as combating the use of victims’ labour or services.32 The exploitation in servitude and forced labour could be by another person than the one maintaining the victim in the coercive situation. The victims might or might not have been trafficked—the obligations to combat servitude and forced labour do not make any such distinction. In a case of trafficking for the purpose of forced labour, there is thus always a trafficker who has taken measures to place a victim in a situation where they could be exploited in conditions amounting to forced labour. If the trafficker himself then exploits the victim in forced labour, that constitutes a violation in addition to that of trafficking. The person who exploits the victim subsequent to the trafficking could, however, be someone other than the trafficker, and, in that case, both persons should be prosecuted for different crimes. What is perhaps most common in the case of servitude and forced labour is that those who exploit victims have caused or induced them into the exploitative situation, eg by employment, but the actions leading to this do not necessarily fulfil the three elements that constitute trafficking in human beings. There can be trafficking without exploitation taking place, and there can be forced labour without trafficking having taken place. The common conflation of the terms has, however, led to widespread gaps in legal protection and to less visibility of the market for exploitation; it is

of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (1956 Abolition of Slavery Convention), 226 UNTS 3, entered into force on 30 April 1957: ‘Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status’. 31 Article 2(1) of the 1930 ILO Forced Labour Convention defines forced labour thus: ‘For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.’ See also Article 2(2) for work that is excepted from forced labour. For an indepth description of the components constituting forced labour, see ‘Report III (Part 1B) of the Committee of Experts on the Application of Conventions and Recommendations, 96th session of the International Labour Conference (2007): General Survey concerning the Forced Labour Convention, 1930 (No 29), and the Abolition of Forced Labour Convention, 1957 (No 105)’. 32 Article 1(1) and 25 of the 1930 ILO Forced Labour Convention. The ECtHR held in the case of Siliadin v France (n 13) para 112: ‘The Court reiterates that Article 4 enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 4 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation … In those circumstances, the Court considers that, in accordance with contemporary norms and trends in this field, the member States’ positive obligations under Article 4 of the Convention must be seen as requiring the penalisation and effective prosecution of any act aimed at maintaining a person in such a situation (see, mutatis mutandis, M.C. v Bulgaria, … § 166).’

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as though the exploitation itself has taken a back-seat. It is fair to recall that the Palermo Protocol was developed within the context of combating organized transnational crime, and states took upon themselves no detailed obligations to combat the market for the work or services of the victims of trafficking. This author nevertheless takes note of the increased attention to prevention and to viewing demand as an important component of such prevention. It is also clear that states have an existing legal duty to combat demand for exploitation such as servitude or forced labour, as well as through human rights standards. If states are to take all measures to combat these abuses, then the distinction between pre-exploitation trafficking, use of the work or services of a person in servitude, forced or compulsory labour, and maintaining victims in such situations, is vital in order to identify the variety of actors involved and take adequate measures to combat their abuses.

THE EUROPEAN COURT’S DEVELOPMENT OF ARTICLE 4: HARMONIZATION AND POSITIVE OBLIGATIONS

Instead of developing its own definitions of the situations prohibited in Article 4, the ECtHR has a clear practice of interpreting the ECHR in light of the type of treaty that it belongs to,33 as well as in harmony with other international standards. This application of Article 31(3)(c) of the 1969 Vienna Convention on the Law of Treaties34 is especially clear with regard to Article 4. In Siliadin v France35 the ECtHR used the definition of forced labour found in the ILO Forced Labour Convention No 29 of 1930 (1930 Forced Labour Convention),36 of slavery in the 1926 Slavery Convention,37 and the 1956 Abolition of Slavery Convention,38 when interpreting and applying the concepts of ‘forced labour’ and ‘servitude’ in Article 4.39 33 It is a human rights treaty set up for the effective protection of human rights, the safeguards of which have to be practical and effective. The main interpretation used will thus consider this object and purpose. See Case ‘relating to certain aspects of the laws on the use of languages in education in Belgium’ (merits), 23 July 1968, 32, para 5, Series A no 6, and later expressions of the effectiveness theory, eg Rantsev v Cyprus and Russia (n 13) paras 274–75. 34 1155 UNTS 331, entered into force on 27 January 1980. 35 Siliadin v France (n 13). 36 1930 ILO Forced Labour Convention. See n 31 regarding the Convention definition. See also Van der Mussele v Belgium (n 13). 37 Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention of 1926 60 LNTS 253 (n 25). 38 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery 226 UNTS 3 (n 30). 39 Paras 115–20 (‘forced labour’) and paras 121–29 (‘servitude’). The ECtHR gave shorter definitions in Rantsev v Cyprus and Russia (n 13) para 276: ‘The concept of “servitude” entails an obligation, under coercion, to provide one’s services, and is linked with the concept of “slavery” (see Seguin v France App no 42400/98 (ECtHR decision, 7 March 2000); and Siliadin v France, para 124). For “forced or compulsory labour” to arise, the Court has held

114 Märta C Johansson In Stummer v Austria40 the ECtHR referred to the 2007 International Labour Conference expert definitions of terms in the 1930 Forced Labour Convention,41 and in a recent domestic servitude case, CN v the United Kingdom,42 the ECtHR used ILO indicators for forced labour,43 as well as referring to the specific character of domestic servitude as distinct from both forced labour and human trafficking.44 [D]omestic servitude is a specific offence, distinct from trafficking and exploitation, which involves a complex set of dynamics, involving both overt and more subtle forms of coercion, to force compliance. A thorough investigation into complaints of such conduct therefore requires an understanding of the many subtle ways an individual can fall under the control of another. In the present case, the Court considers that due to the absence of a specific offence of domestic servitude, the domestic authorities were unable to give due weight to these factors.45

In another recent case, CN and V v France,46 the ECtHR used an ILO report47 in order to define the term ‘penalty’ as a component of forced labour, the components of which the ECtHR described as based on Article 2(1) of the 1930 Forced Labour Convention.48 The ECtHR again referred to the 1956 Abolition of Slavery Convention in order to distinguish servitude from forced labour.49 It is interesting to note the ECtHR’s wide use of other treaties and sources when interpreting Article 4. Another development of great interest is how the Court approaches the positive duties of states arising from the Article. Article 4 differs from most other Articles in the ECHR in that the greater part of the state duties will be positive, rather than negative ones. This is the case as most acts of trafficking and exploitation are conducted by private parties, not by states themselves, thus requiring states to take measures to provide protection against the abuses.50 Even though only alleged victims of rights violations enjoy standing before the ECtHR, the Court has not that there must be some physical or mental constraint, as well as some overriding of the person’s will (Van der Mussele v Belgium … § 34 …; Siliadin v France, para 117).’ 40

Stummer v Austria App no 37452/02 (ECtHR Grand Chamber, 7 July 2011) para 47. Committee of Experts Report III (Part 1B) on the 1930 Forced Labour Convention and the 1957 Abolition of Forced Labour Convention (n 31). 42 CN v United Kingdom (n 13). 43 ibid para 35. The indicators (in this case regarding ‘coercion’) are described in ‘Hard to See, Harder to Count: Survey Guidelines to Estimate Forced Labour of Adults and Children’ (ILO, Geneva, 2011) at: www.ilo.org/public/libdoc/ilo/2011/111B09_351_engl.pdf, 14–16. 44 CN v United Kingdom (n 13) para 80. 45 ibid. 46 CN and V v France (n 13). 47 ‘The Cost of Coercion’, adopted at the 98th session of the International Labour Conference (2009). www.ilo.org/wcmsp5/groups/public/@ed_norm/@relconf/documents/ meetingdocument/wcms_106230.pdf. 48 Para 71, 77–78. 49 1956 Abolition of Slavery Convention, para 90. 50 R Piotrowicz (n 20) 186. 41

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understood itself to be limited to finding violations only as direct state actions towards a victim. On the contrary, the ECtHR has a long-standing practice of requiring states to show due diligence and grant effective protection against abuse and exploitation, especially of vulnerable persons, even from private persons, and through criminalization, investigation, prosecution and sufficiently severe punishments provide effective deterrence against violations of Convention rights.51 States are under an obligation to ensure that treatment contrary to Article 4 can be investigated, prosecuted and can lead to criminal convictions where appropriate. No gaps may remain where Article 4 violations cannot be investigated, prosecuted, and, where appropriate, lead to convictions. In the recent case of CN v United Kingdom,52 the ECtHR found that the UK legislation at the time of the alleged breach did not afford ‘practical and effective protection’ against Article 4 violations in that it limited authorities to investigating and punishing only for offences that often, but not always, accompanied slavery, servitude and forced or compulsory labour. There was a lack of relevant crimes that could be applied. Those who suffered treatment that was contrary to Article 4 but was unregulated by national law had no available remedy.53 The positive duty to afford effective protection requires that criminalization carries appropriate penalties. In Siliadin v France,54 the punishment for exploiting a young African girl in domestic servitude consisted of a fine. The ECtHR considered that this provided the girl with insufficient protection against actions contrary to Article 4, and the lack of sufficiently severe sentences was thus found to constitute a violation of the state’s positive obligations under Article 4.55 The Court also criticized the legislation for its lack of precise language as it opened up for varying interpretation and application. The ECtHR found that the criminal law did not provide the minor applicant with practical and effective protection against the treatment that she had been subjected to, and required ‘greater firmness’ as the required levels of protection are increasing.56 The positive obligations that the ECtHR has identified with regard to Article 4 have often been inspired by examining other international obligations on states. The ECtHR has thus not only referred to other treaties when interpreting Convention terms. In the case of Siliadin v France, the ECtHR

51 See eg ES and Others v Slovakia (App no 8227/04) (ECtHR, 15 September 2009); CAS and CS v Romania (App no) 26692/05 (ECtHR, 20 March 2012); IG v Republic of Moldova (App no 53519/07) (ECtHR, 15 May 2012); KU v Finland (App no 2872/02) (ECtHR, 2 December 2008). 52 CN v United Kingdom (n 13). 53 ibid 70, 76–81. 54 Siliadin v France (n 13). 55 ibid para 112. 56 ibid paras 143–44, 147–48.

116 Märta C Johansson referred to additional obligations in the 1930 Forced Labour Convention,57 the 1926 Slavery Convention,58 and the 1989 UN Convention on the Rights of the Child59 as forming part of Article 4.60 The ECtHR also made reference to the 2005 Council of Europe Convention on Action against Trafficking in Human Beings (European Trafficking Convention)61 and specifically noted the Articles defining human trafficking and the obligation to consider criminalizing the use of services of trafficked victims.62 In Rantsev v Cyprus and Russia the ECtHR referred to the definition of trafficking in the UN Palermo Protocol, as well as to obligations towards victims of trafficking in human beings.63 It again referred to the 2005 European Trafficking Convention and specific obligations under it,64 and also referred to EU instruments combating trafficking and the aims of those instruments.65 In CN and V v France (2012),66 the ECtHR referred to all these documents in one fell swoop as sources for Article 4.67 Although there are few judgments so far regarding Article 4, because of the use of other international instruments it is not surprising that the ECtHR has found such a wide range of positive obligations on states to combat human trafficking and related exploitation. In fact, in the case of Rantsev v Cyprus and Russia68 the ECtHR clearly stated the broadest approach possible: The Court observes that the Palermo Protocol and the [2005 COE] AntiTrafficking Convention refer to the need for a comprehensive approach to combat trafficking which includes measures to prevent trafficking and to protect victims, in addition to measures to punish traffickers [...]. It is clear from the provisions of these two instruments that the Contracting States, including almost all of the member States of the Council of Europe, have formed the view that only a combination of measures addressing all three aspects can be effective in the fight against trafficking [...]. Accordingly, the duty to penalise and prosecute trafficking is only one aspect of member States’ general undertaking to combat trafficking. The extent of the positive obligations arising under Article 4 must be considered within this broader context.69

57 58 59 60 61 62 63 64 65 66 67 68 69

Article 4(1) of the Forced Labour Convention, adopted by the ILO on 28 June 1930. Article 1 of the 1956 Abolition of Slavery Convention. CRC (n 9) Articles 19 and 32. Paras 85–89. CETS 197 (n 6). The Articles referred to in Siliadin v France (n 13) para 50 are Articles 1, 4 and 19. Rantsev v Cyprus and Russia (n 13) paras 149–55. ibid paras 166, 169–70. ibid 156–57. CN and V v France (n 13). ibid para 51. Rantsev v Cyprus and Russia (n 13). ibid para 285.

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The ECtHR went on to describe the comprehensive approach and measures that states must adopt to combat human trafficking beyond punishing traffickers, adopting criminal legislation, and having effective investigations and prosecutions.70 Further duties on states are: to ascertain potential victims, even when the persons do not cooperate, and under credible suspicion, remove them from risk;71 to regulate businesses that are used as cover for trafficking activities;72 to evaluate immigration legislation and policies so that they do not encourage, facilitate and tolerate trafficking;73 to train government personnel, such as in law enforcement and immigration, to be able to identify victims of trafficking;74 and to support recovery, access to justice and legal assistance. In the case, Cyprus was found to have violated, inter alia, its obligations under Article 4 by its continuing use of the artiste visa régime, which functioned as a vehicle for entry into the country for purposes of organized prostitution.75 Russia was found to have breached its obligations to protect by failing to effectively investigate how the woman in the case had originally been recruited in Russia.76 The requirements flowing from the ECHR pose a number of challenges for states, for example with regard to recent increases in labour exploitation within Europe. First, it is crucial to recognize that actions other than human trafficking require criminalization and effective adjudication under Article 4.77 As already mentioned, servitude and forced labour do not require fulfilment of the same components as those that constitute human trafficking, and should not be ignored simply because they do not amount to human trafficking. Recent increases in the recognition of labour exploitation require the adoption of crimes, the elements of which correspond to international definitions of forced labour and servitude, making it possible to effectively combat these forms of exploitation. Limiting protection against these violations to the framework of human trafficking reduces the protection that should be available. Second, national legislation and its application, including that on human trafficking, needs to function so that it affords effective protection and is dissuasive. It must be possible to apply 70

ibid paras 284–85, 288. ibid para 286. 72 ibid para 284. 73 ibid para 284. 74 ibid paras 286–87. 75 ibid para 293. The artiste visa allowed employers to apply for visas for artists. The majority of the visas, however, were used for women who worked in the sex trade, and had long been criticized, eg by the Council of Europe’s Commissioner for Human Rights. 76 ibid paras 307–09. In M and Others v Italy and Bulgaria (n 13) para 167, the ECtHR repeated the duty (noted in the case of Rantsev v Cyprus and Russia (n 13) that states have to cooperate effectively with other authorities in cross-border cases. 77 According to Article 25 of ILO Convention No 29 (1930) (n 10), states are obliged to criminalize exaction of forced labour, and ensure that penalties are adequate and strictly enforced. Committee of Experts Report III (Part 1B) on the 1930 Forced Labour Convention and the 1957 Abolition of Forced Labour Convention (n 31) pp 70–75. 71

118 Märta C Johansson the legislation in practice. If national crimes on human trafficking are difficult to apply, other crimes must be available to fill the application gap. Third, as combating human trafficking by reducing demand is seen to form part of the obligations that states have under Article 4, this places even greater requirements on states to take positive measures, and efforts need to be turned not only towards traffickers, but towards users of the victims’ services, whether they are employers or customers.

INTERNATIONAL REGULATIONS SPECIFICALLY REQUIRING EFFORTS TO REDUCE THE MARKET

Council of Europe Obligations ECtHR practice under Article 4 has opened up a host of duties and measures required of states in order to effectively combat violations against the Article, including measures to dissuade use of the services of those who have been subjected to violations under Article 4.78 Apart from other preventative measures, such as those relating to migration and supervision of labour conditions,79 this involves criminalization of exploitation of both trafficked and non-trafficked persons. With regard to exploitation that falls within servitude and forced labour, the cases of Siliadin v France and CN v France, described above, show that the exploitation must be punishable by sufficiently severe penalties. It is interesting to note that in the case of Siliadin v France, the ECtHR referred to Article 19 of the European Trafficking Convention,80 adopted in 2005, requiring states to consider criminalizing the use of services of victims of human trafficking when this is done with the knowledge that the person has been trafficked.81 The reference was made even though the ECtHR found that the girl had been in servitude and was not trafficked.82 This would indicate that the duty to take action against those who exploit persons subject to violations of Article 4 covers the exploitation of all such victims, whether trafficked or not, and that the obligations connected to trafficking merely underline this. In the case of Rantsev v Cyprus and Russia references were made to Article 19 of the 2005 European Trafficking Convention, to Article 6 that 78 For an overview of the duties to combat demand flowing out of the Palermo Protocol, see ‘Commentary on the Recommended Principles and Guidelines on Human Rights and Human Trafficking’, HR/PUB/10/2 (OHCHR, Geneva, 2010) 97–103. 79 Rantsev v Cyprus and Russia (n 13) para 284. 80 Siliadin v France (n 13). The Convention is wider in scope than the 2000 UNODC Palermo Protocol as it covers both internal and trans-national trafficking, as well as situations where the trafficking is connected to organized crime and where it is not. 81 Siliadin v France (n 13) para 50. 82 It should be noted that if the situation had been examined using the criteria for trafficking in humans, it is possible that the suspects should have been convicted of that crime instead.

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requires states to adopt a wide array of measures to discourage demand, and to Article 23 that requires those states that have criminalized certain offences, such as those under Article 19, to ensure that the offences are punishable by ‘effective, proportionate and dissuasive sanctions’.83 Reference was also made to Article 9(5) of the Palermo Protocol, which requires states to adopt legislative or other measures to discourage the demand that leads to trafficking.84 In connection with the EU standards referred to, the ECtHR noted a 2005 action plan to combat and prevent trafficking, inter alia proposing steps to reduce demand.85 In CN v United Kingdom,86 the ECtHR again referred to Article 19 of the 2005 European Trafficking Convention, which requires states to consider legislative and other measures necessary to establish the use of the services of a person known to be trafficked as a crime under national law.87 Perhaps the most important point to emphasize, again, is that when combating servitude and forced labour the use of the work or services of a person who is under unjustified pressure, or experiences that they have no other option than to submit to the exploitation, must be criminalized, investigated, prosecuted, and sentenced. In essence, use, or exploitation, of services in such circumstances is one of the core issues that Article 4 was set up to tackle. Article 1 of the 1930 Forced Labour Convention, which, as noted above, is used to interpret ECHR Article 4, requires: Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period.

Article 25 further requires: The illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and are strictly enforced.

In servitude and forced labour, the prohibited actions are taken by a person who by certain mechanisms of control, threats, or certain other ways, exploits the work or services of the victim. The ‘user’ might for example be an employer, or a person providing the victim with a place of residence. In trafficking, on the other hand, the crime consists of taking actions in order to place a person in a situation where they can be exploited. What states are presently doing is considering homing in on measures to make the ensuing

83

Rantsev v Cyprus and Russia (n 13) paras 166–70. ibid para 154. 85 ibid para 157. 86 CN v the United Kingdom (n 13). 87 ibid para 38. In the facts of the case, however, the couple to whom the applicant provided her services did not know about her circumstances. 84

120 Märta C Johansson exploitation illegal when conducted by someone other than the trafficker— someone who is perceived to be a somewhat culpable bystander. Combating remaining servitude and forced labour seems to be a sensitive or blind spot, although non-trafficked servitude or forced labour cases might form the majority of cases falling within ECHR Article 4. Ensuing exploitation that falls within servitude and forced labour should already have been criminalized by states in line with their existing international obligations to combat slavery, servitude and forced labour. Whether a victim was also trafficked or not should not detract from the employer’s, customer’s or other user’s acts in maintaining and exploiting servitude or forced labour, or participating in the exploitation by knowingly benefiting from another’s pressure on the victim. It is use of newer forms of exploitation that do not fulfil the definitions of slavery, servitude and forced labour, such as some situations of sexual exploitation, exploitation of criminal activities, and removal of organs88 that states should be ‘considering’ whether they wish to criminalize or not (when having knowledge of the victim’s trafficking). Regarding sexual exploitation specifically, when this reaches the threshold of servitude or forced labour, states thus have an existing duty under Siliadin v France and CN v France, in line with other international obligations,89 to combat such exploitation.90 In sexual exploitation for profit there are often two users: the trafficker or procurer; and the customer.91 It could be argued that states have a duty to criminalize the various uses of such victims (by different actors) when users are aware of the victim’s condition. Whether the user or another exerts the pressure over the victim, if there is knowledge or reasonable suspicion regarding the pressure, to benefit from this situation should reasonably be seen as participation in exploitation. Thus, it should not be considered optional for states to criminalize the purchase of services from persons who could be considered to be in servitude or forced labour, as is the case presently.92 The obligation on states would thus stretch further than the obligation to consider such criminalization under the 2005 European Trafficking Convention and Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its 88

Article 2(3) of the EU Directive 2011/36/EU (n 5). The ILO has clarified that coercive sexual exploitation and forced prostitution constitute forced labour. Committee of Experts Report III (Part 1B) on the 1930 Forced Labour Convention and the 1957 Abolition of Forced Labour Convention (n 31) 42. 90 Many states already do this somewhat unintentionally through criminalization of procurement, although the primary object is not always to protect the seller against exploitation by the procurer. 91 Iceland, Norway and Sweden have criminalized all purchases of sexual services, whether from trafficked persons or not, while Finland and the UK have criminalized the purchase of sex from trafficked persons or persons subjected to force. 92 Only Iceland, Norway, Sweden, Finland and the UK have criminalized the purchase of sex from trafficked persons or persons subjected to force. 89

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victims, and replacing Council Framework Decision 2002/629/JHA.93 The Convention and Directive are also limited in that they only require states to consider criminalization of acts where users have exploited victims of trafficking, not merely of servitude or forced labour. A final observation can be made with respect to anti-trafficking instruments, such as the 2005 European Trafficking Convention. The Convention is wider in scope than the Palermo Protocol as it covers both internal and trans-national trafficking, as well as situations where the trafficking is connected to organized crime and where it is not. It contains obligations on states with regard to reducing demand, requiring that states need to consider criminalizing the use of the services of a trafficked person, whether minors or not.94 This regards all types of service from trafficked persons—sexual as well as non-sexual. Nevertheless, if states are serious about combating exploitation of trafficked persons, especially with regard to the market for exploitation, then human rights instruments95 seem to provide a more effective approach. This author suggests that the market for trafficking will only be effectively tackled when the general market for extreme exploitation is reduced.

EU Obligations There are additional relevant norms for EU Member States concerning trafficking and reducing demand for connected work or services. Article 5 of the EU Charter of Fundamental Rights prohibits slavery, servitude, forced or compulsory labour, as well as trafficking in human beings.96 Lately, the issue of demand for the work or services from victims of trafficking in human beings has received more attention, as seen in the Action Plan implementing the 2009 Stockholm Programme,97 and the 2009 Action Oriented

93

2011/36/EU (n 5). For more on the Directive, see the following section. 2005 European Trafficking Convention Article 19—Criminalisation of the use of services of a victim Each Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences under its internal law, the use of services which are the object of exploitation as referred to in Article 4 paragraph a of this Convention, with the knowledge that the person is a victim of trafficking in human beings. The commentary notes that the aim of having regulated demand in a separate article is to underline the importance of dealing with demand in order to prevent and fight trafficking itself. The aim of the measures that states choose should be ‘effective dissuasion’. ‘Explanatory Report on the European Trafficking Convention’, CETS 197 (n 5) para 108–110. 95 I include within this the labour and child protection standards which bodies such as the ECtHR use when interpreting the positive obligations of states. 96 EU Charter of Fundamental Rights, OJ C83 30.3.2010, 389–403. Article 5—Prohibition of slavery and forced labour 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. Trafficking in human beings is prohibited. 97 COM (2010) 171 (n 4) 6. 94

122 Märta C Johansson Paper (AOP) on strengthening the EU external dimension on action against human trafficking, for example: The importance of tackling demand with a view to successfully preventing and combating THB should be underlined. In order to discourage demand as a root cause that fosters all forms of exploitation of persons and leads to THB, legislative or other measures, including educational, social, cultural, administrative measures, should be adopted or reinforced. Action should be taken to prevent and discourage the demand for sexual exploitation as well as for labour exploitation, particularly in sectors prone to exploitation such as agriculture, the building industry, the catering industry, the tourist industry and domestic work.98

The recent Directive 2011/36/EU99 has placed more focus on prevention than previous instruments had.100 Amongst other things it refers to the earlier Directive 2009/52/EC providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals (2009 Directive) that required states to criminalize and provide sanctions when employers use the services of trafficked third-country nationals, knowing that they are trafficked.101 The new Directive requires that Member States consider imposing sanctions on those who use any services of any illegally staying trafficking victims, when they know that they are victims of trafficking exploitation, and that this should also include buyers of sexual services. Those encompassed by the new Directive are not only third-country nationals who are trafficked, but also legal residents

98 11450/5/09/REV 5, Annex, 19. The demand dimension of trafficking in human beings (THB) is, nevertheless, not approached systematically within the EU. The Presidency Conclusions from the Conference ‘Towards a multidisciplinary approach to prevention of trafficking in human beings, prosecution of traffickers and protection of victims’ [Brussels, 18–19 October 2010] reported that apart from victim-centred and crime control-centred preventive approaches, a ‘root cause-centred’ approach (one that aims to improve conditions in the country of origin) is also needed. Market or destination-centred approaches were not touched upon at all. 5725/11, Annex, 20. 99 2011/36/EU (n 5). 100 The EU Commission’s Group of Experts on Trafficking in Human Beings uses the term ‘new generation prevention strategies’ in moving from the earlier focus on the symptoms of trafficking to focus on the causes. The strategy includes evaluating the effectiveness of adopted measures through, for example, analyses of consumer demand of disadvantaged and vulnerable groups, such as migrants and children, for the very reason that they are easier to exploit and avoid repercussions, such as prosecution. Opinion No 7/2010, 12–15. 101 2009/52/EC of 18 June 2009, OJ L168 30.6.2009, 24, para 22, 24, Art 9(1)(d) and 10. The Directive was to be transposed before 20 July 2011. See the Swedish governmental study EU:s direktiv om sanktioner mot arbetsgivare, SOU 2010:63. The Swedish Government implemented the Directive only in 2013 (prop 2012/13:125, Genomförande av direktivet om sanktioner mot arbetsgivare; SFS 2013:646) by amending the Law on Foreigners (Utlänningslagen) 20:5. The legislation nevertheless falls short of fulfilling the Directive. The maximum criminal sentence for having an illegally resident employee is imprisonment for one year—and that is when there are aggravating circumstances. It is not discussed or described in the preparatory works how the intentional use of the services of trafficking victims would affect the sentencing, although the need for dissuasive sanctions regarding this is specifically highlighted in section 22 of the 2009 Directive.

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and Union citizens.102 These latter groups had earlier been excluded, as the 2009 Directive was the only instrument to require criminalization when knowingly using the services of trafficked persons, and its purpose was regulation of employers vis-a-vis illegally staying third-country nationals— not a comprehensive anti-trafficking plan. Article 18(4) states: In order to make the preventing and combating of trafficking in human beings more effective by discouraging demand, Member States shall consider taking measures to establish as a criminal offence the use of services which are the objects of exploitation as referred to in Article 2, with the knowledge that the person is a victim of an offence referred to in Article 2.

The customer or employer’s knowledge or reasonable suspicion that there is a situation of exploitation is important. When this is fulfilled it is clear that the customer or employer has benefited from the victim’s difficult situation even though they themselves might not have exerted the pressure directly. There is thus a basis for responsibility through the participation in the exploitation of the victim. One question arises from the fact that Article 18(4) does not specifically state that there should be knowledge that the person is ‘trafficked’; only that they are the victim of an offence referred to in the Article that defines trafficking. A close reading would infer that it is the crime of trafficking that is referred to. The Article also corresponds closely to Article 19 of the 2005 European Trafficking Convention, which refers to ‘knowledge that the person is a victim of trafficking in human beings’. If the requirement of criminalization is only when using the services of a person known to have been trafficked, do states perceive that they are under no obligation to criminalize the use of services of persons when users know that the victims are subjected to servitude or forced labour, even though they might not have been trafficked? It would seem that the EU approach should build on securing existing international obligations rather than present the requirement of considering criminalization as a novel obligation. As mentioned above, the only really new dimension is suggesting the criminalization of the use of forms of exploitation of trafficked persons that do not fall within slavery, servitude and forced labour,103 such as certain forms of prostitution and exploitation of criminal activities.104 In the latest published EU strategy, the Commission presented addressing demand as a key component of prevention and one of its prioritized

102

2011/36/EU (n 5) para 26, Art 18(4). Directive 2011/36/EU (n 5) section 11 holds that forced begging should be understood as a form of forced labour, using the criteria given in the ILO Forced Labour Convention No 29 (1930). Thus, not all forms of begging will be considered to constitute forced labour. 104 Article 2(3) of the EU Directive 2011/36/EU (n 5). 103

124 Märta C Johansson areas.105 How the work is to move forward is, however, still unclear. The EU has not emphasized existing duties to combat servitude and forced labour as a way to reduce the demand for the services of trafficked persons. States have diverging positions on the role of the consumer in affecting the market for the services of trafficked persons, especially with regard to the sex industry. Few European countries have criminalized the purchase of sexual services from trafficked persons, and some states have clarified their intentions not to.106 With regard to services other than sexual ones, it is only states that have implemented the EU Directive 2009/52/EC fully that have criminalized the knowing use of services from illegally staying thirdcountry nationals who are trafficked. Even states, such as Sweden, that have recently implemented the 2009 Directive, have failed to criminalize the use the services of persons that the employer knows are trafficked.107 Member States are already required to prohibit the purchase of such acts from extra-EU nationals, but not from legally staying third-country nationals or EU-nationals who are trafficked. If there already were established national crimes covering servitude or the exploitation of forced or compulsory labour, in line with obligations under, for example, the 1930 Forced Labour Convention, this should cover much of the ensuing exploitation following trafficking for purposes of servitude, forced or compulsory labour. Both trafficked and non-trafficked victims would be covered. Ordinary legislation and oversight securing wages and labour standards certainly would reduce the general market for exploitation. So far, national regulations concerning demand for trafficked persons specifically have varied. The first criminalizations regarding the use of the services of trafficked persons focused on the purchase of sexual services. The UK and Finland both adopted regulations that make criminal the purchase of sexual services from trafficked persons. In the UK the crime is one of strict liability regarding the fact of trafficking, or subjection to force, which means that a prosecutor needs to prove intention regarding the purchase of sex, but not that the customer was aware or even should have known that the person providing the sexual act was subjected to force. In

105 COM (2012) 286 ‘EU Strategy towards the Eradication of Trafficking in Human Beings (2012–2016)’ of 19 June 2012. Council Conclusions on the Strategy were adopted on 25 October 2012, supporting further efforts to reduce demand. The Opinion of the European Economic and Social Committee of 13 December 2012 on the Strategy was more positive to adopting necessary measures to combat the demand for the services of trafficked persons, though criminalization was not mentioned as a necessary measure. The focus on demand as a ‘root cause’ was recently underlined by the EU Trafficking Coordinator, Myria Vassiliadou, at the European Commission. See M Vassiliadou, ‘Current Trends and Policies in Trafficking in Human Beings in the European Union’ (2012) 2 Migration Policy Practice 3, 5–6. 106 Eighth Report of the National Rapporteur on Trafficking in Human Beings, Human Trafficking—Ten Years of Independent Monitoring (The Hague, BNRM, 2010) 76. 107 The Swedish criminalization only covers cases where the person employed lacks a valid residence or work permit. See n 101 above.

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Finland the crime requires knowledge not only of the purchase of sex, but also that the person was trafficked. So far there have been no prosecutions or convictions for the crime in the UK,108 and few convictions in Finland. The states that have a general prohibition on the purchase of sexual acts have higher rates of convictions, and Finland has debated whether to move to a general ban. It should be noted that the purchase of sex from children (persons less than 18 years old) must be criminalized. However, the effectiveness of that criminalization depends to a large extent on the prostitution policies of states.109 Many challenges thus lie ahead in developing a framework that effectively reduces the market for the services of victims of trafficking. Not making a clear distinction between trafficking and ensuing exploitation is suggested to have contributed to the invisibility of those who are not traffickers but nonetheless exploit the victims’ services or work. Perhaps it also has contributed to the lack of a coherent and sufficient response to the exploitation of servitude and forced labour that is not connected to trafficking. The EU effort to encourage criminalization of the use of a person’s services only when there is knowledge that the person has been trafficked thus misses the mark in combatting demand effectively as well as fulfilling the developing requirements on states under ECHR Article 4. The following example given of Sweden, a state that has taken its obligations to combat human trafficking seriously, provides an illustration of the need to clarify these distinctions.

The Invisible Exploitation: Sweden The growing challenges in the area of labour exploitation in Sweden are increasingly examined.110 Sweden faces challenges to providing effective protection against violations of ECHR Article 4, suffering similar deficiencies as France in the case of Siliadin v France, and the UK in CN v United Kingdom.111 This will be illustrated below by two recent cases. In the spring of 2012 a district court in the north of Sweden found two foreign citizens, a father and his son, guilty of usury in relation to three 108 GRETA Report Concerning the Implementation of the COE Convention on Action against Trafficking in Human Beings by the United Kingdom, 12 September 2012, para 316, at: www.coe.int/t/dghl/monitoring/trafficking/Docs/Reports/GRETA_2012_6_FGR_GBR_en.pdf. 109 K Kelemen and M Johansson, ‘Still Neglecting the Demand that Fuels Human Trafficking: A Study Comparing the Criminal Laws and Practice of Five European States on Human Trafficking, Purchasing Sex from Trafficked Adults and from Minors’ (2013) European Journal of Crime, Criminal Law and Criminal Justice 21, 247–89. 110 C Woolfson, P Herzfeld Olsson and C Thörnqvist, ‘Forced Labour and Migrant Berry Pickers in Sweden’ (2012) 2 International Journal of Comparative Labour Law and Industrial Relations 147. 111 CN v the United Kingdom (n 13).

126 Märta C Johansson compatriots.112 The three men had been invited to Sweden by their former employer to work in a specialized body-shop, and the information they were given, and which formed the basis for their work permit, was fulltime employment with compensation according to Swedish standards. After arrival, they were compensated for part-time work, although they worked more than full-time. They were also forced to withdraw large amounts of the compensation that they received in line with their contracts into their accounts from the company, and give it back as cash to the father and son. In effect, they had arrived in Sweden expecting to receive a reasonable salary, but were instead paid a pittance, similar to the very low salary they had previously been paid in their home country. Some months they were not paid at all. The three men were told that their work permits were tied to their employer, and would be withdrawn unless they consistently worked overtime and agreed to return part of their salary. On conviction the father and son were given suspended sentences113 and were required to pay each employee 15 000 Skr. The father and son’s actions constituted forced labour according to the definition in Article 2(1) of the 1930 Forced Labour Convention:114 1) there was work exacted; 2) the ‘menace of any penalty’ can consist of a loss of rights or privileges,115 which in this case could be understood to consist of the threatened loss of work permit unless they returned large amounts of their salary and worked unreasonable hours; 3) there had also been interference with the criterion of voluntary offer to work, as they were induced by deception116 regarding the terms of their work in Sweden. It could also be argued that the actions constituted trafficking in human beings:117 1) means to bring the men to Sweden were taken and they were received here; 2) by deception regarding the terms of their work; 3) for the purpose of exploitation for forced labour.

112

Summary of judgment from Skellefteå Court of First Instance, B 179-12 (2012-04-19). The sentencing range for usury is from a fine to a maximum prison sentence of two years. The sentencing range for the aggravated crime is a prison sentence from six months to a maximum of four years. Criminal Code 9:5. 114 Forced labour according to Article 2(1) of ILO Convention on Forced Labour No 29 (1930): ‘[A]ll work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’. 115 Committee of Experts Report III (Part 1B) on the 1930 Forced Labour Convention and the 1957 Abolition of Forced Labour Convention (n 31) 20. 116 ibid. 117 See the Palermo Protocol definition of trafficking in persons above (n 22). 113

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In 2010 a Swedish citizen was convicted for having exploited five young women from their common native country in domestic work and as nannies.118 The young women had been deceived as to the terms of the promised work, and had not received any pay. Their identities were also used in order for their employer to purchase objects for herself, causing them to become indebted. In the District Court the employer was convicted of human trafficking, but though the Appellate Court agreed that the employer had exerted strong influence over the young women, it found that she had not ‘controlled’ them, as they had not been locked in or under constant threat.119 The conviction for human trafficking was thus overturned, and she was instead convicted of fraud and sentenced to imprisonment for 10 months.120 The young women were not awarded any compensation for the violation itself as under Swedish law the crime of fraud is not such that it can lead to a violation of personal integrity. Similarly to above, the situation amounted to forced labour according to the definition in the 1930 Convention on Forced Labour. Thus in both cases the convictions were insufficient to match the violations committed, and in the latter case of fraud, the victims were denied compensation, in breach of both ECHR Articles 4121 and 13.122 It is clear that there is a lacuna in Swedish legislation with insufficient criminalization of forced labour, in violation of both the 1930 Forced Labour Convention and the ECHR. Less than 10 years ago there existed a crime that to a certain extent could have filled this gap. In preparation for the first revision of the crime of trafficking in human beings,123 it was noted that there existed a crime that prohibited placing another person in a desperate situation (försättande i nödläge).124 The crime was considered to overlap with trafficking

118 Summary of judgment from Solna Court of First Instance, B 421-08 (2010-06-18); Svea Court of Appeal, B 5971-10 (2011-06-01). 119 At this time the Swedish criminalization of human trafficking required that the victim be under the trafficker’s ‘control’, thus adding another requirement to the Palermo definition. The young women had been threatened with consequences if they did not comply, but the Court did not find the threats to cause the level of pressure that they perceived to be required for fulfilment of the crime. 120 The sentence for fraud (Criminal Code 9:1) is a prison sentence for a maximum of two years. In this case the Appellate Court considered the several crimes she was convicted for and also based the sentence to prison on their perceived risk for recidivism. 121 As it contains in it the obligations under ILO Convention Article 25. 122 Article 13—Right to an effective remedy Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. 123 The crime of trafficking in human beings was regulated in Swedish law in 2002 (SFS 2002:436), and was revised in 2004 (SFS 2004:406) and 2010 (SFS 2010:371). 124 Criminal Code 4:3: Den som, i annat fall än som avses i 1, 1 a eller 2 §, genom olaga tvång eller vilseledande, föranleder att någon kommer i krigs- eller arbetstjänst eller annat sådant tvångstillstånd eller förmår någon att bege sig till eller stanna kvar på utrikes ort, där han eller hon kan befaras bli utsatt för förföljelse eller utnyttjad för tillfälliga sexuella

128 Märta C Johansson in humans, and determined to be outdated, unnecessary and removable.125 Though the crime would not have responded to all the requirements of sufficient criminalization under ECHR Article 4, it was originally adopted to respond to exploitation of forced labour,126 and would have been more appropriate to deal with both cases described above. The maximum sentence was imprisonment for 10 years, and formed a basis for claims to compensation by victims for violations of dignity. As the Swedish courts found that the criminal actions in the cases above did not amount to trafficking in human beings, the exploitation of forced labour was responded to with minor crimes with an insufficient range of sentences available, and in one case there was no legal possibility to be awarded compensation. So far there are only a handful of convictions in Sweden for human trafficking for non-sexual purposes, such as for begging, stealing, and blueberry picking.127 As in many other countries, the crime of human trafficking is complex and difficult for prosecutors to prove, apart from the fact that it is not structured to deal appropriately with ensuing exploitation. For cases of exploitation that are not determined to constitute human trafficking, but that nevertheless fall within ECHR Article 4 and thus involve a positive duty on states to combat effectively, there are no appropriate Swedish crimes. Either the crimes have a threshold that does not encompass the entire range of forced labour, or the punishments are too low.128 The crimes with too lenient sentences that prosecutors have used when prosecuting for the abuses listed in ECHR Article 4 are fraud129 and

förbindelser eller på annat sätt råka i nödläge, döms för försättande i nödläge till fängelse, lägst ett och högst tio år. Är brottet mindre grovt, döms till böter eller fängelse i högst två år. (Author’s emphasis). 125 Prop. 2003/04:111, stycke 9.10: ‘I viss utsträckning överlappar brottsbeskrivningarna för brotten försättande i nödläge och människohandel för sexuella ändamål varandra redan i dag. Med den reglering av människohandelsbrottet som här föreslås kommer de flesta straffbara förfaranden som i dag regleras i 4 kap. 3 § brottsbalken att falla under tillämpningsområdet för 1 a § i samma kapitel. Bestämmelsen om försättande i nödläge framstår i dag som omodern och föråldrad. Bestämmelsen har, enligt tillgänglig statistik, tillämpats sällan. Sedan år 1990 har endast två domar avseende försättande i nödläge meddelats. Bestämmelsen har inte tillämpats sedan år 1999, då ett beslut om åtalsunderlåtelse meddelades. Det är svårt att förutse att det i praktiken skulle kunna finnas några straffvärda förfaranden som riskerar att falla utanför det straffbara området om bestämmelsen tas bort. De förfaranden som i dag utgör ett problem kriminaliseras på ett mer ändamålsenligt sätt genom människohandelsbrottet. Samtliga remissinstanser har också tillstyrkt förslaget att bestämmelsen skall upphävas eller lämnat förslaget utan erinran. Mot denna bakgrund gör regeringen bedömningen att det saknas något egentligt behov av en särskild bestämmelse om försättande i nödläge vid sidan av det människohandelsbrott som nu föreslås.’ 126 Woolfson, Herzfeld Olsson and Thörnqvist (n 110) 165, fn 74. 127 Judgment from Hudiksvall’s Court of First Instance, B 2220-11 (2012-06-15). 128 An exception is the crime of purchase of sexual services, though this involves a blanket prohibition on purchase without consideration of the victim; it is thus not necessary to show that the exploitation amounted to forced labour. 129 Criminal Code 9:1 (BrB 9:1—bedrägeri).

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usury.130 Crimes with elements that do not encompass all forced labour, but that could be used in some cases are assault,131 unlawful coercion132 and unlawful conduct.133 So far most attention has been focused on traffickers and their ensuing exploitation. When another person exploits the trafficked person, there are few appropriate crimes with which to determine their accountability. Regarding victims of servitude and forced labour that have not been trafficked there are, similarly, few appropriate crimes with which to hold the exploiters accountable. The Swedish Parliament has an excellent opportunity to set up legislation to deal with the market for exploitation before the first cases at the ECtHR reveal Sweden to be in breach of its positive obligations under ECHR Article 4.

130

Criminal Code 9:5 (BrB 9:5—ocker). Criminal Code 3:5 (BrB 3:5—misshandel). 132 Criminal Code 4:4 (BrB 4:4—olaga tvång). 133 Criminal Code 8:8 (BrB 8:8—egenmäktigt förfarande). Actions such as taking another person’s documentation, eg their passport, could be punishable under this provision. 131

9 Ne Bis in Idem and the European Legal Tsunami of 2013: A Vision from the Bench1 OLA ZETTERQUIST*

INTRODUCTION

S

WEDEN HAS, SINCE 1995, been a state with three constitutional orders—national, European Union and the European Convention on Human Rights (ECHR). Thereby, 1995 marked a very distinct change in Swedish constitutional law. As a traditional dualist legal order, Sweden for a long time kept a rather rigid flood-gate between national and international (or transnational) law. This was true of European law until 1995 and still holds true for international law in general. Since 1995 the neat distinction between national law and European law has become much more blurred. EU law, by virtue of its distinguishing constitutional principles, operates directly and effectively in Swedish courts and administrative authorities and the ECHR was adopted as a Swedish law in 1995. Still there is a striking difference between the effectiveness of EU law and the ECHR within the Swedish legal order, somehow reflecting the old floodgate principle—whereas EU law flows freely, the ECHR trickles down the national legal order in a slower fashion. This distinction was brought to the fore in 2013 when the principle of ne bis in idem came crashing down on the Swedish criminal procedure, much like a tsunami, breaking all the previous flood-gates. Like all tsunamis this one created a considerable mess when the system needed to be overhauled by the Swedish courts on the

* Judge at the Court of Appeal for Western Sweden; Associate Professor of European Law at the University of Gothenburg. 1 This chapter is the result of a presentation I made at the conference Ne Bis in Idem in the Laws of Europe after Åkerberg-Fransson, organized by the Swedish Network for European Legal Studies in Lund in November 2013. The theme for my panel was ‘The Judge Vision’.

132 Ola Zetterquist spur of the moment. This chapter expresses my reflections and visions as a Swedish judge on the implications of the events of 2013. Needless to say, the views expressed are my own and they are by no means shared by all Swedish judges.

CALM SEAS? THE LEGAL SETTING BEFORE THE FLOOD-WAVE

The eruption of 2013 was caused by the traditional Swedish system of having parallel systems of sanctions for tax-fraud—one of administrative law and one of criminal law. This parallel system also owes to the fact that Sweden has a dual court system of administrative courts and courts of general jurisdiction. The same incorrect tax-file could thus give rise to a tax-surcharge under administrative law (subject to appeal to an administrative court) and, provided some subjective criteria were fulfilled, a charge for tax-fraud under criminal law (subject to the jurisdiction of a court of general jurisdiction). The parallel system, which was introduced as late as 1972, has been questioned more or less from the outset as being incompatible with the principle of ne bis in idem in general and, later on, with the right laid down in Article 4 of Protocol 7 to the ECHR in particular. It was fairly clear early on that the tax-surcharge as such fell within the scope of Article 6 of the ECHR and was thus of a penal nature.2 Nevertheless, the system survived intact for a long time, even with the explicit blessing of the European Court of Human Rights (ECtHR) itself, since it was held that the tax-surcharge and the tax-fraud constituted two different crimes.3 As with many tsunamis, this one also began with not too dramatic a tremble of the ocean far out at sea. In a remote place in Russia, a disorderly soldier was disciplined for abusing his military superiors and subsequently charged in criminal proceedings for the same act. As the case—Zolotukhin v Russia4—went before the ECtHR for a review of the right not to be punished twice for the same offence, the Court took the opportunity to revise its previous incoherent case law on the question of what constitutes the ‘same offence’. In the judgment of 10 February 2009, the Court stated that the same offence (idem) should be understood as ‘…facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space…’. This new case law meant that the definition of the idem element had shifted from a legal to a factual one. The new definition was subsequently confirmed in a series of other

2 ECtHR cases, Bendenoun (App no 12547/86, ser A 284); Janosevic (App no 34619/07); and Vulic and Västberga taxi (App no 36985/97). 3 ECtHR case Rosenquist (App no 60619/00). 4 ECtHR case Zolotukhin v Russia (App no 14939/03).

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cases.5 One case (Ruotsalainen) from Finland was of particular interest for Sweden since it involved the relationship between a tax-surcharge and a criminal charge for the same act.

A FLOOD-WAVE IS FORMING—HOW DID WE GET INTO THIS MESS?

The new case law from Strasbourg meant that the Swedish system was once again put on trial before both of the two Swedish supreme courts in September 2009 and March 2010 respectively.6 The tremor from Strasbourg had been sensed in Stockholm but still the judges of the two courts upheld the Swedish system with parallel sanctions (although two judges did dissent in the Supreme Court). The arguments given were not very convincing from a legal point of view. The Supreme Administrative Court held that the Swedish system was special in the sense that it had ‘distinguishing features’ and that consideration was given to the outcome in the criminal proceeding when an administrative court decides on the issue of the tax-surcharge. The Court did not explain how these ‘distinguishing features’ would prevent the application of the ECHR to the case at hand. The Supreme Court, on the other hand, acknowledged that the old definition that the Swedish system had been built on had been overrun by the Zolotukhin judgment. It nevertheless held that there was no ‘clear support’ for the assumption that the Swedish system was incompatible with the right of ne bis in idem laid down in the ECHR. There was no further elaboration on the more precise meaning of these apparently crucial constitutional concepts. The cases did not go down very well among the Swedish legal establishment. No scholar has even intended to defend the reasoning of the supreme courts. On the contrary, the courts were subject to massive academic criticism for showing a seemingly cavalier attitude towards the ECHR and the ECtHR. What was more surprising was that the case law of the Supreme Court was met with open defiance by around 10 of the lower courts in Sweden.7 Such an open revolt is unprecedented in Swedish legal history and is in itself a significant testimony to the impact that the ECHR has had on Swedish judges. On the other hand, and however interesting judicial rebellion is, it should not be forgotten that the vast majority of Swedish judges stood loyally by the Swedish supreme courts. The system of parallel 5 ECtHR cases Ruotsalainen (Appl no 13079/03); Maresti (App no 55759/07); and Tsonev (App no 2376/03). 6 NJA 2010 s 449 (the Supreme Court) and RÅ 2009 ref 94 (the Supreme Administrative Court). 7 Among them the Court of Appeal for Western Sweden in the case B 2432-09, Magnus Olofsson v Ekobrottsmyndigheten, judgment of 23 June 2010. I was the Judge Rapporteur in that case.

134 Ola Zetterquist sanctions was thus stably maintained in Sweden despite the fact that the case law of the ECtHR had undergone a decisive shift. Nevertheless, one small district court in Haparanda spotted what other rebellious Swedish courts had failed to see, namely that there was an EU law dimension to the issue. The right of ne bis in idem contained in the ECHR has its equivalent in Article 50 of the EUCharter of Fundamental Rights. The district court of Haparanda asked for a preliminary ruling from the ECJ pointing out that some of the tax surcharges concerned VAT, an issue that is extensively regulated by EU legislation. When the ECJ subsequently in the Åkerberg Fransson8 case confirmed the Zolotukhin principles and held that EU law was indeed applicable to issues of tax surcharge and tax fraud (even though in the actual case these had no apparent connection to cross-border issues) the game was finally up for the Swedish courts. By virtue of the EU constitutional principles of supremacy, pre-emption and effectiveness, the Åkerberg Fransson judgment struck the Swedish system like a tsunami sweeping away any requirements of ‘clear support’ for its full and effective application. Both the Supreme Court and the Supreme Administrative Court in plenary sessions made complete turnabouts in 2013 accepting that the Zolotukhin judgment had actually meant the end for the Swedish system of parallel sanctions.9 The plenary decisions in turn meant that the legal system was flooded with applications for restitution and compensation from the individuals who had been sentenced by Swedish courts between 2009 and 2013. It is estimated that about 1000 persons were wrongly sentenced for tax fraud during this period. ‘I ORDER YOU NOT TO RISE ONTO MY LAND…’10—WHY DID WE GET INTO THIS MESS?

As has been pointed out above, the mess of 2013 was mainly judge-made. None of the supreme courts (of 2009 and 2010 respectively) even made an attempt to argue substantially why the Swedish system was compatible with the right of ne bis in idem in the ECHR. An inevitable question in this regard is why this mess came about in the first place.

8

Case C-617/10 Hans Åkerberg Fransson Judgment 26 February 2013, ECR 2013:105. NJA 2013 s 502 (the Supreme Court) and HFD 2013 ref 71. This fact was further confirmed when the Swedish Supreme Court held that restitution was to be given to those who had been sentenced for tax fraud after the date of the Zolotukhin judgment. 10 The quote refers to the Danish king Canute’s order to the sea not to rise onto his land. The full quote goes ‘You are part of my dominion, and the ground that I am seated upon is mine, nor has anyone disobeyed my orders with impunity. Therefore, I order you not to rise onto my land, nor to wet the clothes or body of your Lord’, from Huntingdon’s Chronicle of the History of England, 1129. 9

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A given answer is that Sweden, unlike many other European states, has a system of parallel jurisdiction. This logically means that ne bis in idem will have much more dramatic consequences in such a system than in a system where administrative and criminal law are handled within a single court and a single case. Still, this fact alone cannot explain the tenacity with which the Swedish courts upheld the Swedish system until the ECJ delivered the Åkerberg Fransson judgment. I believe that a more complete answer must be sought in the basic principles of the Swedish constitution. Since 1974, the Swedish constitution has embodied a strongly unitary parliamentary democracy based on the principle of majoritarian democracy. This constitutional foundation means that the Swedish courts have not had any significant constitutional role vis-à-vis the political organs of the state, ie the Parliament (the Riksdag) and the Government. Until a constitutional reform in 2011 the courts were also regulated in the constitution together with the administration, further underlining their subordinate constitutional position. A specific provision (eliminated in the reform of 2011) also prevented the courts from exercising judicial review in relation to the Parliament or the Government unless there was a ‘manifest error’. The Constitution of 1974 was, and still is, thus much more focused on parliamentary political democracy rather than separation of powers and judicial review. Consequently, there is a conspicuous lack of case law on questions of constitutional compatibility of laws or government regulations.11 In the same vein, Sweden is also one of the very few countries where no court has dealt with the question of the limits of EU competencies. This is not to say that Swedish courts are hostile to rights adjudication, only that they seem to prefer rights to be given in ordinary legislation rather than in constitutional instruments which may be at odds with ordinary legislation. This attitude is very much in line with the basic principle of the Swedish Constitution that the Parliament is the supreme institution and the foremost representative of the Swedish people. In this sense the dualist principle of international law also reflects a profound constitutional democratic principle—the Parliament is to have the last word on what counts as law before a Swedish court. This is why the flood-gate was there in the first place.

11 A notable exception is to be found in the areas of freedom of the press and other massmedia which are regulated in separate constitutional instruments (the Freedom of the Press Act and the Freedom of Expression Act). However, it should not be forgotten that the ultimate purpose of these instruments is to facilitate the formation of public opinion which is necessary for a well-functioning political democracy.

136 Ola Zetterquist RIDING THE WAVES—THE CHALLENGE OF CONSTITUTIONAL PLURALISM

Swedish courts are, as pointed out above, rather skeptical to exercise judicial review on the basis of one constitution, let alone three. It may come as no surprise then that Swedish courts have had something of a struggle with radical changes to the legal situation when such changes emanate from one of the European courts. Such skepticism could in principle be defended with the democratic argument that courts are not elected whereas parliaments are. Nevertheless, such an argument is somewhat too simplistic. Sweden, like all other Member States, has democratically decided that we should be a part of the common European legal order where courts have featured as key institutions from the start. Furthermore, the original decisions to join the EU and the ECHR have been confirmed on numerous occasions when ratifying new treaties (of the EU) or protocols (of the ECHR). They consequently have a democratic legitimacy stemming not only from one parliament but from 28 (the EU) and 47 (the ECHR) respectively. We cannot say that Swedish law is democratically superior to European law on that basis alone. It is remarkable in itself that most European states now share a law that is not only common and binding between these states (as treaties under public international law are) but common and binding also within these states (as constitutional law is). This is no small accomplishment for a continent that has historically been busy with frequent wars of conquest between its different members. At the same time if European law is to have any real meaning it must mean substantially the same thing within all the Member States or else the achievements of the past decades will slowly slide back towards public international law. A commitment to a common European legal order necessarily requires the national court—where most of the cases involving European law are after all raised and decided—to pay attention to and to be loyal with the European courts and to draw the proper conclusions from their case law. As such this is not a new notion. It has been said hundreds of times by governments and courts alike and was clearly underlined in The Action Plan of the High Level Conference on the Future of the European Court of Human Rights (the Interlaken Declaration) of 19 February 2010. The Declaration was adopted by all the Member States and states the following: 4. The Conference recalls that it is first and foremost the responsibility of the States Parties to guarantee the application and implementation of the Convention and consequently calls upon the States Parties to commit themselves to… c) taking into account the Court’s developing case-law, also with a view to considering the conclusions to be drawn from a judgment finding a violation of the Convention by another State, where the same problem of principle exists within their own legal system.

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The Declaration thus underlines the basic principles of loyalty and subsidiarity and clearly calls on the national courts to think and act like the European Court of Human Rights itself. Still the ambiguity of the constitutional pluralism seems to lie at the heart of the recent years of Swedish turmoil. Constitutional pluralism must be applied in deed, not words alone, but apparently it is still a tricky question to be both European and Swedish at the same time.

ONLY THE DEAD FISH FOLLOW THE CURRENT—RATIO AND AUCTORITAS

A common misconception is that constitutional pluralism is the same as blind obedience to the European courts. That would only be the case if the desired outcome is a European state in the same style as the states of old where national constitutions would ultimately be subordinated to the European constitution. The key concept in constitutional pluralism is heterarchy rather than hierarchy.12 Put differently, constitutional pluralism requires focus on substance, not form. It means goodbye to the old Kelsenian norm-hierarchy, so closely associated with the sovereign state, and hello to value-hierarchies. In a heterarchic system of constitutional pluralism there must be a basic loyalty to the principles that are common to the members. For example, all Member States of the EU are committed to the basic values—human dignity, freedom, democracy, equality, the rule of law and respect for human rights—identified in Article 2 of the Treaty on the European Union. This does not detract from the fact that the more precise interpretation of these values may vary from one state to another. Still, it is clear that both Sweden and Germany are committed to, say, freedom of expression. A Swedish court and a German court can intelligibly reason over the same problem of freedom of expression supporting their respective interpretation on arguments of principle which can be easily understood by the other court. This is, in itself, not rocket-science. Any legal order is based on the two pillars of authority and reason. A legal system cannot, unlike philosophy, be exclusively built on reason since it would become un-governable. A piece of legislation or a ruling by a superior court ought prima facie to be heeded by the lower courts. At the same time, it is equally clear that it cannot rest on authority alone. Indeed, if authority is all that matters, you 12 In the words of the former Advocate General Maduro: ‘Heterarchy is superior to hierarchy as a normative ideal in circumstances of competing constitutional claims of final authority, provided that those competing constitutional claims are of equal legitimacy or, at least, cannot be balanced against each other in general terms.’ ‘Three Claims of Constitutional Pluralism’, available at www.wzb.eu/sites/default/files/veranstaltungen/miguelmadurothreeclai msofconstitutionalpluralismhu-collmay152012.pdf.

138 Ola Zetterquist do not need a legal order at all. In fact, the basic legitimacy of the judicial power rests on reason, not authority. It was in this vein that the American founding fathers held the judiciary to be the ‘least dangerous’ state-power.13 A legal order thus requires that both authority and reason are observed by the courts. One cannot be abandoned entirely without compromising the legitimacy of the whole. No court of law, whatever the constitutional setting, goes casually about setting aside legislation or established legal precedent. A court that imposes ‘its’ values on the political bodies will always run the risk of being branded as ‘political’ without the political legitimacy that comes with elections. However, there is a final red line where a court must assess substantially (on arguments of principle) whether the constitution has been respected by the legislator or not. This is, as the US Supreme Court famously stated in 1803, ‘the very essence of judicial duty’.14 To duck this duty by introducing empty notions like ‘clear support’ or ‘distinguishing features’ without a shred of substance is much like a legal equivalent to post-modernism.15 Such an approach in turn leads to an intellectual collapse which undermines the very legitimacy upon which judicial power rests. If a national court is unconvinced by the reasoning of one of the European courts, it is more appropriate to argue the case substantially than to hide behind notions that even fresh law students recognize as empty shells. A good example of this more constructive approach can be found in the dialogue that developed between the German Constitutional Court and the ECJ over the standing of fundamental rights in (then) EC law. The ECJ picked up the challenge of the German Court and developed a substantial doctrine on the protection of fundamental rights at the European level. This approach also connects to the old republican constitutional ideal that tension and friction, as opposed to stagnation and rigidity, are beneficial to the system as a whole as long as

13 ‘… the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them… It may truly be said to have neither FORCE nor WILL, but merely judgment ...’, Alexander Hamilton, ‘The Federalist Papers’, no 78 available at http://thomas.loc.gov/home/ histdox/fed_78.html. 14 ‘So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case… the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.’ Marbury v Madison 5 US (1 Cranch) 137 (1803). 15 Such a terminology reminds us of what John Locke in 1689 called ‘abuse of words’: ‘… there is no such way to gain admittance, or give defence to strange and absurd doctrines, as to guard them round about with legions of obscure, doubtful, and undefined words. Which yet make these retreats more like the dens of robbers, or holes of foxes, than the fortresses of fair warriors: which, if it be hard to get them out of, it is not for the strength that is in them, but the briars and thorns, and the obscurity of the thickets they are beset with. For untruth being unacceptable to the mind of man, there is no other defence left for absurdity but obscurity.’ An Essay Concerning Human Understanding, III:X:9, vol II (New York, Dover Publications, 1959) 128.

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there is a basic agreement to stick together. In a system of healthy friction based on principle, rather than authority, the overall reasoning improves to the benefit of everyone involved. Such a dialogue is however completely absent when the Swedish supreme courts set about to engage the question of ne bis in idem. As has been said before this reluctance may be due to the fact that Swedish courts have not had any prominent constitutional role in the past where the constitution has emphatically underlined the supremacy of the political institutions. The very reason behind the ‘clear support’ requirement may probably be a (not in itself irrational) desire to leave it to the political institutions to enact changes of the legal situation. Still, such arguments overlook the fact that Swedish courts, for better and worse, now operate in a legal landscape with a plurality of constitutional sources where the road-map of 1974 may not be the best guide anymore. A further undesirable consequence of staying out of the dialogue is that it is hard to influence through silence. Swedish courts may very well miss the chance to influence the European courts if they are too reluctant to engage with them.

AFTER THE DISASTER—LESSONS LEARNED AND A BRIGHTER FUTURE

To sum it up, constitutional pluralism thus means that reason—principle if you like the terminology of Dworkin16—becomes more important than authority. This cannot be but a welcome evolution for those of us who— like Dworkin—like to take rights seriously. A court that takes rights seriously does not duck hard questions of legal principle by introducing opaque concepts with unclear meaning in order to facilitate the situation of the political bodies. A constitutional doctrine that subordinates legal reasoning to political expediency is hardly appealing in the first place anyhow. Instead we can hopefully look forward to a situation where clashes focus on the substance of the arguments rather than their outward form. It is through dialogue and interaction, not isolation and silence, that the common principles can develop dynamically. The well-reasoned cases from the Swedish supreme courts of 2013 seem to mark a turning point in this respect. After the tsunami has subsided it is clear that a lesson has been learned and a new, more principled course taken. What is more, this new course increases the prospect of Swedish courts influencing the European courts more in the future than in the past. Therefore, I believe the day is to be welcomed when Swedish courts question the rulings of the ECJ and the ECtHR constructively by arguing that 16 R Dworkin, Taking Rights Seriously (Cambridge, MA, Harvard University Press, 1977) 22f.

140 Ola Zetterquist they are contrary to the fundamental values that underpin the EU, the ECHR, as well as the Swedish constitution and not because they are problematic in regard to some piece of cherished Swedish legislation. That is my vision as a Swedish judge.

10 Effective Sanctions as the One-dimensional Limit to the Ne Bis in Idem Principle in EU Law MAGNUS GULLIKSSON*

INTRODUCTION

T

HE NE BIS in idem principle in European law has undergone a noticeable development since the beginning of the millennium. This development can be attributed to a range of factors, the increased applicability to cross-border or otherwise transnational situations being a particularly important one. However, the expanding scope of the ne bis in idem principle within European law in the last few years cannot just be attributed to an inclination to address cross-border situations. Developments in the case law of the European Court of Human Rights (ECtHR) suggest an increase of the minimum level of protection provided by the ECHR regime.1 Furthermore, the introduction of the EU Charter of Fundamental Rights (‘the Charter’) in 2000,2 legally binding since the Lisbon Treaty entered into force in December 2009, conveys an image of Union law ever more steeped with a ‘rights discourse’.3 Yet, this expanding scope of the ne bis in idem principle has not progressed without conflict with other fundamental interests of EU law. Recent rulings by the Court of Justice of the European Union (CJEU) suggest that the protection of fundamental rights such as the ne bis in idem principle reaches a limit when faced with the demand of uniform and effective application of Union law and its corollary, the enforcement of effective sanctions. While historically the demand for uniform and effective * Doctoral candidate in Procedural Law, Uppsala University. I am grateful to Professor Torbjörn Andersson for comments on the manuscript to this chapter. Any remaining errors are my own. 1 See below at n 13. 2 Charter of Fundamental Rights of the European Union [2000] OJ C-364/1 (2000 version). 3 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C-306/1.

142 Magnus Gulliksson application and enforcement of Union law has been a cornerstone for the EU legal order, the successive expansion into the field of criminal procedural law induces new challenges, particularly if established formulas for balancing effectiveness and enforcement of Union law against national law are maintained. As will be shown in this chapter, there are good reasons to question whether anxious demands for effective application and enforcement of Union law should be toned down, as otherwise this quest for uniformity and effectiveness could have the opposite effect. Although the discussion in this chapter aims at these more general issues, the starting point will be recent developments both with respect to the ne bis in idem principle in European law and to the practice applied up until recently in Sweden, allowing for successive administrative and criminal proceedings for the same act of tax evasion. A brief outline of these developments will therefore be given.

BACKGROUND: THE EUROPEAN NE BIS IN IDEM PRINCIPLE IN SWEDISH COURTS PRIOR TO ÅKERBERG FRANSSON4

As indicated above, the interest of promoting and protecting the right to freedom of movement seems to be important as a driving force for the development of the ne bis in idem principle in EU law. Nowhere else is this more prominent than in Article 54 of the Convention Implementing the Schengen Agreement (CISA) and its related case law.5 The CISA was signed in 1990 and came into force in 1993, but it was not until the Amsterdam Treaty came into force on 1 May 1999, that the Schengen acquis became part of Union law.6 Starting in 2003 with the ruling in Gözütok and Brügge,7 the Court of Justice of the European Union (CJEU) has delivered a series of judgments on the interpretation of Article 54 CISA.8 One of the more 4 The following account of case law on the European ne bis in idem principle from Swedish courts does not purport to be comprehensive and is kept brief intentionally, but should provide readers unfamiliar with Swedish law some background to the developments leading up to the ruling in Case C-617/10 Hans Åkerberg Fransson EU:C:2013:105. 5 Convention Implementing the Schengen Agreement [2000] OJ L-239/19. 6 Amsterdam Treaty, Protocol (No 2) integrating the Schengen acquis into the framework of the European Union [2006] OJ C-321E/191. 7 Criminal proceedings against Hüseyin Gözütok (C-187/01) and Klaus Brügge (C-385/01) [2003] ECR I-1345. 8 Case 469/03 Criminal proceedings against Filomeno Mario Miraglia [2005] ECR I-2009; Case C-436/04 Criminal proceedings against Léopold Henri van Esbroeck [2006] ECR I-2333; Case C-150/05 Jean Leon Van Straaten v Staat der Nederlanden and Republiek Italië [2006] ECR I-9327; Case C-467/04 Criminal proceedings against Giuseppe Francesco Gasparini and Others [2006] ECR I-9199; Case C-288/05 Criminal proceedings against Jürgen Kretzinger [2007] ECR I-6441; Case C-367/05 Criminal proceedings against Norma Kraaijenbrink [2007] ECR I-6619; Case C-297/07 Criminal proceedings against Klaus Bourquain [2008] ECR I-9425; Case C-491/07 Criminal proceedings against Vladimir Turanský [2008]

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important findings of the Court was with respect to the idem element. In Van Esbroeck, the Court found that identity of acts (idem) should not be decided based on the legal classifications of the acts or the protected legal interest, but rather on the material acts understood as ‘a set of concrete circumstances which are inextricably linked together’.9 Meanwhile, and in the aftermath of the Tampere Council Conclusions,10 codification of the ne bis in idem principle saw its dawn in several framework decisions, of which the Framework Decision on the European Arrest Warrant (FDEAW) is perhaps the most known.11 In parallel with the evolution of the ne bis in idem principle in EU law, the practice of imposing both administrative and criminal sanctions for essentially the same unlawful act was subject to examination by Swedish courts.12 Specifically, a recurring issue was whether Article 4 of the 7th Additional Protocol of the European Convention on Human Rights (ECHR) would prevent the practice of imposing both tax surcharges in administrative proceedings and instigate criminal proceedings on tax offences for the same acts. The question seemed to be settled until 2009 when the ECtHR delivered its ruling in Zolotukhin.13 That case concerned successive administrative and criminal proceedings regarding the same acts, the former being considered as penal in nature. The ECtHR in Zolotukhin took the opportunity to harmonise its rather divergent case-law on the ne bis in idem principle, in particular with respect to the idem element. Inspiration was drawn from inter alia the CJEU ruling in Van Esbroeck.14 In short, the ECtHR concluded that what constitutes ‘the same offence’ (idem) should not depend on legal classification, but rather on the acts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space.15

ECR I-11039; Case C-129/14 PPU Criminal proceedings against Zoran Spasic [2014] Judgment 27 May 2014 (nyr); Case 398/12 Criminal proceedings against M [2014] Judgment 5 June 2014 (nyr). 9

Van Esbroeck (n 8) paras 35–36. Tampere European Council Conclusions, 15–16 October 1999. 11 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L-190/1, Articles 3(2), 4(3) and 4(5). See also eg Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties [2005] OJ L-76/16 Article 7(2) (a); Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union [2008] OJ L-327/27 Article 9(1) (c). 12 For cases up until 2009, see eg NJA (Nytt Juridiskt Arkiv, the Supreme Court’s publication of rulings) 2000 s 622, NJA 2004 s 510 I och II (finality of decision); NJA 2004 s 840 I och II (environmental fines); NJA 2005 s 856; RÅ (Regeringsrättens Årsbok, the Supreme Administrative Court’s publication of rulings) 2002 ref 79. 13 Sergey Zolotukhin v Russia (App no 14939/03), Judgment 10 February 2009. 14 Zolotukhin (n 13) paras 70–78. 15 Zolotukhin (n13) para 84, cf Van Esbroeck at n 9 above. 10

144 Magnus Gulliksson This change in approach to the idem element would seem to undermine the practice of sequential proceedings on tax surcharges and tax offences. Indeed, in September 2009, the Swedish Supreme Administrative Court ruled on the issue.16 However, the Court found that Article 4, 7th Additional Protocol to the ECHR should be interpreted with due regard to the particular outline of the legal order in each Convention State respectively. The Court acknowledged the system in Sweden with parallel administrative and general courts, which have the purpose of ensuring a high level of knowledge in their respective fields. Furthermore, the Court held that too technical an interpretation of the ne bis in idem rule in the ECHR could cause unpredictable consequences for the prevailing order, despite that the latter could not justifiably be held to violate fundamental human rights. The Court went on to note that the ECtHR, prior to its ruling in Zolotukhin, had found the Swedish system with successive proceedings on tax surcharges and tax offence not to be in violation of the ne bis in idem principle in Article 4, 7th Additional Protocol.17 Finally, the Supreme Administrative Court rather laconically noted that the rulings in Zolotukhin and Ruotsalainen18 showed ‘a development’ in the case law of the ECtHR, but that none of the rulings concerned the Swedish legal order ‘with its particular characteristics’. According to the Supreme Administrative Court, the Swedish legislation therefore was in conformity with the ECHR. In 2010, the Swedish Supreme Court (Högsta domstolen) was faced with two cases where tax surcharges had been imposed for tax evasion by erroneous deductions for capital loss (case I) and failure to state labor incomes (case II).19 After an analysis of the case law of the ECtHR on Article 4, 7th Additional Protocol, the Supreme Court came to the conclusion that the ruling in Zolotukhin indeed made prior case law on the idem element obsolete.20 However, according to the Court, that did not imply that the case law of the ECtHR, allowing for different bodies to impose multiple sanctions for the ‘same offence’, had changed.21 In essence, the Supreme Court held that the bis element could allow for successive proceedings. The Court thus went on to analyse the case law of the ECtHR in that respect,

16

RÅ 2009 ref 94. Notably, Nils-Inge Rosenquist v Sweden (App no 60619/00), Decision 14 September 2004 (on admissibility). It was in this decision that the ECtHR explicitly found proceedings concerning Swedish tax surcharges to be ‘criminal’ in the sense of Article 4, 7th Additional Protocol to the ECHR. 18 Ruotsalainen v Finland (App no 13079/03), Judgment 16 June 2009. 19 NJA 2010 s 168 I och II. Notably, none of the cases concerned VAT which could have triggered the question of application of Union law. 20 ibid para 18. 21 ibid para 19. 17

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focusing on cases involving revocation of a driving license following a conviction for traffic offences in criminal proceedings.22 In conclusion, the Court found that although the case law of the ECtHR with respect to the bis element was neither comprehensive nor conclusive, it clearly allowed for linking one ‘offence’ or act to several sanctions even if those sanctions were imposed by different authorities. However, such a practice would only be permissible according to the Supreme Court, if the sanctions were foreseeable and a sufficiently close connection existed between them, in substance and in time, thus echoing the ECtHR in Nilsson.23 The Supreme Court then held that although rulings from the ECtHR could imply an application of national law that would go against statements in travaux préparatoires or case law from national courts, this would primarily be the case where the ECHR should be applied in individual cases.24 General questions of whether Swedish legislation is in conformity with the ECHR should be left to the legislator.25 If a Swedish court should set aside the order or system envisaged by the legislator due to a contemplated conflict with obligations deriving from the ECHR, that court must, according to the Supreme Court, satisfy itself of ‘clear support’ for such an interpretation in the ECHR or the case law of the ECtHR.26 Satisfied with 22 Ibid paras 20–24. The decision on admissibility in Nilsson v Sweden (App no 73661/01), Decision 13 December 2005 stood in center of the Court’s analysis. 23 Although this is not the place to delve into intricacies of Swedish procedural law, it should nonetheless be noted that a final decision to revoke a driving license, which is made by Transportstyrelsen (the Swedish Transport Agency), must rely on a final conviction for traffic offence, cf Körkortslagen (Law on Driving licences) (1998: 488) chapter 5, § 3 and chapter 7, § 2(7). Hence, the second sanction being the revocation of the driving license does not follow from an independent assessment of criminal liability. The conviction in prior criminal proceedings thus has binding force (positive Bindungswirkung) for the decision on the revocation of the driving license. This is not the case for successive proceeding for tax surcharges and tax offences, as the assessments in those cases are performed independently by administrative and general courts respectively. It is regrettable that the case law of the ECtHR lacks the necessary distinctions made available from terminology developed within procedural law, as this would facilitate clarity and coherence. Incidentally and in wake of the ruling by the Supreme Court in NJA 2013 s 502 (see n 39 infra), a temporary revocation of a driving licence has been held to make indictments inadmissible due to lis pendens in two cases before Helsingborgs tingsrätt (District Court of Helsingborg); cf decisions in cases B 5908-13 and B 5964-13 (both overturned by Hovrätten över Skåne och Blekinge (the Appeals Court for Skåne and Blekinge), in decisions in cases Ö 3367-13 and Ö 3368-13). To the present author, this creative use of the ne bis in idem principle and its corollary lis pendens with respect to temporary revocations of driving licences misses the essential point that any interim measure can imply an assessment of criminal liability to some degree (cf detention on remand). That cannot however have the effect of barring a final assessment of criminal liability, cf mutatis mutandis with respect to the question of impartiality when the same court has been deciding on detention on remand and criminal liability in the main proceedings, Hauschildt v Denmark (App no 10486/83) Judgment 24 May 1989. 24 NJA 2010 s 168 I och II (n 19), para 32. 25 ibid. 26 ibid. The Supreme Court made references to NJA 2004 s 840 (n 12) and NJA 2000 s 622 (n 12) where the Court developed the notion of ‘clear support’. That notion can essentially be viewed as an interpretation of both the standing of the ECHR in Swedish law (the ECHR

146 Magnus Gulliksson the conclusion that the case law of the ECtHR allows for the imposition of multiple sanctions for the same act (or ‘offence’) decided by different authorities at different occasions, the majority of the Supreme Court concluded that there was no ‘clear support’ to set aside the practice in Sweden with successive proceedings on tax surcharges and tax offences.27 In general, lower courts conformed to the decision by the Supreme Court, but some did not.28 The lack of unanimity among the lower courts with respect to the value of the decision as a precedent even caused the term ‘Supreme Court rebellion’ to be coined in public discourse.29 The observation that the ne bis in idem principle could have a Union law connection was not made in Swedish courts until September 2010, when a Judge of Appeal in a dissenting opinion held that the application of Union law could trigger the ne bis in idem principle laid down in Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’),30 thus barring criminal proceedings after the final imposition of a tax surcharge.31 In December 2010, Haparanda tingsrätt (District Court of Haparanda) made a referral to the CJEU for a preliminary ruling in what would become the Åkerberg Fransson case. In June 2011, while the Åkerberg Fransson case was still pending, the Supreme Court faced a request for leave to appeal on the issue of whether Article 50 of the Charter applied to a situation where a tax surcharge had been imposed for inter alia false declaration of VAT, therefore barring criminal proceedings.32 With a 3–2 vote, the Supreme

is formally implemented as ordinary law), and how any conflict between the latter and other norms of national law should be resolved, as the law stood at that time. To some degree, the notion of ‘clear support’ follows from the fact that Sweden is a dualist state. Although implemented in national law, the ECHR as such cannot have direct effect. There is thus an ‘internal’ element to any conflict with the ECHR or the case law of the ECtHR and national norms. Incidentally, the first question in Åkerberg Fransson (n 4) from Haparanda tingsrätt (District Court of Haparanda) concerned the notion of ‘clear support’. It is quite obvious that this notion can never be invoked in cases involving Union law. Since this must have been obvious also for the referring Court, the first question seems almost rhetorical in nature, targeting the domestic audience. The reply from the Advocate General (AG) and the CJEU in Åkerberg Fransson must be viewed in this light. 27 NJA 2010 s 168 I och II (n 19). The decision was a 3–2 vote, but counting all dissenting opinions and additional opinions of those of the majority, there were as many versions of the decisions as the number of Justices. 28 Notably, Hovrätten för Västra Sverige (Appeals Court for Western Sweden) in case B 2432-09. 29 See eg F Stenhammar, ‘Internationell anarki i svenska domstolar? Ett folkrättsligt perspektiv på “HD-upproret” om skattetilläggen’ (2011–12) 3 Juridisk Tidskrift 477–502. 30 Charter of Fundamental Rights of the European Union, [2007] OJ C-303/1 (2007 version). 31 Dissenting opinion by Judge of Appeal Hans Sundberg, Case B 801-09, Hovrätten för Övre Norrland (Appeals Court for Övre Norrland). 32 NJA 2011 s 444. See U Bernitz, ‘Preliminary References and Swedish Courts: What Explains the Continuing Restrictive Attitude?’ in P Cardonnel, A Rosas and N Wahls (eds), Constitutionalism in the EU Judicial System. Essays in Honour of Pernilla Lindh (Oxford, Hart Publishing, 2012) 177–87, 180 f.

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Court found that the obligation for it as a court of last instance to refer a question of Union law to the CJEU hinged upon whether there was an obligation to apply Article 50 of the Charter.33 Furthermore, as the Court found that the rules on tax surcharges and tax offences ‘did not comprise Union law’, the Charter did not apply according to the Supreme Court, and thus there was no obligation to make a referral to the CJEU for a preliminary ruling on the interpretation of Article 50 of the Charter.34 In hindsight, it is of course easy to be perplexed by the seemingly stubborn resistance of the Supreme Court even to let the Swedish practice of successive proceedings for the same act of tax evasion be challenged by referring a question on the interpretation of Union law, particularly since a referral had already been made by a district court in the far north of Sweden. In fact, it is difficult to escape the impression that the highest courts showed their sincere loyalty to the Swedish legislator, buying the latter valuable time for adapting the system to conform to Union law and ECHR standards. To this day, the legislator has not shown any urgency despite the outcome in Åkerberg Fransson.35 The fallout from that ruling has instead, perhaps fairly, landed squarely on the Swedish courts. The ruling in Åkerberg Fransson has of course wider implications than just for the application of the ne bis in idem principle. While the rulings by the CJEU in the Åkerberg Fransson and Melloni cases36 certainly will not mark the endpoint to the discussion on the scope of the protection of fundamental rights within Union law, they provided valuable guidance with respect to the relationship between the Charter and general principles of Union law. The ruling in Åkerberg Fransson establishes a continuation between these two sources of fundamental 33

NJA 2011 s 444 (n 32) para 11. The line of reasoning employed by the majority of the Supreme Court is quite remarkable in light of the acte clair doctrine. Not only did it ignore the obvious question whether Article 51 of the Charter was in need of interpretation, but it did so despite the fact that there was a dissenting opinion highlighting the issue (dissenting opinion by Justices Calissendorff and Herre). 35 A Swedish Government Official Report (SOU 2013:62) was delivered in August 2013 on issues of legal certainty in the tax procedure, including the question how administrative and criminal sanctions for tax evasions could co-exist. At the time of writing, there is no proposal for new legislation. 36 Case C-399/11 Stefano Melloni v Ministerio Fiscal EU:C:2013:107. For commentaries, see eg B van Bockel and P Wattel, ‘New Wine into Old Wineskins: The Scope of the Charter of Fundamental Rights of the EU after Akerberg Franssson’ (2013) 38(6) European Law Review 866–83; E Hancox, ‘The meaning of “implementing” EU law under Article 51(1) of the Charter: Åkerberg Fransson’ (2013) 50 Common Market Law Review 1411–32; J Vervaele, ‘The Application of the EU Charter of Fundamental Rights (CFR) and its Ne bis in idem Principle in the Members States of the EU’ (2013) 6(1) Review of European Administrative Law 113–34; F Fontanelli, ‘Hic Sunt Nationes: The Elusive Limits of the EU Charter and the German Constitutional Watchdog’ (2013) 9 European Constitutional Law Review 315–34; M Szwarc, ‘Application of the Charter of Fundamental Rights in the Context of Sanctions Imposed by Member States for Infringements of EU Law: Comment on the Fransson Case’ (2014) 20(2) European Public Law 229–46; C Brokelind, ‘Case note on Åkerberg Fransson’ Highlights & Insights on European Taxation, 2013 (April), 5–17. 34

148 Magnus Gulliksson rights in the sense that the requisite necessary for the application of the rights laid down in the Charter should be considered to coincide with situations which fall within the scope of application of Union law. In other words, what counts as ‘implementing Union law’ according to Article 51 of the Charter should be viewed in light of the case law developed to guide the assessment of whether a particular situation falls within the scope of application of Union law, thus triggering the application of general principles of Union law.37 Whereas a fairly large part of the judgment pertains to the question under what conditions the Charter applies, little is said about the ne bis in idem principle laid down in Article 50 of the Charter. Two aspects of the application of the principle are however addressed by the Court, but almost in passing. Firstly, the rights protection provided by the legal order of the Member States are set both in relation to the rights protection provided by the Charter and the requirement that sanctions are effective, proportionate and dissuasive pursuant to Article 4(3) TEU. The reasoning is not articulated with respect to the ne bis in idem principle in particular, but held in general terms. Secondly, the Court addresses the bis-element by formulating the criteria for a procedure to be of criminal nature, as otherwise there would not be a second set of criminal proceedings.38 In light of the brevity and general nature of the Court’s discussion of the ne bis in idem principle, this chapter will focus on some of the questions left unanswered by the Court with respect to how the requirement of effective sanctions should be viewed vis-à-vis the ne bis in idem principle. While it may seem both pertinent and self-evident in general terms to balance fundamental rights protection against effectiveness of Union law, it is somewhat misguided with respect to the ne bis in idem principle. This is due to the fact that the principle not only contains a prohibition against double punishment, but also bars a second set of proceedings for the same acts. The ruling in Åkerberg Fransson was followed by a plenary decision by the Swedish Supreme Court in June 2013 where that Court overturned its previous position on the legality of allowing the imposition of tax surcharges and criminal charges for the same act of omitting or providing false information in tax returns. The decision by the Supreme Court concerned both VAT and direct tax, which explains why the Court decided the case on Article 4 of the 7th Additional Protocol to the ECHR rather than Article 50 of the Charter.39 The latter would indeed have been directly applicable to the part 37 Åkerberg Fransson (n 4) paras 16–31. That Article 51 of the Charter should not provide for a narrower scope than general principles of Union law is suggested in the explanations to the Charter, to which due regard should be made according to Article 6.3 TEU. However, this has not prevented the issue from being open for debate among commentators, see JA Gutiérrez-Fons and K Lenaerts, ‘The constitutional allocation of powers and general principles of EU law’ (2010) 47 Common Market Law Review 1629–69, 1658 ff. 38 Åkerberg Fransson (n 4) paras 34–35. 39 NJA 2013 s 502.

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of indictment which concerned evasion to properly declare VAT. However, the Supreme Court relied on the findings of the CJEU with respect to Article 50 and 51 of the Charter rather as a trigger to change its stance on the ne bis in idem principle in ECHR.40 In July 2013, the Supreme Court decided to allow reviews for re-opening in cases where both tax surcharges had been imposed and where criminal proceedings with respect to tax fraud had been brought for the same act, going back as long as to the ruling by the ECtHR in Zolotukhin.41

A UNIFORM PRINCIPLE OF NE BIS IN IDEM IN UNION LAW?

In order to show how the balancing act between rights protection and effective sanctions becomes problematic when applied to the ne bis in idem principle in accordance with the test laid down by the Court in Åkerberg Fransson and Melloni, it is appropriate first to briefly recall what the ne bis in idem principle purports to. One aspect of the ne bis in idem principle enshrined in Article 50 of the Charter could be derived from the effects of its application. In so far as one and the same criminal act should render a measured response, ie excluding excessive penalties, the ne bis in idem principle conveys respect for the principle of proportionality.42 This aspect of the ne bis in idem principle is known as the accounting or set-off principle (Anrechnungsprinzip).43 As this aspect of the ne bis in idem principle targets the penalties imposed, it should properly be considered to correspond to what is referred to as the prohibition against double punishment. How the set-off principle could be viewed in relation to the ne bis in idem principle, was addressed by AG Sharpston in Kraaijenbrink, where she pointed out that the set-off principle is only relevant when the ne bis in idem principle does not preclude a second prosecution.44 Only in such a case would there be a second set of proceedings where the set-off principle would seek to make the combination of penalties proportional, since there would be a prior penalty to set off against.

40

Cf at n 27 supra. NJA 2013 s 746; Sergey Zolotukhin v Russia (App no 14939/03) Judgment 10 February 2009. 42 To this end, see Case 14/68 Walt Wilhelm and others v Bundeskartellamt [1969] ECR 1 para 11; Case 137/85 Maizena Gesellschaft mbH and others v Bundesanstalt für landwirtschaftliche Marktordnung (BALM) [1987] ECR 4587 para 21; Opinion of AG Cruz Villalón in Åkerberg Fransson (n 4) EU:C:2012:340 paras 93 and 95. 43 B van Bockel, The Ne Bis In Idem Principle in EU Law (Alphen aan den Rijn, Kluwer Law International BV, 2010) 32 f. 44 Opinion of AG Sharpston in Case C-367/05 Criminal proceedings against Norma Kraaijenbrink [2007] ECR I-6619, para 61. 41

150 Magnus Gulliksson A potentially more far-reaching aspect of the ne bis in idem principle is its effect of precluding a second set of criminal proceedings (Erledigungsprinzip).45 In this sense, the ne bis in idem principle maximizes the impact of the proportionality principle as it bars a second prosecution for the same act, and thus the question of whether or to what degree a second penalty should be imposed does not arise at all. While the effect of the ne bis in idem principle being applicable as the Erledigungsprinzip is effectively a prevention of a ‘double punishment’, its application has more of a binary character than the typical balancing of interests associated with any proportionality assessment. Either the second set of proceedings is allowed or it is not, there are no in-betweens. This observation is crucial in understanding why the application of the ne bis in idem principle as the Erledigungsprinzip cannot easily be reconciled with the requirement of effective sanctions, as the ruling in Åkerberg Fransson seems to suggest. We will return to this issue below, but safe to say, putting too much emphasis on the set-off principle, ie on the outcome in terms of penalties when applying the ne bis in idem principle, risks the relegation of the prohibition against double proceedings to the periphery. In this context, it should be recalled that the very wording of Article 50 of the Charter shows that the Erledigungsprinzip is to be upheld: A second set of proceedings is barred with respect to the same offence regardless of the outcome in the first set of proceedings.46 It would be a premature conclusion to presume that the ne bis in idem principle should be given a uniform interpretation throughout Union law. The principle is enshrined in different instruments of Union law and also has the status as a general principle of Union law.47 That there are differences as to the scope ratione materiae is perhaps not surprising, given that the instruments aim to give effect with respect to diverse areas of substantive law. The specific interest which provisions in those areas of substantive law seek to protect may vary, ensuing in a protection provided by the ne bis in idem principle which may differ. But the significance of these differences should not be overemphasized. After all, although some rules codifying the ne bis in idem principle target specific situations, such as cross-border crimes or surrendering of suspects, whereas others are more general, the same question of ‘idem’ and ‘bis’ must be asked. That is to say, the

45

See van Bockel [2010] (n 43) 33. Cf ‘No one shall be liable to be tried or punished again in criminal proceedings […] [stress added]’. 47 Beside Article 50 of the Charter, eg Article 54 CISA, Article 3(2) of Council Framework Decision 2002/584/JHA 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (FDEAW) OJ L 190/1; Article 6 of Council Regulation 2988/95 18 December 1995 on the protection of the European Communities financial interests OJ L 312/1. Indirectly, Article 4 of the 7th Additional Protocol to the ECHR also influences Union law through Article 52(3) of the Charter read in conjunction with Articles 6(1) and 6(3) TEU. 46

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questions regarding these elements of the principle are the same but the answers may diverge. For instance, as a general principle of Union law, the ne bis in idem principle has been developed to a significant extent within the area of competition law.48 The issue of ne bis in idem in anti-trust proceedings was addressed in Toshiba. For our purposes, the relevant question in that case was whether the Czech competition authority was precluded from taking action due to the initiation of proceedings by the Commission with respect to allegedly the same conduct of the same cartel (which operated in several Member States). In her Opinion, AG Kokott raised the question whether the principle of ne bis in idem as manifest in Article 50 of the Charter should influence the assessment of idem developed in the case law of the Court in competition cases.49 With respect to proceedings under competition law, application of the ne bis in idem principle had been subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected.50 As AG Kokott pointed out, it is only within the area of competition law that the third condition has been upheld.51 In her view, there were no objective reasons for treating the ne bis in idem principle differently in different areas of law, as that would risk the unity of the EU legal order. Furthermore, such lack of homogeneity would also be at odds with the principle enshrined in Article 4, 7th Additional Protocol to the ECHR, since the latter would provide a more extensive protection.52 The Court did not address the issues raised by the AG, and without further ado repeated the threefold condition of identity of facts, unity of offender and unity of legal interest protected.53 Having found that identity of facts was not at hand, the Court concluded that the ne bis in idem principle did not preclude the Czech competition authority from imposing penalties on the undertakings participating in the cartel.54 The circumstances of the case were somewhat exceptional. The conduct targeted by the national competition authority predated the Czech accession to the Union on 1 May 2004, but the proceedings were brought after that date and after the Commission had initiated proceedings. Furthermore, the fine imposed by the Czech competition authority post-dated the fine imposed by the Commission. Both decisions were made before the Charter became legally binding through the

48 Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P, C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij NV (LVM), [2002] ECR I-8375 para 59. 49 Opinion of AG Kokott in Case C-17/10 Toshiba Corporation and Others EU:C:2011:552 paras 101–24. 50 ibid para 114. 51 ibid para 116. 52 ibid paras 117–20 and 123. 53 Case C-17/10 Toshiba Corporation and Others v Úˇrad pro ochranu hospodáˇrské soutˇeže EU:C:2012:72 para 97. 54 ibid paras 98 and 103.

152 Magnus Gulliksson entry into force of the Lisbon Treaty, but the ruling by the Court was made after that date. This is not the place to delve further into the implications of all the particularities in Toshiba.55 However, the case does show that a little more than a year before Åkerberg Fransson, the Court was not willing to abandon the conditions of idem particular to the area of competition law, despite the issue of fragmentation raised by AG Kokott. In contrast, a fragmented approach to the ne bis in idem principle was indeed what AG Cruz Villalón subscribed to in his Opinion in Åkerberg Fransson. While the Court in its ruling was reluctant to elaborate on that principle, AG Cruz Villalón outlined his views at some length. These views therefore call for some comments. First, with regard to the relationship between Article 50 of the Charter and Article 4, 7th Additional Protocol, the AG set out to discuss the implication of the fact that not all Member States have ratified the protocol. According to the AG, this should be understood as a ‘considerable lack of agreement between the Member States of the European Union regarding the problems resulting from the imposition of both administrative and criminal penalties with respect of the same offence’.56 Although the Member States of the EU and the parties of the ECHR are the same entities as sovereign states, there might be a point in not confusing in what capacity those states have expressed a ‘considerable lack of agreement’. The ECHR is an international treaty between sovereign states, whereas the EU is a legal order with rules which can have direct effect but also set aside conflicting national provisions, with limited impact from any ‘intent’, ‘consent’ or passivity among the latter at the time of ratification of the treaties. It is therefore not evident why the lack of ratification of Additional Protocol 7 by the parties to the ECHR should be of immediate relevance to the question of what the scope of the ne bis in idem principle should be as manifest in the Charter. Furthermore, even if it may not be incorrect, it is certainly of little relevance to point out as the AG does that ‘the aspect of the ne bis in idem principle with which these proceedings are concerned is far from widespread and established in the States signatories to the ECHR’.57 Certainly, the ne bis in idem principle is recognized by all Member States, although the scope and precise meaning may differ. Such differences do not necessarily need to have implications for ne bis in idem as a general principle of Union law, let alone as codified in the Charter. As a Union principle, ne bis in idem can be given an autonomous interpretation which differs from those found in national legal orders. Furthermore, it can be attributed effects in particular situations within the scope of Union

55 Cf Bas van Bockel, ‘The ne bis in ídem principle in European Union legal order: between scope and substance’ (2012) 13 ERA Forum 325–347, 338 f. 56 Opinion of AG Cruz Villalón in Åkerberg Fransson (n 42) para 73. 57 ibid para 82.

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law, which Member States would not necessarily agree with.58 This would neither be the first nor the last occasion where such a tension occurred. The view of AG Cruz Villalón is however fully in accordance with his constitutional approach to the question whether the Charter applies. With such a view, the onus will be on finding ‘consent’ or ‘conferred powers’ by the sovereign states rather than taking a teleological approach in determining both the scope of Union law and the ne bis in idem principle. For his part, AG Cruz Villalón, while mindful of the case law of the ECtHR, opted for a ‘partially autonomous’ and independent interpretation of Article 50 of the Charter, which ought to be based exclusively on the wording and scope of said Article.59 This has however little support in the relevant treaty provision regulating the matter. According to Article 6(1) TEU, the interpretation of the Charter shall be made ‘with due regard to the explanations referred to in the Charter’. Article 52(3) of the Charter states that in cases where rights in the Charter correspond to rights in the ECHR, the former should have the same meaning and scope as the latter. The explanation to said Article states that the reference to the ECHR should be understood as covering both the Convention and additional protocols,60 and Article 50 is considered to be of the same meaning but have a wider scope than Article 4, 7th Additional Protocol.61 Likewise, according to the explanation to Article 50 of the Charter, [a]s regards the situations referred to by Article 4 of Protocol No 7, namely the application of the principle within the same Member State, the guaranteed right has the same meaning and the same scope as the corresponding right in the ECHR.62

In light of his doubts to an interpretation of Article 50 of the Charter in conformance with Article 4, 7th Additional Protocol of the ECHR, one would expect the ‘partly autonomous’ interpretation of Article 50 of the Charter suggested by AG Cruz Villalón to be decisively different. But neither did the AG consider the tax surcharges in question to be considered otherwise as criminal penalties,63 nor did he depart from the interpretation of idem developed by the CJEU both with respect to Article 54 CISA and Article 3(2) of FDEAW.64 The former is somewhat surprising, as it is precisely the use of the Engel criteria by the ECtHR to find administrative

58 Cf AG Kokott in her Opinion in Toshiba (n 49), who did not consider the lack of ratification of the Additional Protocol by all parties to the ECHR to be an obstacle for concluding that the ne bis in idem principle in Union law has a close proximity to the ECHR, para 119. See also AG Jääskinen in his Opinion in Case C-129/14 PPU Zoran Spasic EU:C:2014:739 para 63. 59 Opinion in Åkerberg Fransson (n 42), para 87. 60 Explanations Relating to the Charter of Fundamental Rights [2007] OJ C-303/17. 61 ibid. 62 ibid. 63 Opinion in Åkerberg Fransson (n 42) para 90. 64 ibid para 91.

154 Magnus Gulliksson proceedings in national law as essentially criminal in nature, which the AG supposedly seeks to avoid by making a distinction of the interpretation of Article 50 of the Charter vis-á-vis Article 4, 7th Additional Protocol. Without any firm or convincing support, what comprises the basis for the ‘partly autonomous’ interpretation suggested by the AG, is the principle of prohibition of arbitrariness and the principle of proportionality.65 The latter is recognized as the Anrechnungsprinzip, but seems to coincide with the prohibition of arbitrariness, which the AG derives from the notion of rule of law (Article 2 TEU).66 What is completely absent is a relevant discussion on the prohibition against double prosecutions (Erledigungsprinzip) and the consequences, should the tax surcharges be considered criminal in nature. Even if one were to accept AG Cruz Villalón’s view that only the wording of Article 50 of the Charter was relevant for its interpretation, that could not defend an abstention from considering the prohibition against successive prosecutions, since the latter follows from the very wording of said Article.67 As mentioned above, the Court in Åkerberg Fransson was quite brief on the issue of ne bis in idem,68 and did not venture into an explicit analysis of the relation between the Charter and the ECHR in this respect. No mention of Article 52(3) of the Charter was made by the Court. Save for the difference in geographic scope, it is therefore difficult to assess to what degree (if any) Article 50 of the Charter differs from Article 4 of the 7th Additional Protocol to the ECHR. On the one hand, the Court’s silence can be interpreted as an intentional omission, signalling a distance between it and the ECHR. The Court would then reserve the right to interpret Article 50 of the Charter autonomously, despite Article 6(1) TEU read in conjunction with Article 52(3) of the Charter and its explanations. On the other hand, the fact that the Court indirectly applies the Engel criteria through the reference to Bonda suggests that some level of harmonisation is intended.69 The difficulties in resorting to interpretations of any silence of the Court on a particular matter is obvious. Since there can be any number of (hidden) reasons for such a silence, an e contrario interpretation based on that silence runs the risk of becoming arbitrary with little explicit support. In contrast to the signs of a divergent approach to the ne bis in idem principle, consider the ruling in Mantello.70 The case concerns the interpretation

65

ibid paras 93 and 95. Cf ibid para 91. 67 Cf (n 46). 68 Essentially, the issue of what Article 50 of the Charter entails is treated in paras 32–37 of Åkerberg Fransson (n 4). 69 Engel and Others v Netherlands (App nos 5100/71; 5101/71; 5102/71; 5354/72; 5370/72) Judgment 8 June 1976; Case C-489/10 Criminal proceedings against Łukasz Marcin Bonda EU:C:2012:319 paras 36–44. 70 Case C-261/09 Gaetano Mantello [2010] ECR I-11477. 66

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of Article 3(2) FDEAW. The referring German Court (Oberlandesgericht Stuttgart) was faced with an EAW issued by an Italian Court (Tribunale di Catania) for Mr Mantello on the basis of two acts. The first act concerned his alleged participation in cocaine trafficking as a member of a criminal organization between January 2004 and November 2005.71 Furthermore, it was alleged, that Mr Mantello, during that same period and in the same places, acting alone or in concert with others, had unlawfully taken possession of, retained, transported, sold or disposed cocaine to third parties.72 The Italian authorities did not bring charges against Mr Mantello for the unlawful trafficking of cocaine as the investigation was ongoing, and it was only in September 2008 that a national arrest warrant was issued for those acts, later followed by the EAW on 7 November 2008. However, in September 2005 Mr Mantello was arrested at the Catania train station for possession of 155.46g of cocaine. On 30 November 2005, Mr Mantello was sentenced to a term of imprisonment for the unlawful possession of that cocaine. The referring Court asked the Italian authorities for clarification on the ruling from 2005, and to what extent it precluded the execution of the EAW. Not satisfied with the answer that the ruling in November 2005 did not preclude the EAW, the referring Court stayed the proceedings and referred two questions for a preliminary ruling. Firstly, the referring Court asked whether ‘the same acts’ (idem) in Article 3(2) FDEAW should be interpreted according to the law in the issuing state, the executing state or as an autonomous concept of Union law. Secondly, the referring Court asked essentially whether the acts covered by the EAW and the act which had been subject to criminal proceedings and a sentence in November 2005 were the ‘same acts’ in the sense of Article 3(2) FDEAW.73 With respect to the first question, the CJEU found the concept of ‘same acts’ to have equal meaning in both Article 54 CISA and Article 3(2) FDEAW as both provisions shared the same objective.74 The Court made no reference to Article 50 of the Charter, and the silence in this regard may give the impression that the interpretation of Article 54 CISA and Article 3(2) FDEAW should differ from that of Article 50 of the Charter.75 Precaution is however warranted when interpreting that silence. There is some support 71

ibid para 17. ibid para 18. 73 ibid para 30. It should be noted that the ruling by the Tribunale di Catania in November 2005 concerned unlawful possession of cocaine whereas the Oberlandesgericht Stuttgart in its second question to the CJEU referred to ‘importation of narcotic dugs’. This apparent lack of correspondence can be reconciled by noticing that the cocaine for the possession of which Mr Mantello was convicted, had been purchased in Esslingen, Germany prior to his arrest. 74 ibid para 40. 75 On the lack of reference to Article 50 of the Charter and free movement of persons, see S Peers, ‘The European Arrest Warrant: The Dilemmas of Mutual Recognition, Human Rights and EU Citizenship’ in A Rosas, E Levits and Y Bot (eds), The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-law—La 72

156 Magnus Gulliksson for the view that a consistency, at least with respect to the interpretation of the idem element, has started to emerge. Consider how the ECtHR reached a harmonized approach to idem in Zolotukhin. In that case, the Court took the view that a harmonization of the different approaches to interpreting idem in its case law was called for.76 Neither the fact that the protection provided by Article 4, 7th Additional Protocol applies to ‘criminal proceedings under the jurisdiction of the same State’ whereas the protection provided by Article 54 CISA targets cross-border situations, nor the fact that the ECHR provides a minimum level of protection seems to have impeded the ECtHR from finding a unified approach to idem, by referring inter alia to the case law of the CJEU on the interpretation of Article 54 CISA.77 Whereas Article 50 of the Charter should be interpreted in accordance with its corresponding rule in the ECHR,78 there is also a link to the interpretation of at least the idem element in Article 54 CISA through the ruling by the ECtHR in Zolotukhin. With respect to the second question, the ruling in Mantello contains a curious shift in how the CJEU understood or rephrased the question from the referring Court. Whereas the latter asked whether the Italian EAW concerned the same act (idem) as that which had been subject to a prior ruling in November 2005 by the Italian Court, the CJEU understood the question as rather concerning the concept of being ‘finally judged’ (bis).79 This transformation of the question occurs in connection with the CJEU’s reference to the Oberlandesgericht Stuttgart being inclined to consider the act subject to the prior ruling by the Italian Court in November 2005 and the acts in the EAW to be different.80 It is however quite clear that the referring Court sought guidance on whether this was a correct conclusion, particularly since the EAW not only included the act of participation in an organized crimes network, but also illegal possession of drugs during a time period which included the date during which Mr Mantello had in possession the amount of cocaine for which he was convicted.81 Furthermore, if the acts indeed were considered to be different, why would the referring Court, and by extension the CJEU, need to venture into a discussion on the proper understanding of the concept ‘finally judged’? That notion is relevant only when idem is at hand, ie where both the final ruling and the EAW concern ‘the same acts’. This seems all the more perplexing as the referring Court explicitly asked Cour de Justice et la Construction de l’Europe: Analyses et Perspectives de Soixante Ans de Jurisprudence (The Hague, Springer, 2013) 532 f. 76

Sergey Zolotukhin v Russia (n 13) § 78 et seq. ibid §§ 37–38 and 79 with reference to Van Esbroeck (n 8) and Kraaijenbrink (n 8). 78 See at n 61 above. 79 Mantello (n 70) paras 42–43. 80 ibid para 42. 81 ibid; cf J Ouwerkerk,’ annotation on Case C-261/09 Criminal proceedings against Gaetano Mantello’ (2011) 48 Common Market Law Review 1687–702, 1697. 77

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for guidance on the idem element and even more so in light of the reply given by the Italian Court to the referring German Court on the issue of finality of the ruling from November 2005.82 In that reply, the Italian Court held that according to Italian law, the accused had been finally judged with respect to the unlawful possession of cocaine, but that the EAW was based on different acts.83 Although the issue of finality is settled by that reply, one can still wonder whether the reply given by the Tribunale di Catania was in fact coloured by an assessment of idem based on Italian law, which would be irrelevant with respect to the application of Article 3(2) FDEAW.84 In any case, it would be safe to say in light of Mantello, that Article 3(2) FDEAW should be interpreted in the same way as Article 54 CISA, when it comes to both the idem and bis elements.85 In summary, although there are some signs of attempts to achieve a unified ne bis in idem principle, particularly where the principle of mutual recognition plays a role,86 cases such as Toshiba suggest that complete harmonization of the ne bis in idem principle within Union law cannot be expected any time soon. While Åkerberg Fransson provided necessary guidance with respect to the scope of application of the Charter, its muted approach to the ne bis in idem principle and to the relation between the Charter and the ECHR leaves many questions unanswered. With the Charter and thus Article 50 being legally binding within the scope of application of every area of Union law, it would seem pertinent to provide harmonized criteria for the ne bis in idem principle referred to in different instruments of Union law. However, even if such a harmonization of the approaches to decide idem and bis was achieved, other constraints to the application of the ne bis in idem can cause its protection to depend on the applicable instrument in which the principle is laid down, effectively causing the protection to differ.

EFFECTIVE, PROPORTIONATE AND DISSUASIVE SANCTIONS

Regardless of whether one considers the set-off principle or the Erledigungsprinzip both aspects of the ne bis in idem principle, aim at limiting the use of sanctions. This is accomplished either directly or indirectly, the latter by prohibiting a second set of proceedings. Whenever applied, the ne bis in idem principle will therefore hamper effectiveness, in the sense

82 83 84 85 86

Mantello (n 70), para 49. ibid para 49. Cf ibid, para 14; Ouwerkerk (n 81) 1696 ff. Mantello (n 70) paras 38, 40 and 45. Ouwerkerk (n 81) 1687 f.

158 Magnus Gulliksson of effective compliance or enforcement of substantive Union law.87 There is thus a conflict between the protection of a fundamental right (ne bis in idem) and the effective enforcement of Union law. More precisely, how does this conflict manifest itself and what are the challenges in resolving it? From the principle of loyalty or sincere cooperation laid down in Article 4(3) TEU, it follows that Member States shall take any appropriate measure, general or particular, to ensure fulfilment of Treaty obligations. Where Union law does not provide for any penalty for infringement or refers to national laws, Member States have discretion, albeit within some constraints, in the choice of sanctions and penalties for the enforcement of substantive Union law. The limits to that discretion were articulated by the CJEU for the first time in the Greek Maize case.88 The Court held that infringements of Union law should be penalized under conditions, both procedural and substantive, which are analogous to those applicable to national law of a similar nature (principle of equivalence) and in any event make the penalty effective, proportionate and dissuasive.89 The Greek Maize criteria have since been confirmed in subsequent cases and can also be found in the treaties and secondary legislation.90 However, as Dougan points out, although repeated in case law, very little can be found that elaborates the criteria laid down in Greek Maize.91 Whereas the Rewe/ Comet jurisprudence can provide some guidance, one should be careful not to stretch any comparison too far.92 Both Rewe/Comet and Greek Maize

87 The notion of effectiveness in Union law is ambiguous. Granted that there are some overlaps, this account will make a distinction between effectiveness as ‘effective compliance’ or ‘effective enforcement’ on the one hand, and effective judicial protection on the other. Particularly in cases involving procedural autonomy, the distinction can sometimes be difficult to make. See P Nebbia, ‘The Double Life of Effectiveness’ in C Barnard (ed), (2007–2008) 10 The Cambridge Yearbook of European Legal Studies 287–302, 291 f and 299 f. See also passim infra. 88 Case 68/88 Commission v Greece (Greek Maize) [1989] ECR 2965. 89 ibid para 24. 90 Eg Case C-326/88 Anklagemyndigheden v Hansen & Soen I/S [1990] ECR I-2911 para 17; Case C-36/94 Siesse—Soluções Integrais em Sistemas Software e Aplicações Ldª v Director da Alfândega de Alcântara [1995] ECR I-3573 para 20; Case C-180/95 Nils Draehmpaehl v Urania Immobilienservice OHG [1997] ECR I-2195 para 29 (principle of equivalence); Case C-186/98 Criminal proceedings against Maria Amélia Nunes and Evangelina de Matos [1999] ECR I-4883 paras 9–10; Case C-167/01 Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire Art Ltd [2003] ECR I-10155 para 62; Article 15 of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L-180/22; Article 17 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L-303/16; Article 325 TFEU. 91 M Dougan, ‘From the Velvet Glove to the Iron Fist: Criminal Sanctions for the Enforcement of Union Law’ in M Cremona (ed), Compliance and the Enforcement of EU law (Oxford, Oxford University Press, 2012) 80. 92 On Rewe/Comet (Case 33/76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer fur das Saarland [1976] ECR 1989 and Case 45/76 Comet BV v

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can properly be viewed as outflows from the principle of loyal cooperation, now found in Article 4(3) TEU. However, while Greek Maize aims to promote effectiveness of Union law through the use of effective sanctions against individuals, Rewe/Comet can operate either against or to the benefit of individuals. In the latter case, there is a potential overlap with the principle of effective judicial protection (now codified in Article 47 of the Charter).93 The principle of effectiveness in Union law can thus work at different levels and even come into conflict with itself. That is, where substantive rules of Union law demand effective enforcement from national procedural law, general principles of Union law including fundamental rights (including those codified in the Charter) can require an ‘effective restrictiveness’ from the very same national procedural order. Greek Maize and Rewe/Comet can thus be found not only to stand in conflict with fundamental rights in general, but in particular and more curiously with the ‘other’ version of effectiveness, namely the principle of effective judicial protection. As a result of the decentralized enforcement of Union law, those conflicts may take place at the Member State level, ie in national courts involving the application of national procedural laws. However, in such cases the true conflict of interests need not be construed as one between Member State and Union law, but should properly be understood as occurring within Union law. In Åkerberg Fransson, the Greek Maize criteria are invoked as a limit to the ne bis in idem principle, but only indirectly. The Court takes the opportunity to address a more general issue, namely to what extent national standards of protection of fundamental rights could be applied when those standards provide a higher level of protection than the Charter.94 That is no coincidence. On the same day as the ruling in Åkerberg Fransson was delivered, the Court also ruled in Melloni. That case inter alia concerned the protection provided by the Spanish Constitution for persons convicted in absentia in another Member State and subject to a request for surrender in the form of an EAW from that Member State. Spanish law made surrender conditional upon a guarantee from the issuing state that the conviction would be open for review. Such a condition would however be contrary to Article 4a(1) FDEAW. In answering the second question from the referring Court, Article 4a(1) Produktschap voor Siergewassen [1976] ECR 2043) as part of a ‘core narrative’ on national remedies, see M Dougan, ‘The Vicissitudes of Life at the Coalface: remedies and Procedures for Enforcing Union Law’ in P Craig and G de Búrca (eds), The Evolution of EU law, 2nd edn (Oxford, Oxford University Press, 2011). 93 S Prechal and R Widdershoven, ‘Redefining the Relationship between “Reweeffectiveness” and Effective Judicial Protection’ (2011) 4(2) Review of European Administrative Law 31–50 46. 94 Åkerberg Fransson (n 4) paras 29 and 36.

160 Magnus Gulliksson FDEAW was found to be compatible with Articles 47 and 48(2) of the Charter.95 The referring Court asked in its third question whether Article 53 of the Charter should be interpreted as allowing for a condition such as that in the Spanish Constitution, the latter essentially providing for a higher standard of protection than the Charter. What triggered the question, was the reference at the very end of Article 53, which could be interpreted as allowing the protection provided by the constitutions of the Member States to go further than the Charter. The Court answered the question in the negative, pointing out that such an interpretation of Article 53 of the Charter would be tantamount to restricting the primacy of Union law, as it would allow Member States to disapply provisions of Union law which were compatible with the Charter.96 The Court then laid out the space in which the discretion of Member States may operate in choosing implementing measures.97 In particular, national standards of protection of fundamental rights must not fall below the threshold set by the Charter, but must not go beyond the ceiling set by the primacy, unity and effectiveness of EU law. In Åkerberg Fransson, the Court reiterated the general approach to national standards of protection of fundamental rights employed in Melloni.98 Up until this point, the ruling in Åkerberg Fransson seemed quite straightforward. What amounts to be a challenge for interpretation is paragraph 36 (reference to case law omitted):99 It is for the referring court to determine, in the light of those criteria, whether the combining of tax penalties and criminal penalties that is provided for by national law should be examined in relation to the national standards as referred to in paragraph 29 of the present judgment, which could lead it, as the case may be, to regard their combination as contrary to those standards, as long as the remaining penalties are effective, proportionate and dissuasive.

While seemingly balanced, taken at face value and considered in the abstract, the suggested approach by the Court is open for several interpretations. The first difficulty arises from the fact that the statement can be read as an obiter dictum. Unlike in Melloni, comparison against national protective standards was not at issue in Åkerberg Fransson, as the Swedish rules in question did not prevent successive proceedings and therefore also the imposition of a combination of sanctions. On that reading which could be 95

Melloni (n 36) paras 47–54. ibid para 58. 97 ibid para 60. 98 The reference to para 60 in Melloni is found in para 29 and indirectly also in para 36 of the ruling in Åkerberg Fransson (n 4). 99 By decision of the Court on 7 of May 2013, the Swedish language version of para 36 was corrected. Notably, the Swedish language version is still phrased slightly differently compared with the English, French and German versions of para 36, as it ends the first sentence after the reference to para 29 with punctuation. 96

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called the ‘straight-forward approach’, paragraph 36 of the ruling does not address situations where the national standards of protection of fundamental rights fail to reach the level of protection set by the Charter. For such situations, including the one faced by the referring Court, proper application of the ne bis in idem principle in Article 50 of the Charter follows from paragraph 34 in Åkerberg Fransson. The referring Court would then only need to assess whether the tax surcharges should be deemed criminal in nature. If so, and had the tax surcharges been imposed by a final decision or ruling, criminal proceedings would be precluded. Consequently, the test of ‘the remaining penalties’ against eg effectiveness envisaged in paragraph 36 would simply not be triggered: there would be no national protective standards providing a higher level of protection than the Charter to compare with. Thus, the applicability of the ne bis in idem principle in Article 50 of the Charter would not depend on the effectiveness of penalties at issue in the first set of proceedings. This conclusion also sits well with Article 4, 7th Additional Protocol to the ECHR. Neither in that Article itself nor in its associated case law is there any support for a limitation based on the effectiveness (according to whatever measure) of the penalties resulting from the first set of proceedings. The contentious character of paragraph 36 of Åkerberg Fransson was illustrated in the case before the Swedish Supreme Court involving similar issues as those raised by the referring Court in Åkerberg Franssson.100 In his submission to the Supreme Court, the Prosecutor-General (Riksåklagaren) made the claim that paragraph 36 of Åkerberg Fransson should be viewed as placing an obligation on the National Court to review the remaining penalties (the tax surcharges in the pending case) against the Greek Maize conditions.101 According to the Prosecutor-General, only if those conditions were met for the remaining sanctions (ie the tax surcharges) should Article 50 of the Charter apply so as to preclude a second prosecution. Furthermore, the Prosecutor-General submitted that ‘a practical approach should be used’ where, in assessing the final, remaining penalties, a balance should be struck between the interest of maintaining the protection provided by the Charter and the interest of upholding the primacy, unity and effectiveness of Union law. There are several problems with the view held by the Prosecutor-General, but suffice to say and as he himself observes, it seems peculiar that the application of the Charter in a particular case would depend on considerations relating to effectiveness.102 In its plenary decision on the 11 June 2013, the Supreme Court found that the interpretation by the Prosecutor-General 100 NJA 2013 s 502. See at n 39 supra. It should be noted that this case was not the same one as that pending before the referring Court (Haparanda tingsrätt) in Åkerberg Fransson. 101 Riksåklagaren, Svarsskrivelse Dnr ÅM 2013/1692, mål B 4946-12, 15. 102 ibid.

162 Magnus Gulliksson with respect to paragraph 36 of Åkerberg Fransson could not be accepted.103 The Court held that in instances where national standards of protection (for fundamental rights) supersede the Charter, application must not compromise the effectiveness of Union law.104 Furthermore, the Court held that the Charter could not ‘be applied wider’ than what follows from its proper meaning as interpreted by the CJEU, without consideration to the effectiveness of Union law. Having found the tax surcharges to be criminal in nature, and as the national standards of protection (ie national ne bis in idem in this case) did not even meet the threshold set by Article 50 of the Charter, there was no need to test against Greek Maize according to paragraph 36 of Åkerberg Fransson. Even if not held explicitly, the underlying rationale can be understood as follows: if the ne bis in idem principle is breached by a system of subsequent proceedings, the national implementation of sanctions is too effective and there is thus no need to examine effectiveness. In the end, the Supreme Court relied on Article 4, 7th Additional Protocol to the ECHR and concluded that a final decision or ruling on tax surcharges precluded subsequent criminal proceedings. The ruling of the lower court was thus quashed and the case dismissed in that part.105 Hence, it would seem as if the Supreme Court applied the ‘straightforward approach’ described above. That approach is however based on an interpretation of paragraphs 29 and 36 in Åkerberg Fransson, which has some issues. The wording of both paragraphs gives the impression of describing the space where national standards of protection of fundamental rights are allowed to operate: they must not fall below the threshold set by the Charter, but not be so far-reaching that they impede the primacy, unity and effectiveness of Union law. With respect to the discretion afforded to Member States in choosing sanctions, the limit or ‘ceiling’ is provided by the obligation to fulfil the Greek Maize criteria. As mentioned above, with the ‘straight-forward approach’, the discretionary space and thus its limit would only be relevant if a national court would seek to apply national protective standards that went further than the Charter. If those national standards fell below the threshold set by the Charter, then the latter would apply. At least with respect to ne bis in idem, this interpretation is dubious. Suppose that for certain unlawful acts, a Member State provides for both 103

NJA 2013 s 502 (n 39), paras 44–47. ibid para 47. 105 In theory, the Supreme Court could have chosen to apply Article 50 of the Charter to the parts of the criminal conviction that covered evasion to declare VAT, thus quashing the lower court’s ruling and dismiss the case only in those parts. That would have enabled the Court to maintain its view on the ECHR as it held in the case NJA 2010 s 168 I och II. As mentioned at n 40 supra, the Supreme Court did however chose to change its stance on Article 4, 7th Additional Protocol instead and apply it both to the parts involving VAT and direct tax. 104

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administrative sanctions and the possibility to subsequently instigate criminal proceedings. Thus, there is no national ne bis in idem rule which could preclude the criminal proceedings, even if the decision to impose administrative sanctions had become final. This scenario is much like the situation in Åkerberg Fransson. If the administrative sanctions are found to be criminal in nature, the ‘straight-forward approach’ would suggest that criminal proceedings are barred. Consider now what would happen if the Member State decided to adopt a new national rule on ne bis in idem which barely satisfied Article 50 of the Charter, in accordance with paragraph 34 in Åkerberg Fransson. Pursuant to paragraph 29 and 36 in Åkerberg Fransson, the national court would then be at liberty to apply that national protective standard, thus barring criminal proceedings, as long as the remaining sanctions were deemed to satisfy the Greek Maize criteria. The question now arises: why would an assessment of the remaining sanctions against effectiveness be necessary when a Member State court would consider applying a national ne bis in idem rule totally aligned with its Charter equivalent, if application of the latter does not entail such an assessment?

EFFECTIVE SANCTIONS—A VIEW IN ONE DIMENSION?

Perhaps appearing as somewhat technical, the example at the end of the preceding section has the benefit of uncovering the ambiguity hidden in the seemingly balanced and clear-cut discretion afforded to Member States in choosing sanctions, as laid down by the Court in Åkerberg Fransson and Melloni.106 On the one hand, using the ‘straight-forward approach’, there is no obligation to assess the ‘remaining sanctions’ when Article 50 of the Charter is invoked. On the other hand, such an obligation exists when relying on a national rule on ne bis in idem, the latter being completely or barely aligned with its Charter equivalent. Again, and for clarity, the question is to what extent it is possible to reconcile these views. There are several ways to address the conundrum. One obvious approach would be to use a presumption. By testing the administrative sanctions against the Engel/Bonda criteria, the outcome could serve as an indication of whether the penalties are sufficiently effective, proportional and dissuasive.107 Any sanctions which are criminal in

106

Paras 29 and 36 Åkerberg Fransson (n 4) and para 60 Melloni (n 36). The proportionality criterion in Greek Maize (n 88) should not necessarily be viewed as a limitation against effectiveness. Rather, it could be considered as a demand that the sanction be ‘tough enough’. On this point, see K Nuotio, ‘Harmonization of Criminal Sanctions in the European Union—Criminal Law Science Fiction’ in EJ Husabø and A Strandbakken (eds), Harmonization of Criminal Law in Europe (Antwerpen, Intersentia, 2005) 82. That view does however seem to be at odds with case law, see eg Case C-262/99 Paraskevas Louloudakis v Elliniko Dimosio [2001] ECR I-5547. In para 67 the Court explicitly mentions the restraint 107

164 Magnus Gulliksson nature according to the Engel/Bonda test would then also be presumed to fulfil the Greek Maize criteria and therefore be sufficiently effective. Accordingly, should such sanctions be finally imposed, they would bar subsequent criminal proceedings, regardless of whether the national court invoked Article 50 of the Charter or a national rule of ne bis in idem. There is some merit to such an approach. Particularly if the Engel/Bonda criteria are fulfilled due to the nature and degree of severity of the penalty, one could expect some level of effectiveness and dissuasiveness of the penalties. Despite offering a simple solution to the dilemma, this line of argument is not convincing. Firstly, the Engel/Bonda criteria are not intended to assess effectiveness or proportionality per se, let alone in relation to substantive Union law at large. In relation to the ne bis in idem principle, the Engel/Bonda criteria are merely used to examine whether two sets of proceedings are equal in character (that of being criminal proceedings) in order to determine whether the bis element is fulfilled.108 Secondly, the test of the remaining penalties against Greek Maize outlined in paragraph 36 in Åkerberg Fransson already presupposes that those sanctions have met the Engel/Bonda criteria.109 Therefore, the criminal nature of the administrative penalties as such does not suffice to render the effectiveness condition in Greek Maize fulfilled. Another way to address the conundrum brought forward above is to simply adopt the view held by the Prosecutor-General in the case NJA 2013 s 502.110 According to this ‘effectiveness approach’, whether a national court considers applying a national rule on ne bis in idem111 or Article 50 of the Charter would be indifferent to the obligation of assessing the ‘remaining penalties’ pursuant to paragraph 36 in Åkerberg Fransson: should the applicable penalties in the first set of proceedings be criminal in nature but not fulfill the Greek Maize criteria, a second set of

that must be observed when Member States exercise their discretion in implementing appropriate sanctions, following from the principle of proportionality. As a general principle of Union law, it is invoked to limit effectiveness and it would therefore seem somewhat contradictory given the context if the criterion of proportionality in Greek Maize would pertain to something altogether different. 108 Notably, the two sets of proceedings are not assessed as such, but rather the offences and related penalties involved in those proceedings. The Engel/Bonda criteria should properly be understood as an indirect assessment. If the offences or penalties are considered criminal in nature, the implication is that the proceedings are also criminal in nature. Indeed, this was the approach taken by the ECtHR when establishing that Swedish tax surcharges were criminal in nature (see n 17 supra). 109 Cf para 35 with para 36 in Åkerberg Fransson (n 4). The latter paragraph affords the discretion to the national (referring) Court on the basis that it makes its decision ‘in light of those criteria’, ie Engel/Bonda in para 35. It is only then that para 36 becomes relevant, cf also para 34 in fine. 110 Cf at n 100 supra. 111 Including Article 4, 7th Additional Protocol to the ECHR as implemented in national legislation.

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proceedings would be admissible in order to meet the requirement of adequate (effective) sanctions. This reading of paragraph 36 has support from some commentators.112 The rationale behind this approach is not to unilaterally favour effectiveness over fundamental rights protection in general. However, it does suggest that in cases where the interest to attain adequate sanctions at the Member State level stands against the prohibition of successive proceedings for the same acts, the former prevails. In other words, to the extent that ne bis in idem in the sense of the Erledigungsprinzip is recognized, the requirement of effective sanctions must already have been fulfilled. What is less problematic is of course the set-off principle, since that aspect of ne bis in idem is a form of proportionality requirement which could readily be balanced against Greek Maize. For situations falling within the scope of Union law, is the inevitable conclusion then that the protection provided by ne bis in idem either in national procedural orders or the Charter only can address proportionality concerns, and heavily circumscribes the Erledigungsprinzip? Or is this conclusion premature, and a result of an unfortunate ambiguity in Åkerberg Fransson? The ‘effectiveness approach’ suggests that a lack of effectiveness of the sanctions considered in the first set of proceedings could be remedied by allowing for a second set of (criminal) proceedings, thus limiting the scope for the Erledigungsprinzip. However, consider the ruling in Spector Photo.113 The National Court in that case referred several questions on the interpretation of Directive 2003/6/EC on insider dealing and market manipulation (abuse).114 In this context the sixth question is of particular interest as it concerned Article 14(1) of the Directive, which reads: Without prejudice to the right of Member States to impose criminal sanctions, Member States shall ensure, in conformity with their national law, that the appropriate administrative measures can be taken or administrative sanctions be imposed against the persons responsible where the provisions adopted in the implementation of this Directive have not been complied with. Member States shall ensure that these measures are effective, proportionate and dissuasive.

112 D Ritleng, ‘De ‘larticulation des systèmes de protection des droits fondamentaux dans l’Union. Les enseignements des arrêts Åkerberg Fransson et Melloni, RTDeur. avril-juin 2 2013—pages 193 á 426, 267–292, 289 and 292 (Swedish version: Ritleng, Dominique [2014], Lärdomar av EU-domstolens parallella domar i målen Åkerberg Fransson och Melloni SvJT 2014 s 36–71, 67 and 70); A-J Kargopoulos, ‘Ne bis in idem in Criminal Proceedings’ in M Bergström and A Jonsson Cornell (eds), European Police and Criminal Law Co-operation, Swedish Studies in European Law Vol 5, (Oxford, Hart Publishing, 2014) 85–126, 116. 113 Case C-45/08 Spector Photo Group NV and Chris Van Raemdonck v Commissie voor het Bank-, Financie- en Assurantiewezen (CBFA) [2009] ECR I-12073. 114 Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) [2003] OJ L-96/16.

166 Magnus Gulliksson The referring Court asked in essence whether Article 14(1) laid down an obligation for Member States which had introduced criminal sanctions alongside administrative sanctions, to take into consideration the possibility and/or level of a subsequent criminal sanction, when the proportionality of the administrative sanction was determined.115 The Court answered the question in the negative, stating that ‘The assessment of how effective, proportionate and dissuasive the administrative sanctions laid down in Directive 2003/6 are cannot depend on a hypothetical criminal sanction which may subsequently be imposed.’116 Consequently, although Member States have an obligation to ensure the existence of administrative sanctions and have discretion to introduce criminal sanctions in order to penalize non-compliance with the Directive, an assessment of the effectiveness of the administrative sanctions cannot rely on and include assessing any subsequently imposed criminal sanctions. In Spector Photo, the Directive concerned contained a specific obligation to ensure the existence of administrative sanctions, but the conditions for the assessment of effectiveness should hold equally for situations where the discretion to choose sanctions is derived from the Greek Maize criteria. Any lack with respect to effectiveness must be healed by modifying the administrative sanctions themselves. It is however questionable whether that extends to a general obligation for national courts to aggravate, create or extend sanctions resulting in adverse effects for the individual concerned in a particular case. The obligation for Member States in that regard may differ, depending on whether the sanctions involved in the first set of proceedings are to be found in criminal law or, as in Spector Photo, in administrative law. From the outset, although Member States may have discretion in outlining the sanctions, they must meet the requirements set by general principles of Union law.117 At the same time, Member States are under the duty of consistent interpretation.118 Both with respect to Article 4(3) TEU and directives requiring implementation of effective sanctions, courts in

115

Spector Photo (n 113) paras 23 and 74. ibid para 76. 117 On the obligation for respecting general principles of Union law when meeting the Greek Maize criteria, see eg Case C-263/11 Aina¯rs Re¯dlihs v Valsts ien‚ e¯mumu dienests EU:C:2012:497 para 44 and Case C-430/05 Ntionik Anonymi Etaireia Emporias H/Y, Logismikou kai Paroxis Ypiresion Michanografisis and Ioannis Michail Pikoulas v Epitropi Kefalaiagoras [2007] ECR I-5835 para 53. 118 With respect to directives, see eg. Case 14/83 Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, para 26; Case C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECR I-4135, para 8; Case C-91/92 Paola Faccini Dori v Recreb Srl [1994] ECR I-3325, para 26. With respect to treaty provisions, see eg Case C-165/91 Simon J M van Munster v Rijksdienst voor Pensioenen [1994] ECR I-4661, paras 32–34; Case C-262/97 Rijksdienst voor Pensioenen v Robert Engelbrecht [2000] ECR I-7321, para 39. 116

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Member States have an obligation to interpret and apply national rules as far as possible in order to fulfil that requirement. Although in Spector Photo the relevant directive provision only contained an obligation to implement appropriate administrative sanctions, leaving criminal sanctions at the discretion of Member States,119 this can hardly be seen as anything but an iteration of the general obligation following from Article 4(3) TEU and Greek Maize. The approach taken in Spector Photo with respect to the assessment of sanctions should therefore be generally applicable. Hence, the effectiveness of sanctions should be examined and possibly also adjusted if necessary in the first set of proceedings by relying on the duty of consistent interpretation. Accordingly, in order to fulfil the Greek Maize criteria with respect to administrative sanctions, a national court could for instance choose to apply stricter levels for penalties than prescribed in non-binding case law or guidelines, provided it has the discretion to do so. Of course, that possibility becomes narrower should the first set of proceedings not involve administrative but criminal penalties. This is a result of the principle of legality, which in the area of criminal law is given particular weight. Due to the principle nulla poena sine lege, a national court would not be able to impose more aggravating penalties if not provided for by national law. That is to say, if the national court is left with little or no discretion to choose penalties, it cannot create or extend penalties beyond the limits set by the provisions of national criminal law.120 Although there is a duty of consistent interpretation even in the area of criminal law,121 the precise limits of that duty can be difficult to ascertain. It is clear from settled case law that the duty of consistent interpretation cannot lead to criminal liability being determined or aggravated on the basis of a directive or framework decision alone.122 If the offence involved in the first set of proceedings does not cover an unlawful act for which Member State must provide effective sanctions according to national law, the scope of the relevant rule cannot be extended by a national court in a particular proceeding in order to fulfil Greek Maize. There seems, however, to be some differences of opinion on how far the principle of legality circumscribes the duty of consistent interpretation in such cases. Böse for instance holds that the principle of legality does not exclude possible interpretations of existing statutory offences which would be in accordance

119

Cf Article 14(1) of Directive 2003/6/EC at n 114 supra. Admittedly, there is always some room for interpretation but again, that interpretative space is limited within the area of criminal law. 121 Case 80/86 Criminal proceedings against Kolpinghuis Nijmegen BV [1987] ECR 3969, paras 12–13; Case C-105//03 Criminal proceedings against Maria Pupino [2005] ECR I-5285, paras 43–45. 122 ibid; Case C-60/02 Criminal proceedings against X [2004] ECR I-651, para 61. 120

168 Magnus Gulliksson with Union law.123 A slightly stricter stance is taken by Dougan who suggests that Union law draws a line where reliance on a directive would ‘aggravate the defendant’s liability beyond the ordinary interpretation to be attributed to the applicable national criminal law’.124 These differences should not be overstated. The protection from the principle of legality does first and foremost target criminal liability. Once that has been established in accordance with national law, there seems to be room for some adjustments to the level of the penalties, depending on the discretion given to the court by national law and as long as those adjustments are not made solely on the basis of a directive. In conclusion, the duty of consistent interpretation in combination with the approach adopted in Spector Photo, speaks in favour of addressing the requirement for adequate/effective sanctions in the first set of proceedings. If national law does not provide for any discretion to the courts for adjustments of the penalties, and such an adjustment is necessary in order to fulfil the Greek Maize criteria, the responsibility to address the incompatible national rules on sanctions would rest squarely with the legislator. That stance would also respect the Erledigungsprinzip, which as an expression of the principle of legal certainty should be paid more respect than the ‘effectiveness approach’ accounts for. The ambiguities and even contradictions in Åkerberg Fransson with respect to the Erledigungsprinzip could perhaps be viewed as an oversight or hesitation by the Court to make a clear commitment in an area potentially sensitive for the Member States. However, the ruling adds to an uncertainty already in place prior to the judgment in Åkerberg Fransson. An illustrating example of the seemingly insurmountable obstacles facing the CJEU in finding an intelligible approach to balance the requirement of adequate/effective sanctions with fundamental rights protection can be found in the curios case of Berlusconi.125 In that case, separate charges were brought against certain company officials for disclosure of false annual accounts. The Italian rules on false accounting in question implemented provisions laid down in the First, Fourth and Seventh Companies Directives.126 Subsequent to the acts which the defendants were held 123 M Böse, ‘The Obligation of Member State to Penalise Infringements of Community Law: From Greek Maize to French Farmers’ (2001–2002) Revue des Affaires Européennes 103–114, 110. 124 Dougan [2012] (n 91), 117 (emphasis added). 125 Joined Cases C-387/02, C-391/02 and C-403/02 Criminal proceedings against Silvio Berlusconi and Others [2005] ECR I-3565. 126 First Council Directive 68/151/EEC of 9 March 1968 on co-ordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community, [1968] OJ English Special Edition I, 41 (‘the First Companies Directive’); Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54 (3) (g) of the Treaty on the annual accounts of

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liable for, Italy adopted more lenient rules on penalties. According to the lex mitior principle as laid down in the Italian Criminal Code, the latter and more lenient provisions should apply, which effectively would result in dismissal of the charges brought against the defendants. Several questions were referred from the Italian courts, but for present purposes mainly two issues are of interest.127 Firstly, does it matter for the assessment of whether appropriate/effective sanctions have been adopted by the Member State that the requirement is laid down in a directive, in parallel with the requirement of loyal co-operation in Article 4(3) TEU?128 Secondly, how should a potential conflict between Union law and Italian law be understood, ie at what level does the conflict occur? In order to answer the latter question, it is necessary first to assess the Italian implementation of said Directives. It seems that the substantive parts were not a matter of concern.129 Rather, the question partially pertained to whether not only a failure to disclose annual accounts should render penalties which the wording of Article 6 of the First Companies Directive suggested, but also include a prohibition to disclose false accounts. After performing a systematic interpretation of the Directives, the Court answered that question in the affirmative. Furthermore and critically, did the newly adopted Italian legislation on penalties conform to the requirement of appropriate sanctions? That question was transformed by the Court into an inquiry of whether the requirement for appropriate penalties for offences relating to false accounting was imposed by Article 6 of the First Companies Directive or followed from (now) Article 4(3). By making this distinction, the Court effectively set the path for its conclusions. Indeed, the Court stressed that the requirement of appropriate penalties was laid down in Article 6 of the First Company Law Directive, noting that a ‘similar requirement’ was set out in (now) Article 4(3) TEU.130 After briefly concluding that the principle of the retroactive application of the more lenient penalty must be regarded as a general principle of Union law, one would have expected the Court to engage in the rather intricate task of balancing that principle against the principle of adequate/effective sanctions. That is to say, in a case where the more lenient penalty prescribed by national law would be considered inadequate as such either according to a directive or Greek Maize, would the

certain types of companies, [1978] OJ L-222/11 (‘the Fourth Companies Directive’); Seventh Council Directive 83/349/EEC of 13 June 1983 based on the Article 54 (3) (g) of the Treaty on consolidated accounts, [1983] OJ L-193/1 (‘the Seventh Companies Directive’). 127 Cf H van der Wilt, ‘Court of Justice of the European Communities (Judgment of 3 May 2005 (Silvio Berlusconi and Others), Joint Cases C-387/02, C-391/02 and C-403/02)’ (2006) 2 European Constitutional Law Review 303–309 303. 128 As elaborated in the Greek Maize (n 88) case law. 129 See A Biondi and R Mastroianni, ‘Joined Cases C-387/02, C-391/02 and C-403/02, Berlusconi and others’ (2006) 43(2) Common Market Law Review 553–569 561, fn 37. 130 Berlusconi (n 125) paras 63–64.

170 Magnus Gulliksson Union law principle of retroactive application of the more lenient penalty still prevail? The Court for its part avoided the issue and rather abruptly concluded that it was unnecessary to resolve that question, since the obligation had been found in a directive.131 Instead, it went on to examine to what extent (if any), the Italian law-enforcement authorities could rely on the First Company Law Directive. Unsurprisingly, having so framed the conflict between the new Italian law on penalties and Union law, the Court found that a directive ‘cannot of itself impose obligations on an individual, and cannot therefore be relied on as such against that individual’.132 If the newly adopted rules on penalties in Articles 2621 and 2622 of the Italian Civil Code were found to be contrary to Article 6 of the First Company Law Directive, relying on the Directive would have had the effect of setting aside the incompatible laws on penalties.133 According to the Court, this would essentially have resulted in the application of more severe penalties, pursuant to the ‘old’ rules.134 This in turn, concluded the Court, ‘would be contrary to the limits which flow from the essential nature of any directive’.135 However, as several commentators have noted, the requirement of adequate/effective sanctions laid down in Article 6 of the First Company Directive does little more than reiterate the general obligation in Article 4(3) TEU and the Greek Maize case law.136 It is therefore somewhat curious why in Berlusconi, the test of adequate/effective sanctions is limited to the requirement in the Directive, particularly since the Court suggests a conflict with ‘other rules of Community law’.137 The Court did not find it necessary to explore that path,138 and therefore the outcome in Berlusconi hinges not so much on the principle of lex mitior in Union law, but on the doctrine that directives of themselves cannot impose obligations on individuals. As Biondi/Mastroianni points out, the Court seems satisfied with the notion that the principle of primacy of Union law should be applied from

131

ibid para 71. ibid para 73. 133 Eg in accordance with Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629. 134 Berlusconi (n 125) para 76. It is perhaps not so much the application of more severe penalties, as the possibility for indictments and thus determining the criminal liability which is at stake. The former is just a consequence of the latter. 135 ibid para 77. 136 Biondi and Mastroianni (n 129) 564 ff; van der Wilt (n 127) 306; M Dougan in U Sedelmeier and AR Young (eds), The JCMS Annual Review of the European Union in 2005, Vol 44 (Oxford, Wiley-Blackwell, 2006) 119–135, 124. 137 Berlusconi (n 125) para 70. 138 Cf ibid para 71. 132

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the outset.139 Thus, if the newly adopted Italian rules on sanctions in Articles 2621 and 2622 of the Italian Civil Code had been found not to satisfy the requirement of adequate/effective sanctions, the national Court would be under an obligation to set aside those new Articles regardless of the lex mitior principle.140 Again, what ultimately prevents the principle of primacy of Union law to be applied is not that the latter must give way to the principle of lex mitior, but rather the Court’s finding that the requirement of adequate/effective sanctions is laid down in the First Companies Directive.141 As mentioned above, directives cannot of themselves aggravate liability in criminal law.142 However, as Bondi and Mastroianni correctly point out, that limitation on directives aims at substantive provisions of an unimplemented directive—a situation quite different from that in Berlusconi.143 The ambivalent and cautious stance by the Court in Berlusconi can be interpreted in several ways. The reference to Simmenthal and the principle of primacy of Union law could of course be viewed as yet another sign that effectiveness in the form of adequate/effective sanctions should be given priority whenever there is a conflict with fundamental rights within Union law. Yet, that reference can perhaps also be seen as part of the discourse employed by the Court in order to achieve an outcome that would nonetheless have followed but only after a much more complex exercise. The Court’s silence on the character of the principle of lex mitior in Union law together with its use of the doctrine on directives, can therefore be understood as a sheet-anchor employed in order to avoid the treacherous waters where effectiveness would need to be balanced against fundamental rights as a conflict internal to Union law. Another way to understand the emphasis put by the Court on the requirement being laid down in a directive, is to view it in light of the Mangold case.144 In that case, the Court found that the principle of non-discrimination on grounds of age constituted a general principle of Union law. The Directive in question merely reiterated and elaborated that principle.145 Therefore, the principle could be invoked in a horizontal situation. In contrast, the parallel existence of a rule (on adequate/effective sanctions) both in a directive and in the Treaty seems to have had the opposite effect in Berlusconi, ie barring the application of the general rule laid down in (what is now) Article 4(3) TEU. In retrospect, the outcome in Berlusconi can be characterized as almost a ‘reverse Mangold-effect’. Both cases show a preoccupation of the Court with established distinctions on the horizontal/vertical 139 140 141 142 143 144 145

Biondi and Mastroianni (n 129) 557. ibid; Berlusconi (n 125), para 72. ibid paras 76–77. ibid para 74; cf at (n 135). Biondi and Mastroianni (n 129) 566 ff. Case C-144/04 Werner Mangold v Rüdiger Helm [2005] ECR I-9981. Directive 2000/78/EC (n 90).

172 Magnus Gulliksson direct effect of directives vis-à-vis individuals, which at best is aimed to preserve those distinctions rather than avoid different normative questions, but which frankly in any case is quite unconvincing. In Berlusconi, this was particularly misguided as the aggravating effect did not (only) follow from the Directive in question. As Dougan and Biondi/Mastroianni suggest, the Court should instead have invoked (now) Article 4(3) TEU.146 By elaborating further on the status of the principle of lex mitior/retroactive application of the more lenient penalty as a general principle of Union law, possibly also by referring to Article 49(1) of the Charter, the Court could have properly delineated the conflict as a choice between competing interests. On the one hand, primacy of Union law in case of conflict with national law and on the other, the protection provided by general principles of Union law.147 This should be viewed as a conflict within Union law, not between the latter and national implementing measures.148 At least when viewed in the abstract, the requirement of adequate/effective sanctions finds its limit in general principles of Union law, including those codified in the Charter. This is nothing new, but it is important to note how general principles (such as the principles of lex mitior or ne bis in idem) work to limit effectiveness of sanctions. In cases such as Berlusconi, the situation is binary. Either the lenient sanctions are applied retroactively, or they are not. Due to the principle of legality, there is no room for the national court to discover or invent new penalties which can be applied in the case in order to fulfil the Greek Maize criteria. The same problem occurs when considering the ne bis in idem principle. When applied as the Erledigungsprinzip in situations such as that in Åkerberg Fransson, the possible outcome is binary. Either a second set of proceedings is barred or it is not. Should the ne bis in idem principle bar a second set of proceedings, the sanctions that can be imposed in the first set of proceedings may still be 146 Biondi and Mastroianni (n 129) 565; Dougan [2006] (n 136) 124. But see van der Wilt (n 127) 308 who submits that the omission of the Court to answer the question of a potential conflict with ‘other rules of [Union] law’ is based on the assumption that Union law cannot defeat domestic law in the case at hand. That may be so, but it does not make the narrow reliance by the Court on the doctrine of reverse vertical direct effect to appear as more coherent. 147 Cf Dougan [2012] (n 91) 125. The principle of retroactive application of the more lenient penalty has been confirmed in eg Case C-45/06 Campina GmbH & Co v Hauptzollamt Frankfurt (Oder) [2007] ECR I-2089 para 32 and Case C-420/06 Rüdiger Jager v Amt für Landwirtschaft Bützow [2008] ECR I-1315 para 59. 148 Even if one would frame the conflict as between Union law and Italian law, it arises not primarily between the newly adopted Italian rules on sanctions and Article 6 of the First Company Law Directive or Article 4(3) (ex Article 10) TEU. Rather, the latter collides with the existing national rule on lex mitior, which is triggered if, subsequently to the committed criminal act, more lenient penalties are prescribed. It would therefore not be entirely correct to say that the principle of legality is set aside by the principle of retroactive application of the more lenient penalty, as the rule of national law which potentially needs to be set aside existed even at the time when the criminal act was committed. Cf however Biondi and Mastroianni (n 129) 565 f.

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subject to a ‘residue requirement’ of effectiveness. That requirement may be met by the national court if there is sufficient latitude in national law for consistent interpretation which allows for a choice of more severe sanctions in the first set of proceedings. Otherwise, the deficiency must be addressed by the legislator.149 From the preceding analysis, it is quite evident that both Åkerberg Fransson and Berlusconi can be read as giving a priority to the requirement of adequate/effective sanctions whenever that obligation comes into conflict with fundamental rights that are protected in the national order. That conclusion appears less convincing when considering that the protection of fundamental rights in the Member State could coincide with the protection provided by Union law. The latter could of course be allowed to have a negative impact on effectiveness. In light of Spector Photo, the appropriate way to assess whether sanctions are adequate is to consider only the penalties available in the first set of proceedings, thus disregarding any possibility for subsequent criminal proceedings. Perhaps the most important takeaway to understand is the anatomy of the ambiguity in paragraphs 36 and 29 of Åkerberg Fransson. This might become more explicit if one considers how the Court seems to view the ne bis in idem principle. Although kept in abstract language, the CJEU essentially qualifies a national rule on ne bis in idem by an assessment of the ‘combining of sanctions’.150 While this might be perfectly in order when measuring along the scale of proportionality contra effectiveness of penalties, it completely downgrades the Erledigungsprinzip to little more than an accessory to the principle of proportionality. Yet when applying the equivalent principle in Article 50 of the Charter, the Erledigungsprinzip seems to be respected,151 even though the protection from the national rule and the Charter rule can coincide completely. The root to the challenges posed by paragraphs 29 and 36 in Åkerberg Fransson lies in the topology of the discretion awarded to Member States. By linking the discretion in paragraph 36 to an assessment of penalties (ie possible outcomes) along

149 Again and for clarity, it should be noted that directives and presumably all provisions of Union law which leave discretion to Member States for implementing measures in criminal law cannot be relied upon by themselves and independently of a national law adopted for their implementation. This follows from the principle of legality. From that, one cannot infer a complete exclusion of each and every interpretation which would entail stricter penalties in criminal law—provided such interpretative discretion is afforded by national law—for a person who acts in contravention of the provisions of Union law, cf at n 121 et seq; Kolpinghuis Nijmegen (n 121) para 14; Case C-168/95 Criminal proceedings against Luciano Arcaro [1996] ECR I-4705 para 42; Joined Cases C-74/95 and C-129/95 Criminal Proceedings against X [1996] ECR I-6609 para 24 and with respect to regulations, Criminal Proceedings against X [2004] (n 122) paras 61–62). If anything, that space for interpretation should apply with greater or equal force for administrative sanctions of a criminal nature. 150 Åkerberg Fransson (n 4) para 36. 151 Assuming the ‘effectiveness-approach’ is incorrect.

174 Magnus Gulliksson the line of effectiveness/proportionality, the approach becomes essentially one-dimensional. The underlying rationale of penalties being chosen according to their degree of severity makes consideration to ‘binary’ rights such as lex mitior or the Erledigungsprinzip quite difficult, as these rights do not fall completely under the ambit of the principle of proportionality.

LEGAL CERTAINTY AND EFFECTIVENESS

Although itself identified as a general principle of Union law,152 the ne bis in idem principle has elements from both the principle of proportionality (as the set-off principle or Anrechnungsprinzip, discussed above) and the principle of legal certainty (as the Erledigungsprinzip), both being general principles of Union law.153 The latter suggests a close relationship to res judicata,154 which puts a limit on effectiveness by barring further proceedings. It would therefore be pertinent to ponder how res judicata has been allowed to limit the principle of effectiveness in Union law. At the outset, national courts of Member States are not required to set aside rules which give a decision the force of res judicata, even if such disapplication would remedy an infringement of Union law.155 This follows from the fact that Member States as a rule enjoy procedural autonomy. However, that rule is not without exceptions. National procedural rules must still fulfil the Rewe/Comet criteria, and thus cannot be less favourable than those governing purely domestic actions (principle of equivalence) and must not render impossible in practice the exercise of rights conferred by Union law (principle of effectiveness). At least in theory then, the scope of res judicata can be circumscribed by the Rewe/Comet criteria being applied. In Kühne & Heitz, the Court identified four conditions which in that case led to an obligation under Article 10 EC (now 4(3) TEU) for an administrative body to review the administrative decision which had become final. Firstly, national law conferred on the administrative body the competence 152 As the earliest findings of the Court, reference is generally made to Joined Cases 18/65 and 35/65 Max Gutmann v Commission of the EAEC [1967] ECR 75; Walt Wilhelm (n 42) para 11 and Case 7/72 Boehringer Mannheim GmbH v Commission of the European Communities [1972] ECR 1281 para 3; see also Case T-224/00 Archer Daniels Midland Company and Archer Daniels Midland Ingredients Ltd v Commission of the European Communities [2003] ECR II-2597 para 85. It can however be questioned if these early findings rather ‘discovered’ the Anrechnungsprinzip or set-off principle, understood as an aspect of the principle of proportionality. In any case, later case law has confirmed that the ne bis in idem principle as a general principle of Union law is also viewed as expressing the Erledigungsprinzip, see eg LVM (n 48) paras 59–61. 153 Cf T Tridimas, The General Principles of EU Law, 2nd edn (Oxford, Oxford University Press, 2006) 136 et seq. On legal certainty, see eg Case C-453/00 Kühne & Heitz NV v Produktschap voor Pluimvee en Eieren [2004] ECR I-837 para 24. 154 Bas Van Bockel [2010] (n 43) 41 f. 155 C-234/04 Rosmarie Kapferer v Schlank & Schick GmbH [2006] ECR I-2585 para 21.

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to reopen the decision which had become final. Secondly, the decision had become final due to a judgment of a national court, against which there was no judicial remedy. Thirdly, that judgment was based on an interpretation of Union law which, in light of a subsequent ruling by the CJEU, was incorrect and made without a request for a preliminary ruling. Fourthly, the person concerned by the decision complained to the administrative body immediately after becoming aware of the ruling of the CJEU.156 Whereas in Kühne & Heitz, the contested final decision was administrative, the circumstances in Kapferer where different. That case concerned a judicial decision on jurisdiction possibly contrary to Union law. The referring Court asked inter alia if Community (Union) law required it to set aside a final judicial decision if the latter infringed Community (Union) law. Having first recalled the Rewe/Comet requirements for the principle of equivalence and effectiveness,157 the Court referred to the first condition laid down in Kühne & Heitz and resolved the issue ex hypothesi: Even assuming that the principles laid down in that judgment could be transposed into a context which, like that of the main proceedings, relates to a final judicial decision, it should be recalled that that judgment makes the obligation of the body concerned to review a final decision, which would appear to have been adopted in breach of Community law subject, in accordance with Article 10 EC, to the condition, inter alia, that that body should be empowered under national law to reopen that decision.158

Since that condition of was not met, there was no need for a closer examination of the potential differences between administrative and judicial decisions with respect to the obligation to set aside such decisions due to infringements of Union law. The Court found that Article 10 TEC (now Article 4(3) TEU) did not require the National Court to disapply the national rules on res judicata in order to set aside the final judicial decision. Half a year later, the Court in Arcor faced the question of whether Community (Union) law required a reopening of a final decision to charge fees for telecommunication licensees excess of limits set by Directive 97/13/EC.159 The Court reiterated that while Community (Union) law in accordance with the principle of legal certainty did not require the reopening of administrative decisions which had become final, the scope of that principle could still be constrained by the principle of loyal cooperation in (now) Article 4(3) TEU.160 In that context, the Court repeated the conditions laid 156

Kühne & Heitz (n 153) para 26. Kapferer (n 155) para 22. 158 ibid para 23. 159 Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorizations and individual licences in the field of telecommunications services [1997] OJ L-117/15. 160 Joined Cases C-392/04 and C-422/04 i-21 Germany GmbH (C-392/04) and Arcor AG & Co KG (C-422/04) v Bundesrepublik Deutschland [2006] ECR I-8559 paras 51–52. 157

176 Magnus Gulliksson down in Kühne & Heitz.161 As the two telecommunication undertakings had not availed themselves of their right to appeal against the decisions and therefore not exhausted all legal remedies available, the situation was not comparable to that in Kühne & Heitz. The CJEU did however not satisfy itself with a test against the Kühne & Heitz conditions, but went on to ascertain whether the National Court was required to acknowledge the existence of an obligation for the administrative body to reimburse the fees paid, even if that meant a reopening of a final administrative decision.162 It should be noted that it was the discretion or rather ‘interpretational space’ provided by a facultative provision of German administrative procedural law that was at issue: Was the National Court required to deem national legislation which was clearly incompatible with Community (Union) law as fulfilling the criterion of ‘manifest unlawfulness’ within the meaning of the relevant provision of national administrative procedural law, in order to have the administrative act withdrawn regardless of it being final? The Court reiterated the conditions set by Rewe/Comet, namely that although Member States have procedural autonomy, national rules of procedural law must conform to the principle of effectiveness and principle of equivalence. As no issue of effectiveness was found,163 the task of answering the question stated above, essentially an issue of ascertaining equivalence, was left to the National Court. In light of Arcor, some caution should be exercised in drawing conclusions about what causes an obligation for Member States to set aside the force of res judicata for decisions and judgments due to essentially the principle of sincere cooperation arising from Article 4(3) TEU. The conditions laid down in Kühne & Heitz may generally be applicable at least by analogy, in deciding when the latter principle requires res judicata to be set aside. Those conditions do however not exclude consideration of other factors. The ruling in Kempter could give the impression that the conditions laid down in Kühne & Heitz provided a generally applicable yardstick against which an assessment of national provisions of res judicata should be made with respect to effectiveness.164 Later case law suggests however that the Kühne & Heitz conditions should properly be viewed as the concrete manifestation in that case of the test against the principle of sincere cooperation, and in its extension, the principle of effectiveness and of equivalence, as laid down in Rewe/Comet.

161

ibid para 52. ibid paras 55–56. 163 Time-limits were not contested as being unreasonable and there was a possibility to withdraw unlawful acts, see ibid paras 58–61. 164 See Case C-2/06 Willy Kempter KG v Hauptzollamt Hamburg-Jonas [2008] ECR I-411 paras 38–39 and 44. 162

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The latter is quite apparent in Byankov.165 The relevant question was similar to that in Arcor, namely if Union law required that an administrative order which had become final, ought to be reopened should that order be found to infringe Union law. It should be pointed out that the order in question had the effect of continuing to restrict the free movement of the person concerned. Furthermore, the order was not challenged and was therefore not subject to any judicial review. After reiterating the Rewe/ Comet requirements of effectiveness and equality,166 the Court held that according to the case law, the Court had ‘taken account of the particular features of the situations and interests at issue in order to strike a balance between the requirement for legal certainty and the requirement for legality under European Union law’.167 How should the reference to legality be understood? The answer may be found in the view on the interpretation of Union law adopted by the Court. According to that view, the interpretation of a rule of Union law given by the Court is the meaning and scope which it ‘ought to have been understood and applied from the time of its coming into force’.168 Indeed, in the cases referred to where maintaining the finality of an administrative or judicial decision would amount to a conflict with Union law, that conflict transpired because of the interpretation of Union law ex post facto. With such a retrospective view, later interpretation by the Court of a particular provision of Union law could make prior decisions by national bodies contrary to that provision.169 Hence, such conflicts could be framed as an issue of legality, but could equally well be viewed as concerning the conditions under which Union law requires legal certainty to be given less priority in order to achieve effectiveness of substantive Union law. In this context it is important to make a distinction between disputes or claims which have been subject to judicial or other legal proceedings, and events or claims which have not. In the former case, a judicial or other legal assessment has already been made according to the interpretation of a Union law provision at the time of the ruling, and the question is whether the newly found 165 Case C-249/11 Hristo Byankov v Glaven sekretar na Ministerstvo na vatreshnite raboti EU:C:2012:608. 166 ibid para 69. 167 ibid para 77 (stress added). 168 Kühne & Heitz (n 153) para 21 and Kempter (n 164) para 35 with references. 169 Incidentally, the question of whether subsequent interpretation of Union law by the Court would suffice for retrial (resning) pursuant to Swedish procedural law has been tried by the Supreme Court and answered in the negative. See NJA 2013 s 42. The view on interpretation held by the CJEU seems at best somewhat naive, and in any event contradictory. Cf Case 283/81 CILFIT and Others [1982] ECR 3415 para 20 on the issue of acte clair, according to which interpretation of every provision of [Union] law should take regard of the state of evolution of [Union] law ‘at the date on which the provision in question is to be applied’. The latter can hardly be reconciled with the view that such an interpretation is one expressing the understanding which the provision in question ought to have had since its coming into force.

178 Magnus Gulliksson correct interpretation is sufficient for overturning the prior decision or ruling. By contrast, in cases where no judicial decision or judgment exists, the atemporal view on interpretation of the Court has the effect of allowing the largest possible number of cases to be tried according to the newlyfound correct interpretation of the Union provision in question. Future and past cases are given the same opportunity to be tried, and thus the ‘correct’ interpretation of Union law is given maximal impact. This is of course only possible if the interpretation by the Court is considered to be the correct and valid one dating back to the particular provision entering into force. While this might be acceptable in order to promote the impact of Union law for unlitigated claims based on Union law, it can hardly be seen as a strong argument for allowing retrials. That effectiveness or the primacy of Union law requires setting aside a judicial or administrative ruling or decision does not necessarily mean that there primarily is a conflict with legal certainty and in particular, res judicata. A case which sometimes is invoked as an example where the requirements of Union law effectiveness rather bluntly sets aside the intricacies of national procedural law is Lucchini.170 However, the circumstances in that case were rather exceptional. Lucchini had been granted aid by Italian authorities for the modernization of steel mills. Despite repeated requests, the Commission did not achieve sufficient information by the competent authorities, and eventually found the aid incompatible with the common market. As the aid had not been disbursed to Lucchini, it initiated proceedings against the competent authorities. Both at first instance and on appeal, the Italian Courts ruled in favour of Lucchini. The ruling by the appeals court (Corte d’appello di Roma) eventually achieving the force of res judicata.171 After the aid had been disbursed, and following correspondence with the Commission which held that the competent authorities by the disbursement of funds had infringed Community (Union) law, the competent authorities initiated proceedings against Lucchini in order to recover the aid. It was in those proceedings that the question arose whether Community (Union) law precluded the application of a provision of Italian procedural law which lays down the rule of res judicata. The Court answered the question in the affirmative. It must be kept in mind though, that within the field of state aid, the Commission has exclusive competence to assess the legality of an aid scheme.172 Therefore, Italian courts never had the jurisdiction to decide on the legality of the aid 170 Case C-119/05 Ministero dell’Industria, del Commercio e dell’Artigianato v Lucchini SpA [2007] ECR I-6199. Cf eg P Craig and G de Búrca, EU Law, 5th ed (Oxford, Oxford University Press, 2011) 234 and 265; K Lenaerts, ‘The Rule of Law and the Coherence of the Judicial System of the European Union’ (2007) 44 Common Market Law Review 1625–1659, 1649 f. 171 Lucchini (n 170) para 29. 172 ibid para 52.

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or the decision by the Commission declaring the aid incompatible with the common market in the first place. The outcome of the judgment in Lucchini was to set aside the Italian provision on res judicata, but the rather blunt use of Community (Union) law primacy with reference to Simmenthal should not be read as targeting res judicata as such.173 Instead, Lucchini should properly be read as targeting the effect of ultra vires decisions by national courts in the field which exclusively falls within the ambit of the Commission. It is therefore not comparable to the previous cases discussed. In a similar vein, the case of Olimpiclub should be distinguished from earlier cases up to Lucchini.174 The case concerned the effect of the same rule on res judicata of Italian law as that in Lucchini. The question was whether a prior ruling by an Italian court on a point of law being contrary to Union law could preclude a subsequent proceeding on VAT in relation to a tax year for which no final judicial decision had been made. It is important to stress that the prior ruling by the Italian court concerned a point of law which, if given a prejudicial effect with respect to subsequent proceedings, effectively would bar the correct assessment of VAT for future tax years. Olimpiclub therefore says little about the requirement from Union law to reopen final decisions due to subsequent interpretation of Union law by the CJEU, and more to the binding force of judgments (Bindungswirkung) with respect to a particular issue or question between the parties (cf collateral estoppel), ie the limit of the scope of judicial decisions on points of law having effect for subsequent proceedings. Although Union law in Lucchini and Olimpiclub restricted the force of res judicata, one cannot from these cases draw general conclusions with respect to the relationship between res judicata and effectiveness of (correctly interpreted) Union law. Even if the outcome in both cases was to set aside res judicata, it is important to stress that the reason for the outcome in each case was not the precluding effect of res judicata as such. In Lucchini, the contested ruling was made by a national court lacking competence, which for all practical purposes should imply that the ruling be considered null and void. The scope of res judicata in such a case should consequently also be considered null, which is the same as allowing for the reopening of the case. It can in any case hardly be seen as a far-reaching restriction of the principle of legal certainty. In Olimpiclub, the question concerned the prospective effects (positive Bindungswirkung) of a legal assessment of one and the same contract for future taxable years. If the subject matter in the proceedings is taxation for a particular taxable year, to restrict the prospective

173 Cf ibid para 61 with reference to Simmenthal (n 133). On the issue of what the ruling actually implies for res judicata vis-à-vis effectiveness and primacy, see A Biondi, ‘Case C-119/05 Lucchini’ (2008) 45 Common Market Law Review 1459–1467, 1462 ff. 174 Case C-2/08 Amministrazione dell’Economia e delle Finanze and Agenzia delle entrate v Fallimento Olimpiclub Srl [2009] ECR I-7501.

180 Magnus Gulliksson effects of the assessment of the contract for subsequent taxable years (restricting collateral estoppel) is not as far-reaching as requiring past taxations to be reviewed on that ground. To distinguish the reasons from the outcome in a particular case when setting aside res judicata (Lucchini), and to distinguish collateral estoppel (positive Bindungswirkung) from barring subsequent proceedings with respect to the same cause of action, is decisive when assessing how far Union law demands legal certainty in the form of res judicata to yield for effectiveness. The distinction is important, but not always made.175 Also in Byankov, the issue was the continuing effects of the administrative decision not to let Mr Byankov leave the territory of Bulgaria, which can therefore be compared to Olimpiclub. Based on the cases referred to, it seems that the distinctions just mentioned are more relevant than making a partition based on whether a decision is administrative or judicial.176 From the foregoing analysis, it seems safe to say that only under exceptional circumstances will legal certainty expressed as res judicata of national administrative or judicial decisions be set aside in favour of the effectiveness of Union law. That caution is no less warranted with respect to criminal proceedings where even higher procedural standards of protection for the individual should apply. Granted, in several of the cases referred to above, the conflict between legal certainty and correct application of Union law occurred as a consequence of later rulings by the CJEU on the (correct) interpretation of a particular provision of Union law which had not been considered by national rules in prior proceedings. In the context of the ne bis in idem principle and the requirement of effective sanctions, the issue is rather how the principle of legal certainty and the Erledigungsprinzip should be reconciled with the fact that available penalties in the first set of proceeding are known to be insufficient with respect to Greek Maize. Despite the differences, in light of the susceptibility shown in the case law of the CJEU to national rules on res judicata, even when those are found to impede the correct application of substantive Union law, putting too much emphasis on the requirement of effective sanctions seems stretched at best.

ENFORCEMENT, EFFECTIVENESS AND THE LEGITIMACY OF UNION LAW

As was alluded to in the introduction and section 3, the scope of the protection provided by the ne bis in idem principle in Union law can differ depending on the legal instrument invoked in which the principle is laid 175

Cf Craig and de Búrca (n 170) 265; Tridimas (n 153) 243, 467. Cf T Minssen and X Groussot, ‘Res Judicata in the Court of Justice Case-Law’ (2007) 3 European Constitutional Law Review 385–417 415 f. 176

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down. However, those differences are not necessarily the consequences of diverging approaches in deciding the idem or bis elements. That a residue requirement of adequate/effective sanctions could imply a reduced scope of application for ne bis in idem was discussed in sections 4 and 5. Another limiting factor can be found in the so called enforcement condition in Article 54 CISA. According to that condition, a prior final conviction and sentence will only preclude subsequent criminal proceedings in another Contracting State for the same acts, provided that the penalty in the first conviction has been enforced, is in the process of being enforced or can no longer be enforced under the laws of the Sentencing State. Since Article 50 of the Charter does not contain any enforcement condition, Article 54 CISA could possibly be viewed as a restriction of a fundamental right laid down in the Charter. In Spasic,177 the question was raised whether the enforcement condition fulfilled the requirements for a valid restriction of Charter rights, in accordance with Article 52(1) thereof. A somewhat more extensive account of that case seems therefore appropriate. The relevant circumstances were as follows.178 Mr Spasic had been prosecuted in Regensburg, Germany for organised fraud committed on 20 March 2009 in Milan, Italy. The victim was a German citizen. The fraudulent act consisted of delivering counterfeit EUR 500 banknotes in exchange for genuine banknotes of lower denominations. Mr Spasic was subject to an EAW and subsequently convicted on 26 August in Austria for similar acts. An EAW was issued on 5 March 2010 by the German authorities concerning the alleged fraud in Milan 2009. On 18 June 2012, the Tribnuale ordinario di Milano sentenced Mr Spasic in absentia while he was detained in Austria, to a custodial sentence and a fine of EUR 800 for the fraudulent offences committed on 20 March 2009 in Milan. That decision became final on 7 July 2012. The Austrian authorities surrendered Mr Spasic to the German authorities on 6 December 2013. Mr Spasic then brought an action before the Amtsgericht Regensburg, challenging the decision ordering his continued detention. Invoking the ne bis in idem principle, he claimed that prosecution in Germany was barred due to the final sentence from the Italian Court in Milan. However, the Amtsgericht Regensburg dismissed the action. By the time the appeal finally reached the Oberlandesgericht Nürnberg, Mr Spasic had paid the fine of EUR 800 by bank transfer. The Oberlandesgericht Nürnberg thus faced two questions, which it referred for a preliminary ruling. Firstly, it asked whether Article 54 CISA is compatible with Article 50 of the Charter, so far as the former provision includes an enforcement condition. Secondly, the referring Court asked whether that condition is fulfilled when one of two independent parts of a penalty

177 178

Case C-129/14 PPU Criminal proceedings against Zoran Spasic, EU:C:2014:586. ibid paras 29–40.

182 Magnus Gulliksson has been enforced. Since the replies by the CJEU and AG Jääskinen to the second question are quite consistent, but a notable divergence exists in their replies to the first question, particular attention will be paid to the latter. As the AG points out, the case revolves around the enforcement condition in Article 54 CISA, as both the idem and bis elements are met.179 However, the application of that enforcement condition can entail a restriction of Article 50 of the Charter, the scope of which determines the permissibility of such a restriction. The AG observed that the scope of Article 50 of the Charter has not been finally delineated in the case law of the CJEU.180 After an examination of existing codifications of the ne bis in idem principle in Union law and in Article 4, 7th Additional Protocol to the ECHR, the AG arrived at the core issue, namely whether the enforcement condition is incompatible with Article 50 of the Charter. The assessment of that issue was divided into several steps. The AG found that the slightly unclear wording of Article 50 of the Charter did not entail that the enforcement condition as such, with a literal interpretation, could be considered incompatible. With an ‘objective’ understanding of the term ‘limitation’ in Article 52(1) of the Charter, the AG found that the enforcement condition indeed was a limitation of Article 50 of the Charter. However, such a limitation could be accepted provided that three conditions are fulfilled pursuant to Article 52(1) of the Charter: Firstly, that it is provided for by law, secondly that the limitation respects the essence of the right at hand and finally, that subject to the principle of proportionality, the ‘limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’. Clearly, the first criterion is met as the enforcement condition is provided for by Article 54 CISA itself. On the second criterion, the AG with some hesitation concluded that the ne bis in idem principle at its core was respected by the enforcement condition.181 A deciding factor for that conclusions was the exclusion of transnational situations from the essence of the protection provided by ne bis in idem.182 Finally, considerable attention was given by the AG examining the enforcement condition against the proportionality requirement. From the outset, the enforcement condition in Article 54 CISA is intended to prevent the impunity of persons finally convicted and sentenced in a Member State. Being an objective 179

Opinion of AG Jääskinen in Case C-129/14 PPU Spasic (n 58) para 37. ibid para 38. On the issue whether the Charter applies to situations where Article 54 CISA is applicable, see BVerG NJW 2012, 1202 Rdn. 40. 181 ibid para 87. 182 This view can be questioned simply by observing that Union law purports to be its own legal order. A ‘cross-border’ situation characterised as such with respect to Member States fails to take the proper point of reference: The exclusion of transnational situations from a ‘inner core’ of the protection provided by ne bis in idem might be correct in the abstract, but fails to see that from a Union law perspective, the ‘cross-border’ issue arises with respect to third countries. 180

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recognized by the Union, it has the potential of restricting ne bis in idem laid down in Article 50 of the Charter, in particular the Erledigungsprinzip therein.183 On the issue whether application of the enforcement condition was made in order to attain that objective—ie prevent impunity—the AG set out to examine the reasons for the German authorities to prosecute Mr Spasic after the sentence issued by Tribunale di Milano. Two alternatives were identified by the AG.184 One reason for the prosecution could have been that German law provided for more severe penalties than those imposed by the Italian Court against Mr Spasic. That would not have been a proper application of the enforcement condition argued the AG, since according to Union law, harmonisation of criminal law is not required for application of the ne bis in idem principle. Furthermore, according to the principle of mutual trust, a Member State must accept outcomes which could be different from those had its own national law been applied.185 Only if the German authorities had feared that abstention from bringing criminal proceedings against Mr Spasic would result in his impunity, could such prosecution be viewed as seeking to attain the objective contained in the enforcement condition.186 However, even in such a case, the AG was not entirely convinced that the principle of mutual trust between Member States with respect to their respective penal systems was met.187 What eventually caused the AG to consider the enforcement condition not to fulfil the proportionality requirement in Article 52(1) of the Charter in general, was the lack of necessity to apply the enforcement condition in order to prevent impunity.188 As Union law nowadays contains several secondary law instruments which enable enforcement of penalties without causing as much interference as the enforcement condition and whereas those instruments provide for exchange of information,189 it would according to the AG go beyond what would be appropriate and necessary to systematically put individuals finally convicted and sentenced in double jeopardy.190 Furthermore, the AG considered Member States to have some discretion in deciding what measures should be employed to execute sentences deliverd by national courts, despite the principle that impunity should be prevented. Although the AG found that the enforcement condition did not in general fulfil the proportionality criterion in Article 52(1) of the Charter, certain

183

Cf Opinion of AG Jääskinen in Spasic (n 58), para 92. ibid para 93. 185 ibid para 94. 186 ibid para 95. 187 ibid para 96. 188 ibid para 103. 189 See Opinion of AG Jäskinen in Spasic (n 58) fn 85 and 86 for references to relevant secondary law. 190 ibid paras 100–101. 184

184 Magnus Gulliksson circumstances could justify the condition to be applied, thus allowing for successive criminal proceedings. According to the AG, this would be the case in three situations.191 Firstly, the enforcement condition of Article 54 CISA would apply in cases where Article 4(2) of Additional Protocol 7 to the ECHR is applicable, ie reopening of cases due to evidence of new or newly discovered facts or the existence of a fundamental defect in the previous proceedings which could have affected the outcome of the case. Secondly, subsequent proceedings should be permissible where the application of the ne bis in idem principle would lead to impunity in cases where public international law lays down obligations to punish certain acts, such as crimes against the humanity, genocide and war crimes. Thirdly, the enforcement condition should apply where there is a persistent obstacle to enforcement. In such a case, the AG left it for the referring Court to ascertain whether any such persistent obstacles existed. In conclusion, AG Jääskinen struck a balance between the protection provided by the ne bis in idem principle—particularly the Erledigungsprinzip—and the interest of effective enforcement of penalties. Whereas the protection is not absolute, as there are situations where subsequent criminal proceedings could be justified, a general application of the enforcement condition could according to AG Jääskinen no longer be maintained in light of the existence of other, less interfering instruments at the EU level. To a certain extent, the ruling by the Court corresponds to the analysis in the Opinion of the AG. In its reply to the first question referred by the Oberlandesgericht Nürnberg, the CJEU concluded that the enforcement condition laid down in Article 54 CISA is a limitation of the ne bis in idem principle that is compatible with Article 50 of the Charter.192 The Court observed that the enforcement condition is expressly mentioned in the Explanations to Article 52(1) of the Charter, which must be duly taken into consideration pursuant to Article 6(1) TEU and Article 52(7) of the Charter. Similar to the Opinion by AG Jääskinen, the Court set out to analyse whether the enforcement condition fulfilled the criteria laid down in Article 52(1) of the Charter, thus being a permissible limitation to fundamental rights in the sense of that Article.193 As in the Opinion by the AG, the Court found the requirement that a limitation must be provided for by law to be fulfilled.194 In assessing whether the enforcement condition respects the essence of the ne bis in idem principle, the Court also came to the same conclusion as the AG, albeit in a different manner. In fact, the Court seems to resort to circular reasoning when it first states that the enforcement condition does not call into question the ne bis in idem principle as 191 192 193 194

ibid paras 105–108. Spasic (n 177) paras 54–55. ibid paras 56–72. ibid para 57. The enforcement condition is laid down in Article 54 CISA itself.

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such, and then presumably as a justification, reiterates the intention of the enforcement condition (namely to prevent impunity).195 It is rather unclear how recalling that intention would justify the Court’s claim, as it merely underlines the intrinsic conflict between the interest of effective punishment and the interest to preclude multiple proceedings (the Erledigunsprinzip). What remains for the Court is a proportionality assessment, and it is here that the ruling of the Court departs from the Opnion of the AG. The Court starts the proportionality test pursuant to Article 52(1) of the Charter by referring to Article 3(2) TEU, painting a broad picture of a Union offering its citizen an area of freedom, security and justice.196 That objective includes providing for a high level of security through prevention of crimes and through eg measures for coordination and cooperation between police and judicial authorities, mutual recognition of judgments and if necessary, approximation of criminal laws.197 Against that backdrop, the Court found that: It cannot be contested that the execution condition laid down in Article 54 CISA is appropriate for attaining the objective pursued. By allowing, in cases of nonexecution of the sentence imposed, the authorities of one Contracting State to prosecute a person definitively convicted and sentenced by another Contracting State on the basis of the same acts, the risk that the person concerned would enjoy impunity by virtue of his leaving the territory of the State in which he was sentenced is avoided.198

There is of course a risk associated with framing a proportionality test this way. Against abstract and grandiose objectives like ‘an area of freedom, security and justice’, comparison with almost any individual right or interest in a particular case will stand out as insignificant and petty.199 Furthermore, one could challenge the Court’s finding that the risk of impunity would be avoided simply by allowing for prosecution in the second Contracting State in cases for non-execution. As long as discretion to prosecute does not imply an obligation thereof, the second Contracting State could simply choose not to instigate criminal proceedings. In such a case, impunity would still entail. As AG Jääskinen points out, some discretion must be left to the Member States in this regard.200

195 The Court refers to the observations submitted by the French and German governments without elaborating on details or laying out the arguments as to why the essence of the ne bis in idem principle is not called into question, cf Spasic (n 177) para 58. 196 Spasic (n 177) para 61. 197 ibid para 63. 198 ibid para 64. 199 The same issue can be observed in the field of targeted sanctions in international and Union law, cf eg T Andersson, I Cameron and K Nordback, ‘EU Blacklisting: The Renaissance of Imperial Power, but on a Global Scale’ [2003] 14(2) European Business Law Review 111–141, 126 f. 200 Opinion of AG Jääskinen in Spasic (n 58) para 102.

186 Magnus Gulliksson Like the AG, the Court took notice of the fact that there are numerous instruments on the EU level to promote and facilitate cooperation between Member States within the area of criminal law.201 However, the Court found that none of those instruments lays down an enforcement condition similar to Article 54 CISA, and is thus ‘not capable of fully achieving the objective pursued’ (emphasis added).202 Furthermore, according to the Court, use of the relevant Framework Decisions is subject to certain conditions and in the end, on a decision by the sentencing Member State. The options that those instruments offer the sentencing State ‘cannot ensure’ avoidance of impunity for a person finally convicted and sentenced in that State.203 It is difficult to escape the impression that the Court overemphasizes the importance of the enforcement condition in Article 54 CISA. First of all, it seems not entirely correct as the Court states in paragraph 68 of the judgment that ‘such instruments of mutual assitance’, presumably referring back to paragraph 67 which contains several Framwork Decisions, do not lay down an execution condition similar to that in Article 54 CISA. In fact, Article 3(2) of the FDEAW lays down the ne bis in idem principle as a mandatory ground for non-execution of an EAW. Non-execution of an EAW due to ne bis in idem is however subject to an enforcement condition almost verbatim to that in Article 54 CISA. Furthermore, the enforcement condition in Article 54 CISA is not a positive but a negative obligation. That is, the second state which has to take the final ruling of the sentencing Contracting State into consideration, is not under an obligation to prosecute due to lack of fulfilment of enforcement of the first sentence. That state merely has to ensure that the enforcement condition is fulfilled, should it in fact consider to apply Article 54 CISA. The enforcement condition in Article 54 CISA does only act to limit the scope of ne bis in idem, the latter being a principle which restricts the possibility to instigate subsequent criminal proceedings. As such, the enforcement condition is nothing more than a restriction of a restriction. The references of the Court to the enforcement condition aiming to ‘fully achieve’ the objective pursued or avoid the risk of impunity is thus not convincing and frankly, even misleading. Ultimately, the Court did not share the view held by the AG to adopt a balanced approach to the enforcement condition in Article 54 CISA.204 The ruling shows a rather anxious approach to avoid the risk of impunity, giving less weight to the

201 Spasic (n 177) paras 65–67. The Court refered to Framework Decision 2009/948/JHA (n 11); the FDEAW (n 11), Framework Decision 2005/214 (n 11) and Framework Decision 2008/909 (n 11). 202 Spasic (n 177) para 68. 203 ibid para 69. 204 As to the second question referred by the Oberlandesgericht Nürnberg, neither the AG nor the Court found that payment of the fine could be considered enforcement of the penalties or that the penalties was being enforces. See Opinion of AG Jääskinen in Spasic (n 58) paras 118, 121–122; Spasic (n 177) para 82.

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Erledigungsprinzip. Taken together with the ‘effectiveness approach’ to paragraph 36 in Åkerberg Fransson, the ruling in Spasic can be read as a priority given in Union law to effectiveness in punishment, both by ensuring effective penalties and minimizing impunity due to lack of enforcement. On this reading, the interest of the individual not to be tried more than once for the same act is given less weight in cases of conflict with effectiveness. While this stance may seem appealing from the perspective that it promotes the implementation of substantive Union law in general or the objective of an area of freedom, security and justice, it has several drawbacks. There is a risk that short term ‘effectiveness’ is traded for a long term lack of legitimacy. One example can serve to illustrate the problems and ambiguities that arise with an excessive focus on effectiveness. Consider the case where an individual has been convicted and finally sentenced in one Member State (MS 1), but enforcement of the penalties has not taken place. From the ruling in Spasic, it follows that a lack of enforcement of penalties imposed does not preclude prosecution with respect of the same acts in another Member State (MS 2). Suppose that criminal proceedings are initiated in MS 2, but the individual concerned is acquitted and the ruling in question becomes final. In such a case, there would be two final rulings on the same acts which would be contradictory.205 As such, that would not necessarily be problematic. The court in MS 1 has ruled on meaning and significance of the circumstances in accordance with the law of MS 1, whereas the court in MS 2 has made an assessment according to the law of MS 2. If there are contradictions between the outcomes, it is merely a reflection of the differences between the relevant law in MS 1 and MS 2 respectively. Each court ‘speaks the truth’ of the circumstances of the case with respect to the laws of its own jurisdiction.206 In a transnational context such as within an ‘Area of Freedom, Security and Justice’, this could however become problematic. Indeed, the case law developed on the idem element with respect to Article 54 CISA took particular issue with different legal qualifications of the same facts.207 The rationale for determining whether idem was at hand by examining the factual circumstances (which would be presumed ‘stable’ and not subject to differing interpretations) was to minimize the effects of a lack of harmonization in the area of criminal law. By promoting legitimate use of the freedom of movement, such an approach to the ne bis in idem principle has the effect to erase borders, thus creating legitimacy and relevance for the transnational legal order, namely Union law. Therefore,

205 See M Fletcher, R Lööf and B Gilmore, EU Criminal Law and Justice (Cheltenham, Edward Elgar Publishing, 2008) 136. 206 Cf J Lelieur, ‘Transnationalising Ne Bis In Idem: How the rule of Ne Bis In Idem Reveals the Principle of Personal Legal Certainty’ (2013) 9(4) Utrecht Law Review 198–210, 203 f. 207 See in particular van Esbroeck (n 7).

188 Magnus Gulliksson the existence of contradictory rulings, while a non-issue for the national legal orders, becomes a challenge for the legitimacy of Union law as a legal order. To what extent can something contain contradictions and different versions of ‘legal truths’ and still credibly lay claim to be considered as an order or system? Of course, one could object that the ne bis in idem principle is unsuitable for solving this dilemma.208 Not being a silver bullet, the ne bis idem principle can nonetheless contribute to the legitimacy of a legal system in the sense alluded to above. But that would require both that more emphasis is put on the Erledigungsprinzip and that some minimum level of awareness of the wider procedural implications is maintained with respect to the application of the ne bis in idem principle, effectiveness requirements and enforcement conditions in particular cases. Returning to our scenario, consider what could happen if the individual, now acquitted in MS 2 would move to a third Member State (MS 3). The authorities in MS 1 now issues an EAW. How should the authorities in MS 3 act? On the one hand, there is the final sentence underlying the EAW from MS 1 which has not been enforced. On the other hand, due to the interpretation of the enforcement condition in Spasic, the same act has been subject to criminal proceedings in MS 2 where the accused was finally acquitted. It is quite evident, that the root of this dilemma is an exaggerated emphasis on enforcement, and generally an anxiousness and tendency to give priority to punishment rather than coherence. It is submitted that this one-dimensional approach in fact can have long term negative implications for the legitimacy of Union law in the area of criminal (procedural) law.

CONCLUSION

There is no doubt that the principle of effective application of substantive Union law and its corollary, the requirement that sanctions are appropriate, both are cornerstones of Union law. As more detailed and specific legislation and case law emerges within Union law, particularly in fields of law previously dominated by the Member States, it will be crucial for the legitimacy of Union law to be able to provide coherent answers to the (new) legal questions it faces. This becomes all the more important if Union law aspires to be viewed as a legal system in and of itself. It may seem that a continued reliance on established doctrines, whether it be the conditions under which directives have direct effect or the Greek Maize criteria, would contribute to the unity and predictability of Union law and consequently also advance its legitimacy. However, concepts and locutions developed in the case law of the CJEU for other purposes and at earlier stages in the evolution of

208

Cf Lelieur (n 206) 204.

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Union law runs the risk of contributing to incoherence and contradictions when routinely applied to novel situations. To the extent that conflicts between the principle of effective application of substantive Union law and fundamental rights occur at the level of Union law, it is important that due attention is paid to the character of the fundamental right in question. Not all conflicts can be measured along the scale of proportionality and effectiveness. Such a one-dimensional approach risks to lose sight of other qualities of the fundamental rights concerned. In that regard, the ne bis in idem principle stands as a prime example. While the application of that principle certainly has the potential to limit the application of (effective) penalties, limiting its scope has not just the effect of finding a proper level for those penalties. The Erledigungsprinzip, being one aspect of the ne bis in idem principle, does not only protect the individual concerned from a second set of proceedings and possibly additional penalties. It also prevents contradictory rulings, which could have a damning effect on the legitimacy of the legal system in which it operates. But making the application of the Erledigungsprinzip conditional on an inflexible requirement of adequate/ effective penalties or an enforcement condition as in Article 54 CISA aimed to secure punishment of a sentenced individual, risks to create such contradictions not only between national legal orders or between the latter and Union law, but within Union law itself. Using an anxious and instrumental approach to effectiveness may further that objective short term, but may cause damage to the credibility of Union law and therefore also its long term effectiveness. Sometimes, less is more.

11 The Åkerberg Fransson Case Ne bis in idem: Double Procedures for Tax Surcharge and Tax Offences not Possible ULF BERNITZ*

T

HIS CHAPTER DISCUSSES the very important ruling issued by the Court of Justice of the European Union in the Åkerberg Fransson case1 about the Swedish vendace roe fisherman who was charged in criminal court proceedings with tax offences despite the fact that he had paid a tax surcharge for undeclared VAT. Sweden applied a policy of double procedures and sanctions in the area. The ruling of the Court of Justice, based on the ne bis in idem principle, ie the right not to be tried or punished twice for the same offence, as expressed in Article 50 of the EU Charter of Fundamental Rights (the Charter), caused the Swedish Supreme Court to radically change its practice of the law in a plenary ruling in June 2013. The emphasis in the Article lies on providing an account and analysis of the considerations of the Court of Justice in Åkerberg Fransson and the conclusions drawn from these considerations with regard to the scope and meaning of EU law and related ECHR (European Convention of Human Rights) law by the Swedish Supreme Court. In addition, the chapter discusses the impact the ruling of the Court of Justice might have had on taxes other than VAT and on being tried or punished twice in criminal proceedings in areas other than taxation. The legal issues highlight the intricate threefold relationship between Union law, ECHR law and national law.

THE U-TURN OF THE SWEDISH SUPREME COURT

It is recognized that the Swedish Supreme Court in two rulings in June and July 2013 based on the ne bis in idem principle made a U-turn as regards

* 1

Professor of European Law at Stockholm University. Case C-617/10 Hans Åkerberg Fransson, judgment of 26 February 2013, ECR 2013:105.

192 Ulf Bernitz the approach to imposing a tax surcharge on a person and prosecuting the same person for a tax offence in different legal proceedings.2 In the first ruling, a unanimous plenary ruling in June 2013,3 the Supreme Court found that the long used Swedish double sanction system (tax surcharge and criminal sentence) applying two different legal procedures for providing false information in a tax return was not compatible with the ne bis in idem principle. As will be explained, it is evident that this important change in the Swedish legal position was brought about by the decision of the Court of Justice in the Åkerberg Fransson case. Thereafter, in a follow-up ruling in July 2013,4 the Supreme Court established that as a consequence of the change in the law a person has the right to a new trial if he or she has paid a tax surcharge and in addition been sentenced in a criminal procedure for tax offences. The Supreme Court set the break-off point for the right to use this extraordinary legal remedy to the 10 February 2009. That was the date when the European Court of Human Rights (ECtHR) issued its seminal judgment in the Zolotukhin case.5 In short, Zolotukhin clarified the ne bis in idem principle in ECHR law which prohibits a new prosecution or trial of an offence in so far as it arises from identical facts or substantially the same facts as the first offence already prosecuted or tried. I will revert to the Zolotukhin case in the following.6 The two rulings by the Supreme Court very quickly proved to have dramatic practical importance. In the following months, a substantial number of persons were released from prison where they were serving sentences for tax offences and many ongoing tax offence prosecutions were terminated. In all these cases the persons had had to pay a tax surcharge. 2 The literature on the subject is becoming comprehensive. See an English case comment on Åkerberg Fransson by E Hancox in (2013) Common Market Law Review 1411 ff; D Sarmiento, ‘Who’s Afraid of the Charter?’ (2013) Common Market Law Review 1267 ff; S Peers et al (eds), The EU Charter of Fundamental Rights. A Commentary (Oxford, 2014) 1385 ff, 1419 ff; C Brokelind, ‘Case Note on Åkerberg Fransson (Case C-617/10)’ (2013) 53 European Taxation 6, on the general background; B Van Bockel, ‘The Ne Bis in Idem Principle in EU Law’ (2010) Kluwer NL; A-I Kargopoulos, ‘Ne bis in idem in Criminal Proceedings, Swedish Studies in European Law’ in M Bergström and A Jonsson Cornell, European Police and Criminal Law Co-operation (Oxford, Hart Publishing 2014) vol 5, 85 ff. In Swedish, U Bernitz, Åkerberg Fransson-domen (Skattenytt, 2013) 584 ff; Förstärkt genomslag för europarätten— både unionsrättsligt och konventionsrättsligt (2013) Europarättslig Tidskrift (ERT) 413 ff; K Fast, ‘Dubbelbestraffningsförbudet i EU:s rättighetsstadga och det svenska systemet med skattetillägg och skattebrott (2013) Svensk Skattetidning (Translation: ‘The prohibition against punishing a person twice for the same offence stipulated in the Charter and the Swedish system of tax surcharge and tax offences’) (2013) Swedish Tax Journal) 138ff; M Gulliksson, ‘Klart till halvklart—om ne bis in idem och skattetilläggen’ (2013) Svensk Juristtidning (SvJT) s 645 ff; D Ritleng, ‘Lärdomar av EU-domstolens parallella domar i målen Åkerberg Fransson och Melloni’ (2014) Svensk Juristtidning (SvJT) 36 ff. Thanks to Cécile Brokelind for valuable comments. 3 NJA (Nytt Juridiskt Arkiv) 2013, 502 (the Supreme Court’s publication of decisions). 4 NJA 2013, 746. 5 Sergey Zolotukhin v Russia (App no 14939/03) judgment 10 February 2009. 6 See section entitled ‘What Constitutes Ne Bis in Idem and Sanctions of a Criminal Nature?’.

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It is necessary to inform briefly about the background to understand the importance of these developments. The issue whether it was legally possible under ECHR law to apply separate legal proceedings for tax surcharge and tax offences based on the same information in a tax return had been debated in legal circles in Sweden for a long time. In 2002, the ECtHR had concluded in two cases that the Swedish system with tax surcharges was criminal in nature.7 However, the decisions by the ECtHR did not cause the legislator to alter the Swedish legislation, neither did the courts change their practice. Obviously, the legislator wanted the taxation system to be enforced by sharp sanctions, Sweden being a country with high taxes. However, the sharpened definition of what constitutes ne bis in idem in the Zolotukhin judgment in 2009 made the problem acute. The Supreme Court ruled on the matter in two new decisions in 2010 and 2011. In the 2010 decision, which focused on the ECHR law, the majority of the justices took the view that the Zolotukhin judgment did not give ‘clear support’ to the need to change Swedish practice.8 The Supreme Administrative Court had taken the same position already in 2009.9 In the 2011 case,10 the defendant invoked in particular the ne bis in idem principle in Article 50 of the Charter. The case dealt partly with tax surcharges for undeclared VAT. A Supreme Court majority, three Supreme Court justices, concluded that the Swedish legal provisions on tax offences and tax surcharges lay outside the scope of the Charter, thus a preliminary ruling was not required. Two dissenting justices took a different view and concluded with comprehensive reasons adduced that the legal position was not clear as regards the possible applicability of the Charter and that a preliminary ruling should be requested. In reality, the Supreme Court voted on whether a preliminary ruling should be requested by the Court of Justice or not. As is well-known, according to Article 267 TFEU (Treaty on the Functioning of the European Union), the highest instance is obliged to request a preliminary ruling if a case pertains to EU law, unless the legal position is clear (acte clair). Obviously, the Supreme Court did not observe that obligation, in particular as the Court of Justice at that time had not clarified its position on the scope of the Charter. In its Åkerberg Fransson judgment the Court of Justice found it necessary to include a reminder— obviously addressed to the Supreme Court—about the duty to observe Article 267 TFEU as interpreted in the CILFIT case.11 7 Janosevic v Sweden (App no 34619/97) and Västberga Taxi and Vulk v Sweden (App no 36985/97). 8 NJA 2010, 168. 9 RÅ (Regeringsrättens Årsbok) 2009 ref. 94 (The Supreme Administrative Court’s publication of decisions). 10 NJA 2011, 444. 11 Case 283/81 CILFIT and Others [1982] ECR 3415, para 47 in the Åkerberg Fransson judgment (n 1).

194 Ulf Bernitz In Sweden, decisions taken by the Supreme Court are not formally binding on judges in lower courts but are practically always observed and followed. However, in this case, some judges in lower courts found the position taken by the Supreme Court clearly wrong and refused to follow it. This much observed ‘revolt’ among Swedish judges forms an important part of the background to the Åkerberg Fransson case in which a district court judge in a small town decided to call into question the established Swedish system by asking the Court of Justice for a preliminary ruling.12

THE ÅKERBERG FRANSSON CASE: THE FACTS

When looking at the actual circumstances and the legal process in Åkerberg Fransson, the proverb ‘the straw that broke the camel’s back’ springs to mind. Hans Åkerberg Fransson was a self-employed fisherman with only one fishing boat which he managed himself. He did not have a limited company, instead he ran his financial activities as a sole trader. He was therefore personally responsible for paying tax on his income from his fishing business and paying VAT on that income. He fished vendace (coregonus albula) in the Gulf of Bothnia, primarily far north in Sweden at the mouth of the Kalix River. Vendace is full of valuable roe, Kalix löjrom (vendace roe), which is an expensive delicacy and also enjoys a protected designation of origin in the EU. Mr Åkerberg Fransson had sold Kalix löjrom to buyers in Sweden, primarily first class restaurants. His business operations lacked almost entirely any cross border aspects (according to one receipt, however, he had sold a smaller amount of eviscerated vendace as mink feed in Finland). The origins of the case were that the Swedish Tax Agency scrutinized the tax returns and the book-keeping of Mr Åkerberg Fransson. The Tax Agency made the assessment that there were substantial deficiencies in the book-keeping when it came to the sale of roe and decided to increase Mr Åkerberg Fransson’s declared income and declared VAT for 2004 and 2005. Based on a discretionary assessment, the Tax Agency decided to increase his taxable income by approximately SEK 500 000 and the VAT payable by approximately SEK 150 000 (ca € 17 000). The Tax Agency also decided to charge a tax surcharge as the tax returns were found unsatisfactory. For the income part the surcharge was 40 per cent and for the VAT part 15 per cent. Mr Åkerberg Fransson did not appeal the Tax Agency’s decision. When the case was being considered by the Court of Justice, the tax surcharge had been paid and gained legal force.

12 See in particular O Zetterquist, Strasbourg, Luxembourg—We Have a Problem— Reflektioner om ett litet HD-uppror, Festskrift till Pär Hallström (Reflections on a Minor Supreme Court Rebellion, Festschrift in Honour of Pär Hallström) (Uppsala, Iustus, 2012) 353 ff.

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Despite the fact that Mr Åkerberg Fransson had been ordered to pay a tax surcharge, he was summoned to appear before Haparanda tingsrätt (Haparanda District Court) in 2009 on charges of serious tax offences. Given the circumstances, he was facing the risk of an imprisonment sentence of approximately six to eight months. The counsel for the defence pleaded that the case should be rejected with reference to the ne bis in idem principle. In December 2010, the District Court decided to stay the proceedings and request a preliminary ruling from the Court of Justice with regard to whether the Swedish policy of double procedures and sanctions could be regarded as being compatible with the prohibition against ne bis in idem in Article 50 of the Charter. In its request to the Court of Justice, the District Court stressed in particular that the tax surcharge partly concerned VAT.13 As is well known, the Charter came into force as legally binding European Union law on 1 December 2009 as part of the Lisbon Treaty and that the Charter holds the same status as the EU Treaties, in other words it is positioned at the highest legal level.

THE CARTESIO PRINCIPLE AND THE PROSECUTOR’S EFFORTS TO STOP THE CASE

Before dealing with the decision by the Court of Justice in Åkerberg Fransson, some words should be said about a particular aspect of the case, namely the efforts by the Public Prosecutor to stop the case from being tried in Luxembourg. In an effort to ‘silence’ the Haparanda District Court, the Prosecutor appealed the decision to stay of proceedings while waiting for the decision by the Court of Justice to the Court of Appeal on the grounds that the case was being delayed unnecessarily. However, the Court of Appeal rightly rejected the Prosecutor’s request by referring to the case law of the Court of Justice.14 The Court of Appeal gave these legal grounds: Article 267 of the TFEU gives every national court the right to request a preliminary ruling from the Court of Justice on issues dealing with the interpretation or validity of Community law. It is not the concern of the Court of Appeal, or any 13 The decision by the Supreme Court majority not to refer a similar case to the Court of Justice, NJA 2011, 444, mentioned in the section entitled ‘The U-Turn of the Swedish Supreme Court’ above, was handed down approximately six months later. For some reason, the referral of the Åkerberg Fransson case already being considered by the Court of Justice, was not mentioned in the Supreme Court ruling. 14 Final Decision by Hovrätten för Övre Norrland in Case Ö-496-11, 1 September 2001. The decision by the Court of Appeal has been published and commented upon by U Bernitz, ‘Högre instans får inte stoppa en lägre instans begäran om förhandsavgörande av EU-domstolen’ (Translation: ‘A court of the higher instances may not prevent a court of the lower instance from requesting a preliminary ruling from the Court of Justice’) (2012) Europarättslig tidskrift 91 ff.

196 Ulf Bernitz other national court, to revoke a request for a preliminary ruling and order the court that has decided to request a preliminary ruling to resume proceedings that have been stayed in accordance with national law, since such a decision would restrict the possibility of requesting a preliminary ruling provided by Article 267 TFEU (see the judgement of the Court of Justice (Grand Chamber) of 16th December 2008, case C-210/06, para. 95-98).15 In the case at hand, the Prosecutor has not appealed the actual decision to request a preliminary ruling, only the decision to stay the proceedings due to the decision to request a preliminary ruling. Since the District Court has a discretionary right to request a preliminary ruling, the Court of Appeal should therefore not limit the District Court’s possibility to stay the proceedings in anticipation of the preliminary ruling, since such a decision would limit the right provided the District Court by Article 267 TFEU. This should in any case apply in cases for which a preliminary ruling has been requested. Therefore the Court of Appeal shares the view of the District Court that the proceedings should be stayed in anticipation of the requested preliminary ruling. The Court of Appeal thus rejects the appeal.

The Court of Appeal added that its decision regarding a stay of proceedings in accordance with Chapter 54, section 8 of the Swedish Code of Judicial Procedure may not be appealed. The Court of Justice judgment in the Cartesio case, referred to by the Court of Appeal, indicates that the Court of Justice concludes that it is important that each national court has the opportunity to decide independently and autonomously whether it finds that there is a need to request a preliminary ruling from the Court of Justice. The Cartesio judgment makes it clear that EU law does not accept that national courts of the higher instance, when issuing a ruling on an appeal, try to ‘censor’ a decision made by a court of the lower instance with regard to requesting a preliminary ruling. This applies even if the court of the higher instance takes the view that the decision made by the court of the lower instance is unjustified or would lead to an unwarranted delay in proceedings. The developments in the Åkerberg Fransson case illustrate quite well the importance of the Cartesio principle as established by the Court of Justice in securing the independence of the national court requesting a preliminary ruling.16

THE DECISION BY THE COURT OF JUSTICE ON THE SCOPE OF ARTICLE 51.1 OF THE CHARTER

Åkerberg Fransson proved to be a very important case and was referred to the Grand Chamber (small plenary); 11 judges participated in the ruling

15

Case 201/06 Cartesio REG 2008 I-9641. See M Broberg and N Fenger, ‘Preliminary References as a Right: But for Whom? The Extent to which Preliminary Reference Decisions can be Subject to Appeal’ (2011) European Law Review 276 ff. 16

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presided by the President and Vice-President of the Court. The Member States took a restrictive view in their written observations and at the oral hearing based on the idea of tax sovereignty. Seven states supported the position of the Swedish Government that the Charter was not applicable as the case was about the application of tax law. More concretely it was added that the sanctions for failing to declare VAT correctly should be regarded as lying outside the remit of EU law since the EU VAT Directive17 lacks detailed rules regarding how these sanctions should be designed. Only one Member State, Austria, took a different position and stressed the ne bis in idem principle should be observed. Counsel for Mr Åkerberg Fransson particularly stressed that the main freedom of Member States to determine sanctions with regard to upholding the system for paying VAT could not be allowed to include the freedom to disregard the ne bis in idem principle as stipulated in the EU Charter and instead must be kept within its framework. The questions that were asked during the oral hearing by the Rapporteur, the Polish judge Safjan, and by Vice-President Lenaerts showed that the Court of Justice was particularly interested in that aspect. The crucial point in the case is primarily the scope of the Charter. According to Article 51.1 of the Charter, it is only applicable to the legal systems of the Member States when the Member States ‘are implementing Union law’. This Article shall be read in conjunction with Article 6.1 in the TEU (Treaty on European Union) which states the Charter ‘shall not extend in any way the competences of the Union’. The Court found these provisions mean that the applicability of the Charter is connected to the scope of Union law. It held the fundamental rights are applicable in all situations governed by Union law, but not outside such situations.18 On this point one should observe there is a certain ambiguity between language versions. While the English version talks in Article 51.1 of the Charter about ‘implementing Union law’, the Swedish version uses the expression ‘tillämpa’ Union law which best translates as ‘apply’ Union law. The Åkerberg Fransson judgment seems to make clear that the Court of Justice understands implementation of Union law to mean application of Union law.19 In the legal argumentation in the case, a narrow view of what was meant by ‘implementation’ of a directive was put forward by several parties involved, but the Court decided in favour of a broad understanding of the scope of the Charter. Thus, all situations governed by Union law are covered by the protection of fundamental rights guaranteed by the Charter but not situations lying outside the scope of Union law. The Court of Justice has referred to its statements on the scope of Article 51.1 of the Charter in

17 18 19

Council Directive 2006/112/EC of 28 November 2006. Åkerberg Fransson (n 1) paras 19, 20 and 21. See S Peers et al (n 2) 1385.

198 Ulf Bernitz Åkerberg Fransson in several later cases and today it constitutes well settled EU law.20 What does that mean in relation to VAT? On the one hand, VAT legislation in the Member States, Sweden included, is based primarily on the comprehensive VAT Directive.21 On the other hand, the VAT Directive does not contain any detailed provisions about what sanctions shall be applied in the Member States when business firms do not declare VAT correctly. The Court noted in particular that the VAT Directive contains provisions stating that every Member State is under an obligation to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on its territory and for preventing evasion.22 The Court also emphasized that efficient VAT collection is important for the Union’s own financial interests given that VAT revenue forms part of the Union’s own resources. The Court found that penalties such as tax surcharges and prosecution for a tax offence constitute implementation of the VAT Directive and therefore of EU law. Hence the Court found the provisions of the Charter to be applicable on the design of the VAT sanction systems in the Member States. Member States must therefore abide by the Charter when they design sanctions to implement material provisions that have been established in directives adopted by the European Union. On this point, a very significant legal principle has been clarified as a result of the Åkerberg Fransson judgment.23 Clearly, the judgment clearly went against the ruling of the Swedish Supreme Court in 201124 with regard to the main issue. The Court of Justice has undoubtedly settled on a relatively extensive interpretation of what constitutes Member State ‘implementation of union law’, but it is clear that it does not lack support in previous case law.25 It is worth mentioning that the VAT Directive explicitly stipulates an obligation on business operators to declare and pay VAT correctly. Member States have a certain amount of room for manoeuvre as regards the design of procedures and penalties to ensure the collection of VAT but they also have an obligation to observe the legal principles of EU law. These include inter alia the principle of effectiveness, the principle of cooperation and the proportionality principle. In earlier case law, we can refer to three cases

20

See, eg, Case C-390/12 Pfleger, judgment of 30 April 2014 paras 31–34. EU VAT Directive (n 17). 22 Åkerberg Fransson (n 1) para 25. 23 The comprehensive Opinion in the case by Advocate General Cruz Villalón will not be discussed here. He took a more cautious view. His Opinion is interesting but was not followed by the Court and does not seem entirely coherent. 24 Discussed in the section entitled ‘The U-turn of the Swedish Supreme Court’, case NJA 2011 (n 10), 444. 25 See Åkerberg Fransson (n 1) paras 25 and 26. 21

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in particular, Louloudakis26 regarding punitive import provisions, The Commission v Italy27 regarding a ‘VAT amnesty’ and Profaktor Kulesza28 regarding reduction of the extent of the right to deduct VAT. In para 29 of the last-mentioned case, the Court of Justice points out that Member States are empowered to choose the sanctions which seem to them to be appropriate but must, however, exercise that power in accordance with EU law and its general principles, and consequently in accordance with the principle of proportionality. In light of that statement the outcome in Åkerberg Fransson should not be surprising. The judgment in Åkerberg Fransson was issued on the same day as the judgment in Melloni.29 In this high-profile judgment, the Court of Justice established that the European Arrest Warrant Regulations regarding extradition to another Member State for criminal prosecution would take precedence over the conflicting rules adopted in the Spanish Constitution. The primacy of European Union law could not have been established more clearly. However, the Court made an important distinction between Melloni and Åkerberg Fransson. While it found the situation in Melloni to be entirely determined by EU law, it noted this was not the case with regard to Åkerberg Fransson as much of the implementation was left to the national level. It stressed that in such situations national standards may not compromise the level of protection provided for by the Charter or the primacy, unity and effectiveness of European Union law. However, national authorities and courts remain free to apply national standards of protection of fundamental rights provided that the level of protection provided for by the Charter as interpreted by the Court of Justice and the primacy, unity and effectiveness of Union law is observed and not compromised.30 In other words, Sweden and other Member States are free to apply higher fundamental rights standards in relation to the enforcement of, for example, tax law. The distinction is important from the viewpoint of constitutional law principles but has had no relevance, so far, with regard to the legal situation in Sweden.

26

Case C-262/99 Paraskeva Louloudakis v Elliniko Dimosio ECR 2001 I-5547. Case C-132/06 The Commission v Italy ECR 2008 I-5457. 28 Case C-188/09 Profaktor Kulesza et al ECR 2010 I-7639. 29 Case C-399/11 Stefano Melloni v Ministerio Fiscal, judgment of 26 February 2013, ECR 2013:107. 30 Åkerberg Fransson (n 1) para 29. D Sarmiento (n 2) 1267 ff at 1294 ff; S Peers et al (n 2) 1419. 27

200 Ulf Bernitz WHAT CONSTITUTES NE BIS IN IDEM AND SANCTIONS OF A CRIMINAL NATURE?

The ne bis in idem principle in Article 50 of the EU Charter has the title ‘Right not to be tried or punished twice in criminal proceedings for the same criminal offence’ and reads: No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.

There is a very similar provision on ne bis in idem in Article 4 in Protocol No 7 to the ECHR which also prohibits a person from being tried or punished twice in criminal proceedings for the same crime.31 The guaranteed right has the same meaning and the same scope in the Charter as the corresponding right in the ECHR. Article 50 of the Charter is intended to be interpreted in the same way as the ECHR Article according to what has been stated in the Explanations regarding the Charter of Fundamental Rights32 which shall be considered for guidance when courts apply the Charter.33 Ne bis in idem was, moreover, a well-established general principle in EU law even before the Charter entered into force, applied inter alia in judgments regarding the Schengen Agreement.34 In a competition law setting the ne bis in idem principle was much observed in the Toshiba case.35 Ne bis in idem is a good example of an area where we have two parallel European instruments for the protection of fundamental rights. There are two important differences between the Charter and the ECHR provisions that must be stressed, however. The first one is of principal importance even if it did not come into question when the Swedish tax surcharge case was being considered. While the Article in the ECHR applies to a prohibition against charging a person again for the same offence ‘in the same state’, Article 50 of the Charter has a much broader geographical scope through a prohibition against charging the same person again ‘in the Union’, in other words it also prohibits charging a person again in another EU Member State.

31 The ECHR text reads: ‘No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.’ 32 EUT 2007/C 303/02 from 14th December 2007. 33 Article 52, p 7 of the Charter. 34 See B Van Bockel (n 2). 35 Case C-17/10 Toshiba, decided 14 February 2012; see W Devroe, ‘How General should General Principles be? Ne Bis in Idem in EU Competition Law’ in U Bernitz, X Groussot and F Schulyok (eds), General Principles of EU Law and European Private Law (Alphen aan den Rijn Kluwer Law, 2013) 401 ff.

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The second more pertinent difference has to do with the actual scope. While the ECHR is applicable in relation to any person who is in a country which is a signatory to the Convention, the Charter as discussed above36 is applicable to the legal systems of the Member States ‘only when they are implementing Union law’ (Article 51.1 of the Charter). It is not the purpose of the Charter to extend the competences of the EU, as also stated in Article 6.1 TEU. The ne bis in idem principle does not only apply to the right not to be convicted twice for the same breach of law, it also applies to the right not to be tried twice. For a person who has been charged with a tax surcharge which is criminal in nature, the ne bis in idem principle includes the right not to be tried for the same offence in court and thus it is not just a matter of the right not to be punished for the offence. On the other hand, the protection of rights foreseen by the ne bis in idem principle is not sufficiently met if a court, when determining the severity of a penalty in a subsequent judgment on a tax offence, takes certain consideration of the fact that the person in question has already been ordered to pay a surcharge by the tax authorities or by an administrative court related to the same offence. This is important since, in the discussions that have ensued in Sweden, one has often heard the erroneous opinion that an assessment of proportionality when determining a penalty is enough to meet the protection of rights under the ne bis in idem principle. In 2009, when the Swedish Supreme Administrative Court accepted the two separate procedures in the previous Swedish system, the Court unfortunately referred to the fact that an assessment of proportionality could be made.37 The ne bis in idem principle does not on the other hand constitute an obstacle for applying a combination of a sanction fee, for example, a tax surcharge, and a personal criminal sanction of the usual kind, for example a fine or prison sentence, when determining the sanction within the framework of one and the same procedure.38 This would seem to be the reasonable route to take when the Swedish legislation is going to be amended. This can be done if the court that must decide whether to sentence a person who is being tried for a tax offence or not, also decides whether a tax surcharge should be levied. As already touched upon,39 the ECtHR gave the right of a person not to be tried or punished twice for the same offence an amended and more exact content in its very important Zolotukhin judgment of 10 February 2009.40

36 See section entitled ‘The Decision by the Court of Justice on the Scope of Article 51.1 of the Charter’. 37 RÅ 2009 ref 94. 38 Cf Åkerberg Fransson (n 1) para 34. 39 In section entitled, ‘The U-turn of the Swedish Supreme Court’ above. 40 Zolotukhin v Russia (n 5).

202 Ulf Bernitz In this Grand Chamber Decision, the ECtHR reconsidered its case law in the field. It concluded that the ne bis in idem principle must be understood as prohibiting the prosecution or trial of a second ‘offence’ in so far as it arises from identical facts or facts which are substantially the same. It is in other words the identity of the offence that is decisive. The judgment in the Zolotukhin case has been followed by several subsequent judgments, where the same position was expressed. One of these cases is the Ruotsalainen v Finland case from 2009.41 The Ruotsalainen case dealt with a situation where a person, who had filled his vehicle with a banned type of fuel, was first ordered to pay a fine and was subsequently charged an administrative sanction fee for the same offence; in other words a situation with evident similarities to the combination penalty for a tax offence and tax surcharge. The Court of Justice found that the VAT Directive, as a part of EU law, also had an impact on the design of the VAT sanction systems in the Member States. It established that the ne bis in idem principle, as stipulated in Article 50 of the Charter, prohibits a Member State from applying two separate procedures for tax surcharges and penalties, provided that the tax surcharge is criminal in nature.42 Whether that was so in the Åkerberg Fransson case was, according to the Court, for the national court to determine based on the legal principles the Court had expressed. The Court of Justice has in its judgments often expressly referred to judgments issued by the ECtHR in Strasbourg and it is a well-known fact that the two courts have mutual contacts. One question that has arisen in the discussions is why the Åkerberg Fransson judgment does not include an express reference to the rulings of the ECtHR regarding ne bis in idem, something that was included in the Opinion of the Advocate General. It must be noted, however, that the Court of Justice in its ruling in the Åkerberg Fransson case expressly referred to its own ruling in the Bonda case43 to determine whether a tax surcharge is criminal in nature or not. The Bonda case referred to the three ‘Engel criteria’ established by the ECtHR44 to assess whether administrative penalties are to be criminal in nature and thus affected by the Zolotukhin ruling. The Court of Justice linked the assessment as to whether a tax surcharge is criminal in nature to the practice of the ECtHR, albeit not directly but in a rather indirect fashion. An explanation for why the Court of Justice worded its judgment in this way may be that it wished to avoid going into issues regarding reservations

41

Ruotsalainen v Finland (App no 13079/03) judgement of 13 July 2003. Åkerberg Fransson (n 1) para 37. 43 Case C-489/10 Bonda, judgment of 5 June 2012, para 35 in Åkerberg Fransson (n 1). 44 Engel and Others v The Netherlands (App nos 5100/71, 5101/71, 5102/71, 5354/72, 5370/72) judgment of 8 June 1976. 42

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to the ECHR. As regards the ECHR, as already mentioned, the ne bis in idem principle is included in Protocol No 7 to the Convention. Some of the Member States of the EU have, however, not ratified this Protocol or have, in conjunction with ratification, issued a reservation with regard to the application of Article 4 in Protocol No 7.45 This does not, however, apply to Sweden which has ratified Protocol No 7 without reservations.46 The EU Charter, on the other hand, has been ratified in its entirety by all Member States, where it has been included as part of the Member States’ ratification of the Lisbon Treaty. In this process there has been no room for Member State reservations or declarations related to specific articles. A Protocol has, however, been appended to the Lisbon Treaty where two Member States, the UK and Poland, have issued a special statement on how the Charter is to be applied in these two states. There is no such Protocol as far as Sweden is concerned.47 As regards Sweden, the country is fully bound by both the Charter and the European Convention’s ne bis in idem provision. Sweden is obliged to observe the requirements that are the consequence of both instruments which in practice gives precedence to the instrument whose requirements are the most encompassing in one certain respect. What is today the value of the reservations made by same EU Member States in relation to the ne bis in idem provision in the ECHR? In fact, as far as the Charter is overlapping, the reservations seem to have lost their importance. On the other hand, the Charter has been agreed and ratified, Article 50 included, by all the Member States. There are important differences regarding the constitutional position of the two European rights instruments in Sweden. The Charter has, as already mentioned, the same status as the EU Treaties and has thus primacy over Swedish national law, while the ECHR has been incorporated into Swedish law having, in principle, the same status as a statute enacted by the Swedish Parliament. However, there is a special provision in Chapter 2, para 19 of the Swedish Constitution (the Instrument of Government) stating that legislation must not be enacted which is contrary to Sweden’s obligations under the ECHR. This provision gives the ECHR a kind of quasi-constitutional position of a somewhat unclear character. In its request for a preliminary ruling in Åkerberg Fransson, the District Court brought up the issue whether the requirement ‘clear support’, which the Supreme Court had applied in relation to the ECHR,48 has an equivalent 45 Protocol No 7 has not been ratified by Germany, the Netherlands and the United Kingdom. There are reservations from four EU Member States, see S Peers et al (n 2) 1381. 46 Government Bill to Parliament 1984/85:123. The Bill states Swedish legislation is in full conformity with the ne bis in idem Article, 10, a somewhat questionable statement. 47 Sweden has ratified the Lisbon Treaty including the Charter based on Government Bill 2007/08:168. The Bill does not include any more detailed analysis of the Charter. 48 In the case NJA 2010 (n 8) 168, discussed in section entitled ‘The U-turn of the Swedish Supreme Court’ above.

204 Ulf Bernitz in the Charter. The Court of Justice gave a firm negative reply to this question.49 The Court explained that the national court is under a duty to give full effect to the EU provisions, if necessary refusing by its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the Court to request or await the prior setting aside of such a national provision. This is fully in line with the established practice of the Court of Justice. A discussion took place in Sweden prior to the plenary ruling of the Supreme Court in June 2013 concerning the Court of Justice’s statement in the Åkerberg Fransson judgment (para 37) that Article 50 in the Charter does not preclude the successive imposition of a tax surcharge and a criminal penalty provided that the surcharge is not criminal in nature. Indeed, according to the final sentence of para 34 of the judgment, the opposite applied if the tax surcharge is criminal in nature. The Court of Justice explained that it is a matter for the national court to determine whether this is the case. As has been ascertained above in this section, the Court of Justice had linked the issue of whether tax surcharges are criminal in nature to its own case law by referring to its judgment in the Bonda case.50 However, the Court of Justice did not mention in its decision that the ECtHR had already found the Swedish tax surcharge to be of a criminal nature.51 The Swedish language version of the Åkerberg Fransson judgment, essentially a translation, could potentially be interpreted to mean that the Court of Justice had stated that Haparanda District Court had to perform an independent assessment of whether the tax surcharge was of a criminal nature. However, the Court corrected the Swedish text version of the judgment in a special ordinance,52 an unusual measure. The revised text made clear that it was up to the District Court to decide whether there was reason to assess if the tax surcharge was of a criminal nature. On this point, one has to consider the fact that the Court of Justice delivered a preliminary ruling and that in such cases it is always a matter for the national court to pass judgment in each individual case based on what the Court of Justice has stated and in light of national circumstances, of which the Court of Justice cannot have the same in-depth knowledge as the national court. We should also consider the fact that the Court of Justice’s statements in the Åkerberg Fransson case are intended to be read and serve as guidance for legislation and application of the law in now all 28 Member States. The actual circumstances as regards the meaning of a tax penalty and a combination of penalties implied can naturally vary considerably and result in a penalty in certain cases not actually being criminal in nature. This seems 49 50 51 52

Åkerberg Fransson (n 1) para 45. Bonda (n 43) para 35. See section entitled ‘The U-turn of the Swedish Supreme Court’ above. Of 7 May 2013.

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to be a reason for the Court of Justice’s observation that it would be for the national court to determine the criminal character of the tax surcharge. Examples of varying circumstances in a Member State to be considered would include: a penalty seldom being applied by courts or authorities in practice; the legislation being worded so that it is easy to avoid the penalty; the amounts to be paid when the penalty is applied being only negligible; or that the penalty is really only a reasonable charge for late payment. In its plenary ruling in June 2013 and referring to its previous standpoints, the Swedish Supreme Court clearly adopted the position that Swedish tax surcharges are criminal in nature.53 In other words, the Supreme Court followed the approach developed in European law by the Strasbourg and Luxembourg courts.

THE IMPACT OF ÅKERBERG FRANSSON IN AREAS OTHER THAN VAT, WITHIN AND OUTSIDE TAX LAW

In Åkerberg Fransson, the Court of Justice only studied the part of the case that concerned tax surcharges and criminal charges for undeclared VAT. The Court refrained from answering the questions from the Swedish Court relating to the double proceedings and charges in relation to the undeclared income tax. In the follow-up case in the Swedish Supreme Court in June 2013, mentioned in the section entitled ‘The U-turn of the Swedish Supreme Court’ above, where the facts were basically similar, the Prosecutor-General was of the opinion that importance should only be attached to the Court of Justice’s ruling regarding the issue of failure to declare VAT and not regarding the failure to declare other tax, primarily income tax. The Prosecutor-General felt that the Court of Justice had based its ruling on the connection between VAT and EU law and only expressed an opinion on VAT assessment. The Supreme Court chose to see the legal issues differently, however. The Supreme Court ascertained that, because the right laid down in the Charter not to be tried or punished twice covers VAT, the collective Swedish system of tax surcharges and prosecution for tax offences had essentially been undermined. As the Supreme Court stated in its judgment, only upholding in case law certain parts of a system that is intended to be connected would result in a perplexing set of rules and in certain cases discrepancies in the reaction to similar breaches of the rules that were difficult to explain. The Supreme Court also pointed out that the developments in the case law of the ECtHR, in particular the Zolotuchin Decision, had not led to such legislative measures by the Swedish legislator that could have been expected.54 53 54

See para 36 of the Decision in particular. Para 58 in the Supreme Court’s decision, NJA 2013, 502.

206 Ulf Bernitz The Supreme Court’s conclusion was that the right not to be tried or punished twice shall also be applied to significantly false information on income tax and similar taxes. The result was thus that the Court of Justice’s ruling, as understood and applied by the Swedish Supreme Court, constituted a full-scale rejection of the combination of tax surcharge/prosecution for a tax offence. The Swedish Supreme Court seems to have assumed that the Court of Justice’s ruling in Åkerberg Fransson only was applicable to VAT. There are, however, grounds for presenting a more nuanced assessment. The exact scope of Article 51.1 in the Charter is still not fully clear. In the case Cruciano Siragusa,55 decided in 2014, the Court stated the concept of ‘implementing Union law’ as referred to in that Article requires a certain degree of connection above and beyond the matters covered being closely related or one of those matters having an indirect effect on the other’. There are thus taxes other than VAT that are to a large extent based on EU directives. These include excise duties, eg on tobacco and alcohol. The Court of Justice has furthermore developed extensive case law according to which it has found different types of national tax regulations to be incompatible with European Union primary law since they contain elements discriminatory on the grounds of nationality, usually as a result of preferential treatment of domestic business actors or individuals, or because they contain provisions that are deemed to constitute trade barriers in contravention of free movement on the internal market, eg the free movement of services or capital. In such cases, Member States have often unsuccessfully claimed that the tax provisions under review were outside the remit of EU law. It is also worth pointing out that there are directives that concern corporate taxation, including those concerning intra-group dividends, interest and royalties, taxation in relation to cross-border reorganizations, etc. The situation mentioned in the earlier 2011 Supreme Court tax offence case56 should also be recalled here. Most of the undeclared income in that case emanated from export and import business operations with other EU Member States, primarily the UK, and therefore was closely connected to European internal market regulations. Whether such a connection to Union law is to be considered sufficient to invoke the protection of such fundamental rights enshrined in EU law as ne bis in idem is debatable but remains still an unanswered question. There are then many other taxes and types of tax provisions that have a close connection with EU law besides VAT and might fall under the scope of Article 51.1 of the Charter. The Court of Justice’s ruling in Åkerberg Fransson will mean that the ne bis in idem principle in Article 50 of the 55

Case C-206/13 Cruciano Siragusa v Regione Sicilia et al, ECLI:EU:C:2014:126 para 24. NJA 2011 (n 10) 444 in section entitled ‘The U-turn of the Swedish Supreme Court’ above. 56

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Charter does not just refer to the VAT Directive but covers all taxes and tax provisions that concern the application of EU law by Member States. The dividing-line for what is covered is in itself uncertain at present on a number of points. In light of how the Court of Justice has ruled in Åkerberg Fransson and its general propensity to interpret the limits of the scope of EU law extensively, the Court may very well be prepared in its future rulings to interpret the scope of Article 50 in the Charter as relatively wide when it comes to the area of taxation. In a similar vein, it is a rule on the protection of the rights of the individual and the corresponding rule is included in the ECHR and also a general principle of Union law (Article 6.3 of the TEU). It probably won’t be long before other national courts ask for a preliminary ruling from the Court of Justice in order to test new issues related to the fiscal scope of EU law. Bearing in mind what has now been said and the fact that the same requirements for legal protection are upheld across the entire taxation field as regards ne bis in idem, it was sensible of the Swedish Supreme Court not to differentiate its assessment based on different types of tax, eg between VAT and income tax. The Decision in Åkerberg Fransson will probably be of a scope that also extends beyond the field of taxation. Swedish law currently has a system that combines financial sanctions with criminal charges in many other areas than tax, and so is the case also in many other Member States. Such systems are also affected by the Court of Justice’s ruling in Åkerberg Fransson, provided that they involve the duplication of procedures (eg when a public authority decides on the financial penalty), the subject area concerns EU law and the penalty is criminal in nature. Customs law should be mentioned in particular, as its system of sanctions, at least in Sweden, includes customs surcharges as well as prosecution for customs fraud. Environmental law is an area where EU directives play a substantial role. Much of the environmental law in the Member States is implemented Union law. In a case from 2004,57 the Swedish Supreme Court found environmental penalties are to be compared from a ECHR law point of view with tax surcharges and are criminal in nature. However, in that case, referring to ECHR law, the Supreme Court based its decision to accept duplication of procedures and sanctions on a lack of ‘clear support’ reasoning similar to the one pursued in the 2010 case on tax surcharges.58 In light of the Court of Justice’s express rejection of ‘clear support’ reasoning in Åkerberg Fransson,59 that reasoning cannot be invoked any longer by Swedish courts

57

NJA 2004, 840. NJA 2010 (n 8) 168 in section entitled ‘The U-turn of the Swedish Supreme Court’, above. 59 Åkerberg Fransson (n 1) para 45, see section entitled ‘What constitutes ne bis in idem and sanctions of a criminal nature?’ above. 58

208 Ulf Bernitz as grounds for not applying Union law to the full. It appears that the legal basis for the Supreme Court’s earlier assessment of environmental penalties in areas regulated by EU directives no longer holds water. There are numerous other areas in the field of regulation of business activities where a similar situation exists due to applied financial penalties being of a criminal nature. The overall effects on Swedish law of the Court of Justice’s ruling in Åkerberg Fransson could therefore be quite sweeping. In my opinion, we should be grateful that the Haparanda District Court had the clear-sightedness to see the potential of the Charter and that the Prosecutor’s attempt to silence the District Court by bringing its decision to refer the case to the Court of Appeal failed.60 As Haparanda District Court also pointed out in its request for a preliminary ruling, it is entirely possible to design sanctions that are sufficiently serious to ensure that business operators report their income correctly without contravening the ne bis in idem principle. Within the framework of the same legal proceedings, one can quite easily have a combination of a tax surcharge as financial penalty and fines or imprisonment as ordinary criminal penalty.

CONCLUDING REMARKS

The judgment of the Court of Justice in the Åkerberg Fransson case has had far reaching effects on the application of Swedish law. In its new rulings in June and July 201361 the Supreme Court had to accept the primacy of a legal principle in Union law of constitutional character and adjust the application of Swedish law accordingly by setting aside legislation adopted by the Parliament. It had to do so by exercising active judicial review and changing its practice in a legislative matter of great importance, which, on a number of occasions, had been the subject of commissions of inquiry and considerations by the Government and Parliament without change of position with regard to double procedures and sanctions. These developments constitute a great breakthrough in the Swedish legal environment for effective constitutional protection of fundamental rights. For the first time the Swedish Supreme Court has had to act as a constitutional court and ensure the full impact of the level of protection provided for by the Charter by rejecting or by failing to apply conflicting provisions in Swedish legislation. The Åkerberg Fransson judgment has also caused the Swedish Supreme Court to reconsider its application of ECHR law. When the Court of Justice expressly dissociated itself from a national application of ECHR law which 60 See section entitled ‘The Cartesio Principle and the Prosecutor´s Efforts to Stop the Case’ above. 61 See nn 3 and 4 in section entitled ‘The U-turn of the Swedish Supreme Court’ above.

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applied a restrictive requirement of ‘clear support’, it essentially gave the previous practice of the Swedish Supreme Court regarding its interpretation of the ECHR concerning the relation between a tax surcharge and prosecution for tax offence the kiss of death. In its seminal decision in June 2013 the Supreme Court changed its position on the interpretation of Article 4 in Protocol No 7 to the ECHR and stated it should not be interpreted as giving a person a less comprehensive protection than that awarded by Article 50 of the Charter. The Supreme Court referred to fundamental principles of foreseeability and equal treatment.62 Thus, the Charter has reinforced the impact of the ECHR. Post Scriptum. The final outcome in Åkerberg Fransson is now known. When the proceedings continued in the Haparanda District Court the prosecutor dropped the tax offence charges. However, Åkerberg Fransson was also charged for a book-keeping offence. Although there was a close relation between the inadequate book-keeping and the undeclared tax, Åkerberg Fransson was convicted in 2014 in the District Court for a bookkeeping offence to six month’s imprisonment on probation. The judgment was appealed to the Court of Appeal but not changed.63 The Court did not find the ne bis in idem principle comprise the inadequate book-keeping but regarded the book-keeping and the information submitted to the tax authorities as two different offences.64

62

NJA 2013, 502 para 59. Decision by the Court of Appeal (Hovrätten för Övre Norrland) in Case B 192-14, 12 September 2014. 64 The Court based its decision on the position taken by the Supreme Court in a similar case, see NJA 2014 p 377. 63

12 The Future of the Swedish Tax Sanction System after Ne Bis in Idem ELEONOR KRISTOFFERSSON*

INTRODUCTION

I

N THE YEAR of 2013 the Swedish Supreme Court finally changed its view on imposing both tax surcharge and penalties for tax crime in two different proceedings. Until then, the Supreme Court had stated that the ne bis in idem prohibition in Article 4, Protocol 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) did not hinder double trials. The Supreme Court had also found that it did not have to refer the question whether Article 50 of the Charter of Fundamental Rights of the European Union (the EU Charter) hindered double trials to the Court of Justice of the European Union (CJEU). In 2013 the Supreme Court stated that double trials on the same action regarding tax surcharge and tax crime was in conflict with the ne bis in idem prohibitions. The reason why the Supreme Court changed its view was that the CJEU judgment in the Åkerberg Fransson case1 had made it impossible to uphold its previous point of view. The Swedish Government had already, in March 2012, appointed a committee that should analyze the sanction system in the area of tax, covering tax crime and tax surcharge.2 The committee should take the ECHR into consideration and propose legal changes. The committee submitted its final report in September 2013.3 This chapter aims at analyzing and discussing the future of the Swedish tax sanction system after the ne bis in idem judgments. First, an introduction to tax surcharges and tax crime in Swedish law is given. Thereafter, the Zolotukhin case of the European Court of Human Rights,4 as well * Professor in Tax Law at Örebro University, Sweden, and Visiting Professor at Högskolan i Gävle, Sweden as well as Salsburg University, Austria. 1 Case C-617/10 Hans Åkerberg Fransson Judgment 26 February 2013, ECR 2013:105. 2 Dir 2012:14. 3 SOU 2013:62. 4 Sergey Zolotukhin v Russia (App no 14939/03) (2009).

212 Eleonor Kristoffersson as the reception of the Zolotukhin case of the Swedish Supreme Court and the Swedish Supreme administrative court are discussed. After that the Åkerberg Fransson case and the way it was received by the Swedish Supreme Court is discussed. Thereafter, the proposal of the governmental committee is described. Finally, against this background, the future of the Swedish tax sanction system is dealt with. The chapter is concluded with my final remarks.

TAX SURCHARGES AND TAX CRIME

In the Swedish tax system, there are two different sanctions: Tax surcharges which is considered to be an administrative sanction and is imposed by the tax authorities, and penal law sanctions, such as imprisonment and fines. The tax sanction system of today, with two parallel sanctions, was introduced in 1972. At that time the administrative sanctions tax surcharges and late fees were introduced. The ideas behind having two parallel sanction systems were that only severe offences should be subject to criminal proceedings as well as to increase the economic pressure on the taxpayers to pay their taxes. The prosecutors and the police should not have to deal with simple issues. There are however many cases that qualify both for tax surcharge and as tax crimes. The tax surcharges are imposed when the taxpayer, by other than oral means, has given incorrect information to the tax administration, and by this has evaded taxes that otherwise should have been paid.5 Tax surcharges should also be imposed at presumptive taxation, that is when the taxpayer has not declared his or her income at all or when the taxpayer has not given enough information for the tax administration to determine the tax.6 The tax surcharge is calculated as a certain percentage of the evaded tax amount. The percentage depends on which tax has been evaded and whether the incorrect information has led to accrual fault or to a definite evasion. The tax surcharge rate varies from two to 40 per cent of evaded tax.7 When imposing tax surcharge, there is no subjective requirement; that is there is no requirement of dolus or culpa. The taxpayer may, however, under certain circumstances be relieved from tax surcharge. This may be the case when the levying of the tax involves a difficult legal issue or when the incorrect information is given under illness or weakness.8

5 6 7 8

See Chapter 49, section 4 skatteförfarandelagen (2011:1244) (Tax Procedural Act, TPA). Chapter 49, section 6 TPA. Chapter 49, section 12–15 TPA. Chapter 51 TPA.

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The provisions on tax crime are found in the Tax Penal Code.9 There are several crimes in the Tax Penal Code. The main crime is the tax crime (SW: skattebrott). When the taxpayer, by other than oral means, intentionally (dolus) gives incorrect information to the tax administration or does not declare the taxes, and by this has caused a hazard of evasion of taxes that otherwise should have been paid, the taxpayer will be convicted of tax crime and imprisoned for up to two years. There is also a felony tax crime which renders an imprisonment of a minimum of six months and a maximum of six years.10 The penalty for minor tax crime is fines.11 The minor tax crime is only to be prosecuted when a prosecution is warranted by special circumstances.12 The idea behind not normally prosecuting for minor tax crime is that the tax surcharge is a sufficient sanction. There are two parallel court systems in Sweden; administrative courts and ordinary courts. Both court systems have three instances. For the highest courts, the Supreme Administrative Court13 and the Supreme Court,14 a leave to appeal is needed. Tax issues including tax surcharge are dealt with in the administrative courts. Criminal cases including tax crime are dealt with in the ordinary courts. In most cases, but not all, the criminal case will be decided after the tax case. It happens now and then however that the criminal case is decided before the tax case. When in these latter cases the tax case in retrospect is proven to include difficult tax issues and the accused person is already sentenced to imprisonment without a prior expert trial of the administrative court of the tax issue, it would have been better to have a compulsory order when the tax case was always decided before the criminal case. In the current system it is up to the ordinary court to decide whether it waits for the administrative court to decide the tax issue or not.

THE ZOLOTUKHIN CASE AND THE SWEDISH SUPREME COURTS IN 2010

Under Article 4, Protocol 7 ECHR no one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same state for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that state. For a long time it was unclear whether the imposition of administrative sanctions, such as the tax surcharge, could be classed as criminal proceedings. 9 10 11 12 13 14

Skattebrottslagen (1971:69). Section 4 skattebrottslagen (1971:69) (Tax Penal Act). Section 3 ibid. Section 13 ibid. Högsta förvaltningsdomstolen. Högsta domstolen.

214 Eleonor Kristoffersson It was also unclear how to understand an offence. The European Court of Human Rights had applied the latter requirement inconsistently, until the Zolotukhin case on 10 February 2009.15 The Zolotukhin case was a plenary decision in the Grand Chamber of the Court, where the Court was seeking to put an end to this legal uncertainty. The Court stated that when deciding whether the offences were the same (idem) it should be decisive whether the offences had the same essential elements. In the Zolotukhin case disturbance of public order constituted the same essential elements. In the Routsalainen case on 16 June 2009, the Court (fourth chamber) found the Finnish tax surcharge and tax crime system incompatible with the ne bis in idem principle in Article 4, Protocol 7.16 Both the Swedish Supreme Administrative Court and the Swedish Supreme Court have tried the Swedish tax surcharge and tax crime system against the ne bis in idem principle of the ECHR. The Supreme Administrative Court found the system compatible with the ECHR.17 The Court motivated its position that the Convention has to be read in the light of the national legal systems. The Court also referred to the case law of the European Court of Human Rights before the Zolotukhin case, which was considered to strengthen the fact that the Swedish system was compatible with the ECHR.18 The Supreme Court19 referred to the Zolotukhin case and stated that the basic criterion for both tax surcharge and tax crime in general is incorrect information. The difference between tax surcharge and tax crime is that the latter but not the former requires dolus or culpa. According to the Supreme Court, the European Court of Human Rights would impossibly deem offences as different only because of differences in the subjective elements (consideration to dolus or culpa) or not. One could have imagined that this statement would have made the Supreme Court decide that the two procedures for the same offence would be contrary to the ne bis in idem principle.20 This was however not the case. The Supreme Court stated that different interpretations of the same offence were still possible. Consequently, it was not clear (SW: klart stöd) enough that Swedish law was incompatible with the ECHR. Therefore, there was no basis to reject the Swedish double sanction system.

15

Zolotukhin (n 4). Routsalainen v Finland (App no 13079/03) 16 June 2009. 17 The Supreme Administrative Court in RÅ 2009 ref 94. 18 See eg Karin Åhman, Europakonventionen och förbudet mot dubbelbestraffning, Svensk skattetidning (Eng: Swedish tax journal) (2012) 104–16. 19 The Supreme Court in NJA 2010 s 168 I and II. 20 Elisabeth Palm, Dubbelbestraffning och Europakonventionen, Svensk Skattetidning (Eng: Swedish tax journal) (2010) 623. 16

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The Supreme Court decisions have been subject to massive criticism in the legal doctrine.21 Some lower courts have even refused to follow the decisions of the Supreme Court.22 This is extraordinary in the Swedish legal system where the lower courts seldom oppose the Supreme Court.23

THE ÅKERBERG FRANSSON CASE AND THE SWEDISH SUPREME COURT

The Åkerberg Fransson case has its origin in Haparanda tingsrätt (District Court) in the very north of Sweden. It was a criminal proceeding, where the fisherman Åkerberg Fransson was charged with tax crime regarding both income tax and VAT. Åkerberg Fransson had however already been liable for paying tax surcharge. Haparanda District Court referred basically three questions (divided into five) to the CJEU, namely: 1. whether the ne bis in idem principle laid down in Article 50 of the Charter should be interpreted as precluding criminal proceedings for tax evasion from being brought against a defendant where a tax penalty has already been imposed upon him for the same acts of providing false information; 2. whether national legislation which allows the same court to impose tax penalties in combination with criminal penalties in the event of tax evasion is compatible with the ne bis in idem principle guaranteed by Article 50 of the Charter; and 3. whether a national judicial practice is compatible with European Union law if it makes the obligation for a national court to disapply any provision contrary to a fundamental right guaranteed by the ECHR and by the Charter conditional upon that infringement being clear from the instruments concerned or the case law relating to them. The CJEU ruled that the ne bis in idem principle laid down in Article 50 of the Charter of Fundamental Rights of the European Union does not

21 Johan Munck, Skattetillägg och dubbelbestraffning, Svensk juristtidning (Eng: Swedish Law Journal) (2010) 750, Elisabeth Palm (n 20) 630; Casey Yeldham, Dubbelbestraffningsförbudens tillämplighet på skattetillägg och skattebrott—uppfylls rättssäkerhetens krav på en fastställd rättskällehierarki avseende förhållandet mellan nationell rätt, unionsrätt och konventionsrätt? Skattenytt, (Eng: Swedish tax news) (2012) 879–80. 22 The most well-known case is a case from the Court of Appeal in the West of Sweden, Hovrätten för Västra Sverige 2010-06-23 mål B2432-09. See also Solna tingsrätt, 2010-0514 mål B 8288-99; Stockholms tingsrätt 2010-09-14 mål B 12196-09; Varbergs tingsrätt 2010-10-26 mål B 2501-09; Göteborgs tingsrätt 2010-10-18 mål B 256-10, B 11566-09 and B 1771-07; Göterborgs tingsrätt 2011-01-25 mål B 2683-09 and Värmlands tingsrätt 201205-04 mål B 2159-09. 23 Eleonor Kristoffersson, Att använda prejudikat och annan rättspraxis i rättstillämpningen, Svensk Skattetidning (Eng: Swedish tax journal) (2010) 847–48.

216 Eleonor Kristoffersson preclude a Member State from imposing successively, for the same acts of non-compliance with declaration obligations in the field of VAT, a tax penalty and a criminal penalty in so far as the first penalty is not criminal in nature, a matter which is for the national court to determine. The CJEU furthermore ruled that EU law does not govern the relations between the ECHR, and the legal systems of the Member States, nor does it determine the conclusions to be drawn by a national court in the event of conflict between the rights guaranteed by that convention and a rule of national law. Finally, the CJEU stated that EU law precludes a judicial practice which makes the obligation for a national court to disapply any provision contrary to a fundamental right guaranteed by the EU Charter conditional upon that infringement being clear from the text of the Charter or the case law relating to it, since it withholds from the national court the power to assess fully, with, as the case may be, the cooperation of the CJEU, whether that provision is compatible with the Charter. On 11 June 2013 the Swedish Supreme Court finally changed its view on the relationship between the double sanction system and the ne bis in idem principle. The Supreme Court tried whether it should sentence a person, who previously was obliged to pay tax surcharges, for tax crime regarding income tax and value added tax. First of all the Supreme Court decided that the EU Charter applies, at least to some extent, to tax sanctions. The Supreme Court stated that the content of the law was different than it had assumed in the above mentioned case NJA 2011 s 444. This had become obvious for the Supreme Court after the Åkerberg Fransson case. In my opinion it is however remarkable that the Supreme Court in NJA 2011 s 444 found the question of interpretation of if the EU Charter applied on VAT sanctions was so clear that it did not find the need to ask for a preliminary ruling from the CJEU.24 Thereafter, the Supreme Court decided that tax surcharge is a criminal penalty under Article 4, Protocol 7 ECHR and Article 50 of the Charter. The Supreme Court based this upon decisions from the European Court of Human Rights25 as well as the above mentioned decisions NJA 2010 s 168 I and II. It was also based on the case NJA 2004 s 510 I and II. Furthermore, the Supreme Court found that tax surcharge and tax crime regard the same offence in Article 4, Protocol 7 ECHR and Article 50 of the Charter, since incorrect information is the basic requirement for both tax surcharge and tax crime.

24 See Magnus Gulliksson and Eleonor Kristoffersson, Betydelsen av ne bis in idemprincipen för skattebrott och skattetillägg, Svensk skattetidning (Eng: Swedish tax journal) (2011) 227. 25 Manasson v Sweden (App no 41265/98) 8 April 2003; Rosenquist v Sweden and Carlberg v Sweden (App no 9631/04 27) January 2009.

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Tax surcharge and accounting fraud are, according to the Supreme Court, not the same offence. The main reason for this is that the two offences do not normally take place at the same time. The incorrect information in the business accounting is given before the incorrect information is given in the tax return. In Swedish income tax law there is a close connection between taxation and accounting. The question whether an income is taxable or if a cost is deductible is always based only on tax considerations.26 The tax accrual of income and costs, as well as the tax evaluation of assets and debts is, however, under the main rule, directly and immediately dependent on the business accounting.27 Therefore, in my opinion, it is not unlikely that the Supreme Court will have to change its opinion on this issue in the future. On the issue of whether tax surcharge and tax crime is prohibited under the ne bis in idem principle, the Supreme Court points out that the Åkerberg Fransson case regards VAT. Since this case also included income tax fraud, the Supreme Court also had to deal with the question whether the ne bis in idem principle should not only apply on VAT fraud but also on income tax fraud, and also on general payroll tax. The Supreme Court stated frankly that in the cases NJA 2010 s 168 I and II it was in the Court’s backyard to express the opinion that the legislator should change the law rather than that the Court should apply the Convention—but that the situation now had changed. In my opinion this statement of the Supreme Court is extremely odd. The Supreme Court is known for its high integrity and wellmotivated judgments. In this case the Supreme Court openly admits that it did not apply the ECHR, not because it was not applicable but because the Court did not want to overrule the Swedish law. The Supreme Court states that since there is a close connection between the Charter and the ECHR as well as due to general principles on foreseeability and equal treatment, there is reason to change the previous statements in NJA 2010 s 168 I and II. The Supreme Court now finds ECHR applicable on the Swedish double sanction system. Consequently the ne bis in idem prohibition applies on incorrect information with regard to income tax and payroll taxes. The Supreme Court also settled the issue that tax surcharge could be imposed on a legal person whereas an individual, such as a board member and/or an owner, could be charged with tax crime. Generally, the ne bis in idem principle does not hinder such a procedure, since the two sanctions do not regard the same person. In a case where an individual is liable to pay the legal person’s taxes and tax surcharges, though, the ne bis in idem principle applies.

26 27

Chapter 15–16 of the inkomstskattelagen (1999:1229) (Swedish Income Tax Act, SITA). Chapter 14, ss 2 and 4 SITA.

218 Eleonor Kristoffersson The last question that the Supreme Court answered was if the ne bis in idem principle applied only when the person was finally convicted or acquitted or if it also applies on lis pendens. The Supreme Court referred to the fact that in Swedish law there is a definite connection between the binding force of judgments and lis pendens. Consequently, from the time when the tax authorities have made their decision to impose tax surcharge the prosecution of tax crime is precluded. In my opinion though, it could be argued that the tax surcharge procedure starts before the time of the tax authorities’ decision. If, for example, the tax authorities initiate a procedure on payment of debt28 regarding the tax surcharge, in my opinion, the tax authorities must be considered to have initiated a procedure on tax surcharge.

THE PROPOSAL BY THE GOVERNMENTAL COMMITTEE

The governmental committee Utredningen om rättssäkerhet i skatteförfarandet29 submitted its final report on 12 September 2013.30 The committee proposes that the tax surcharges in cases of a charge with tax crime should be dealt with in the criminal proceeding before the ordinary courts. Consequently, there will be two different sanctions—tax surcharge and the criminal sanctions such as imprisonment—but only in one criminal proceeding.31 In short, the proposed procedure could be summarized as follows:32 —

Where the prosecutor does not consider a charge with tax crime, the tax surcharge will be imposed by the tax administration. — Where the prosecutor does consider a charge with tax crime, the tax administration will not impose any tax surcharge. — If the prosecutor chooses to prosecute, the ordinary court—not the administrative court—that deals with the tax crime will, in case of conviction, impose the tax surcharge. This is also the case when the tax issue is not finally settled in the administrative court.33 — If the prosecutor chooses not to prosecute, the case will be remitted to the tax administration that imposes tax surcharge. The procedure with tax surcharge and tax crime in the same procedure is proposed to be carried out under a new law, lagen om skattetillägg och 28

Sw: Betalningssäkring. The committee on legal certainty in the tax procedure. 30 SOU 2013:62 Förbudet mot dubbla förfaranden och andra rättssäkerhetsfrågor i skatteförfarandet. 31 ibid 22. 32 ibid 22–24. 33 ibid 265–66. 29

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tulltillägg i allmän domstol. The law is proposed to enter into force on 1 July 2014.

BEYOND NE BIS IN IDEM—THE FUTURE OF THE TAX SANCTIONS

The current Swedish tax sanction system is put into question. It begun with the revolution of the lower courts in Sweden, led by the Court of Appeal in Gothenburg, openly refusing to follow the case law of the Supreme Court. The judgment of the CJEU in Åkerberg Fransson has indicated that regarding VAT the Swedish tax surcharge system is only allowed to combine with prosecution for tax crime, if the tax surcharges are administrative sanctions. The Swedish tax surcharge is however not an administrative but a criminal sanction.34 The judgment of the Swedish Supreme Court on 11 June 2013 showed that this also applies on income and payroll tax. In practice, the ne bis in idem principle, both in ECHR and the EU Charter, led to legal uncertainty and disorder in the Swedish legal system. Depending on what court or even what judge of an actual court that dealt with a trial regarding tax crime, either the prosecution could be overruled or the suspect could be sentenced to imprisonment for several years for exactly the same offence. The Supreme Court and the Supreme Administrative Court have struggled to protect the Swedish double sanction system, whereas many legal scholars, and even judges, have been convinced that the judgments of the highest courts—that as such should represent what is right—were actually wrong. Apart from the problem with the ne bis in idem principle—if it is at all possible not to take that problem into consideration—the double sanction system has advantages. The tax surcharge affects the tax-paying moral positively because of the efficient sanctions when the taxpayers do not fulfill their obligations to declare their income or other taxes. The tax surcharge system is however not a sufficient sanction when it comes to more severe cases of tax evasion. Tax crime is considered to be a serious offence that should normally lead to imprisonment.35 It would be foreign to Swedish legal thinking if tax crime was only subject to tax surcharge, with the consequence being that it would be possible for someone to buy their way out of responsibility for tax crime. One possible legal solution that the committee examined was to keep the tax surcharge system but not to apply it when a criminal procedure was 34 See Petter Asp, EU-domstolen och förbudet mot dubbel lagföring Infotorg analys (an internet tax news platform), 28 February 2013. See also the Swedish Supreme Administrative Court in RÅ 2000 ref 66, the Supreme Court case NJA 2000 s 622 and the Supreme Court case 11 June 2013 in case B 4946-12. 35 Swedish Supreme Court cases NJA 2000 p 190, NJA 2003 p 499. See also Stenborre, Eva, Artbrott, Svensk juristtidning (Eng: Swedish law journal) (1998) 746.

220 Eleonor Kristoffersson initiated.36 Norway applies a system similar to this.37 If this legal solution was chosen, the tax administration would have to choose between imposing tax surcharge and handing the case over to the police. In the latter case, there would be no tax surcharge. If the prosecutor chose not to prosecute, the case could be returned to the tax administration, and a tax surcharge could be imposed. In the Norwegian model there is however a problem in how to achieve an equal treatment on tax evasion.38 Tax surcharges may be very high and make persons indebted for many years, whereas an imprisonment is a current interference. The criminal record is subject to secrecy in Sweden.39 Shorter imprisonments may be served at home under electronic monitoring. Under certain circumstances a tax crime may not render imprisonment but a suspended sentence or probation. On the one hand, in some cases it could be more advantageous to be convicted with a tax crime than to be imposed a high tax surcharge. On the other hand, wealthy persons might probably prefer paying a high tax surcharge to being sentenced for tax crime. The two different sanctions are not comparable. Still, the border between what is a tax crime and what is not is not very clear. There is no threshold regarding evaded tax amount that determines whether to prosecute or not. No tax has to be evaded in order to commit a tax crime, since the requirement for tax crime is a hazard for tax evasion.40 Consequently, virtually the same act—to give incorrect information to the tax administration—may in one case be subject to prosecution and in another similar case not. Another problem regards evidence. Since tax surcharge is a penal sanction, the facts should be beyond reasonable doubt—which is applicable in tax crime—before tax surcharge is imposed. This is however not the case, neither in the legislation nor in practice. Under the tax surcharge provisions, it should be clear41 that incorrect information has been given. Clear is not as strong as beyond reasonable doubt. In practice, many lower courts already impose tax surcharge when it is likely that incorrect information

36

SOU 2013:62 (n 30) 99 and 200–03. Norweigian preparatory work Ot Prp Nr 82, 2008-2009, Om lov om endringer i ligningsloven mv. (tilleggsskatt), där ett sådant tillvägagångssätt föreslås. Se även Skatteetaten (The Norwegian tax administration), Lignings-ABC. Tilleggsskatt, www.skatteetaten.no/no/ Radgiver/Rettskilder/Handboker/Lignings-ABC/Kapitler/T/?mainchapter=44225. 38 This is however not a problem for the equal treatment principle in constitutional law, since the Swedish equal treatment principle only guarantees equal treatment in application and interpretation, not in legislation, see Magnus Gulliksson and Eleonor Kristoffersson (n 24) 225. For another opinion, see Cecile Brokelind, ‘Åkerberg Fransson. Ne bis in idem principle. Combination of Tax Penalties and Criminal Penalties’ (Comments by Brokelind) in Highlights and Insights on European Taxation 2003/4 16. 39 Chapter 35, s 3 offentlighets-och sekretesslagen (2009:400) (Public Access and Secrecy Act). 40 Section 2 skattebrottslagen (1971:69) (Tax Penal Code). 41 ‘klart framgå’, see Chapter 49, s 5 skatteförfarandelagen (2011:1244) (TPA). 37

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has been given.42 Since most cases do not reach the Supreme Administrative Court, where the requirement of clear normally is upheld,43 in many cases tax surcharge is imposed at an even lower level of evidence than clear. The differences between the level of evidence in the tax surcharge and the penal procedure—especially when it comes to the practical application of proof regarding tax surcharges—makes it easier to escape responsibility in the penal than in the tax surcharge procedure. When incorrect information or the other requirements of tax crime are difficult to prove, for the taxpayer the criminal procedure is preferential. Since the tax surcharge differs from the consequences of tax crime whereas the act that triggers both sanctions is mainly the same, an idea could be to adjust the sanctions in order to make them comparable. If the tax surcharge should be the sanction for less severe cases of incorrect information and imprisonment should be the sanction for severe cases, the sanctions would be more relevant if the imprisonment was combined with an economic sanction corresponding to the tax surcharge. This is however not easy to achieve within the current Swedish sanction system. If imprisonment as a reaction to tax crime would have to be combined with a fine, corresponding to a tax surcharge, the fine should, just as the tax surcharge, be in proportion with the evaded amount of tax. There are such fines within the Swedish penal system, called normerade böter, normative fines.44 The normative fines were previously applied on tax crime.45 Since the tax crime does no longer require the effect of evaded tax, but already the hazard of tax evasion constitutes a tax crime, normative fines are no longer a feasible sanction for tax crime. Neither are normative fines necessary when tax is evaded in the present system with tax surcharge. The area of application of normative fines in Sweden today is virtually nonexistent.46 To in practice reintroduce normative fines would make the sanction system more complex than it is today. The penal sanctions imprisonment and fines are not combined in Sweden for two main reasons: 1. Imprisonment is considered to be a more severe sanction than fines. Therefore, fines are consumed by imprisonment. The convicted person is considered to have atoned the crime when the imprisonment is served.47

42 Börje Leidhammar, Gustav Lindqvist, Bevisprövning i mål om osanna fakturor, Norstedts förlag, Stockholm, (2011) 62. 43 Supreme Administrative Court case RÅ 2001 ref 22. 44 Chapter 25, s 4 brottsbalken (1962:700) (BrB) (Swedish Penal Code). 45 For the practical application, see Supreme Administrative Court case RÅ 1958, 304. 46 Nils Jareborg, Josef Zila, Straffrättens påföljdslära, Norstedts juridik, Stockholm, (2010) 31. 47 Brå rapport 1977:4.

222 Eleonor Kristoffersson 2. Normally an imprisoned person does not have any earnings. Imprisonment combined with fines puts the convicted person at risk of becoming indebted.48 Interestingly, obviously tax surcharge and imprisonment are combined— and will be combined in the proposed new Swedish system,49 which has exactly the same effect as combining imprisonment and fines. Overall, it could be questioned, if the idea is to combine tax surcharge and imprisonment, or in other words, economic sanctions and imprisonment is intended. When the Swedish Supreme Administrative Court in 2009 decided that the double sanctions were not contrary to the ne bis in idem prohibition in ECHR, it seemed to base its judgment upon the assumption that the double sanctions will always be in reasonable proportion to the offence.50 Under Chapter 29, section 5 the Swedish Penal Code51 there is a possibility for the penal courts to ease the penalty in case of ‘other circumstances’. Administrative sanctions are such ‘other circumstances’ that can be taken into account. According to the Supreme Administrative Court, administrative burdens are—in principle—always taken into consideration when deciding the penalty and also when this is not mentioned in the judgment.52 Under Chapter 51, section 1 of the Tax Procedure Act (TPA),53 a previous penalty for tax crime should be taken into consideration when deciding the tax surcharge. In the case before Supreme Administrative Court a fine for tax crime did not prevent the Supreme Administrative Court to impose a tax surcharge. The Supreme Administrative Court did not use the opportunity it had in internal law to avoid a situation of double penalties for the same act. Since tax surcharge is actually combined with sanctions following the tax crime, these opportunities to avoid double sanctions are not used sufficiently. Abolishing the tax surcharge could also be considered. If so, the state would lose huge amounts of revenue.54 The tax system would probably be less efficient, without an efficient sanction for giving incorrect information. Consequently, the tax revenue would probably also decrease. Abolishing the tax surcharge seems to be a less attractive measure. Probably the least burdensome solution, as proposed by the committee, is to keep the double sanction system, but to deal with the two sanctions in one and the same trial.55 The problems are however exactly the same as in 48

See Swedish preparatory work prop 1980/81:76, 55. SOU 2013:63 (fn 30), 20. 50 Swedish Supreme Administrative Court case RÅ 2009 ref 34. 51 Brottsbalken (1962:700) (BrB). 52 RÅ 2009 ref 34 (n 50). 53 Skatteförfarandelagen (2011:1244) (TPA). 54 In 2005, only the tax surcharges at arbitrary assessment amounted to 207 MSEK/year, see SOU 2006:89. 55 SOU 2013:63 (n 49). 49

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the case with combining imprisonment with economic sanctions. There is also another problem. Tax surcharges are dealt with in the administrative courts. Tax crime is dealt with in the ordinary courts. If the tax surcharge is moved to the ordinary courts when they are combined with a charge with tax crime, both the administrative and the ordinary courts will deal with the same legal issues. To move all the tax surcharges procedures to the ordinary courts would cause double procedures when the tax issue is dealt with in the administrative courts. To move the tax crime procedure to the administrative courts would be very odd, since the criminal procedures in general are at the ordinary courts. Most likely, due to the legal culture and different procedural rules for the courts, an inconsistent case law would develop. It is difficult to find a solution that upholds the efficiency in the tax surcharge system and the severity in sanctions for tax crime at the same time. All the possible solutions discussed above have serious disadvantages.

FINAL REMARKS AND CONCLUSIONS

It has taken Swedish courts decades to find out that the double sanction system in different legal proceedings is contrary to the ne bis in idem principle in European law. It has led to a situation where tax criminals are not convicted when the tax surcharge has been imposed; even in the case where the tax surcharge is not a sufficient sanction in proportion with the severity of the tax crime. The committee examining the Swedish system proposed to deal with tax surcharges and sanctions relating to one and the same tax crime in one single proceeding. Since this proposal has been subject to massive criticism during the public consultation, the future of the proposal is uncertain. In my opinion, the Swedish sanction system in the area of taxes does not improve and the proposal does not achieve a higher level of legal certainty. On the contrary, there is a risk that the practices on tax surcharge will differ in the administrative courts and the ordinary courts. In practice, the same tax crime will be punished with both fines—even though the fines are called tax surcharge—and imprisonment, which is alien to Swedish penalty law in general. When the legislator had the chance to make a proper revision of the tax sanction system I would have wished that it would have worked a bit harder to achieve a modern, efficient, cohesive sanction system with a high level of legal certainty.

Index Accession to ECHR CJEU perspectives aims of accession, 30–31 autonomy in EU law, 30–31 balancing fundamental rights, 32 drafting of Agreement, 31 historical context, 29 impact of CFR, 29–30 mutual recognition of justice, freedom and security, 32–33 history effect of Lisbon Treaty, 10 long journey leading to negotiations, 91–93 pre-Lisbon Treaty, 8–10 impact of recent developments, 26–27 implications of successful outcome, 102–04 increasingly relevant issue, 7–8 legal obligation created by Lisbon Treaty, 91 negotiating process equality principle, 98 final open issues, 98–101 introduction of co-respondent mechanism, 93–97 main elements of Draft Agreement, 101 outstanding Opinion of CJEU, 101 requirement for normative basis, 98 role of Committee of Ministers, 97–98 procedural complexities, 21–23 adoption of co-defendant model, 21–23 practical difficulties with Draft Agreement, 19–20 preservation of EU autonomy, 23–26 procedural reform as a necessary condition, 11–12 relationship between EU law and ECHR impact of CFR and Lisbon Treaty on relationship, 13–17 potential impact of accession on Bosphorus approach, 17–18 pre-Lisbon case law, 12–13 underlying rationales, 10–11 Action Plan conclusions, 57–58 difficulties of implementation, 39 form and content, 48 fuzzy border with Member State foreign policy, 52–53

human trafficking, 122 reliance on TEU-foreign policy competences, 53–56 responsible actors, 48–52 Adequate/effective sanctions ambiguity in choice of sanctions for Member States, 163–74 conclusions, 188–89 limiting of sanctions, 153–57 scope of protection in EU law, 181 Åkerberg Fransson case compatibility with Melloni case, 5–6 facts of case, 194–95 far reaching effects, 208–09 general impact of case collective Swedish tax system, 205–06 environmental law, 207–08 excise duties, 206 financial penalties, 207–08 general taxes, 206–07 Grand Chamber ruling, 196–99 impact on relationship between EU law and ECHR, 15 impact on Swedish tax sanction system, 1–2 legal setting before, 132–33 meaning and scope of ne bis idem principle, 200–05 ne bis in idem as limitation on sanctions, 161–62 overview, 191 Public Prosecutor’s efforts to stop case, 195–96 u-turn of Swedish Supreme Court, 191–94 Autonomy in EU law challenge of constitutional pluralism, 137–39 CJEU perceptions on accession to ECHR, 30–31 meaning, 19–21 negotiations for access to ECHR, 99–100 procedural complexities of accession, 23–26 Balancing of rights CJEU perspectives on accession to ECHR, 32 ECtHR application of margin of appreciation, 62–64 ne bis in idem as general principle, 149

226 Index Bosphorus case impact on relationship between EU law and ECHR, 16–17 importance, 13 potential impact of accession on Bosphorus approach, 17–18 Cartesio principle, 195–96 Charter of Fundamental Rights (CFR) binding effect, 91 CJEU perceptions on accession to ECHR, 29–30 Grand Chamber ruling in Åkerberg Fransson case, 197–98 impact of Åkerberg Fransson case, 1–2 impact on relationship between EU law and ECHR, 13–17 key principles raised by Melloni case, 2–5 meaning and scope of ne bis idem principle, 200–04 ne bis in idem as general principle background prior to Åkerberg Fransson case, 147–49 history and development, 141 interpretation as uniform principle, 151–54 limitation on use of sanctions, 161–62 scope of protection in EU law, 181–84 place of margin of appreciation in EU legal order, 66–68 Co-respondent mechanism (CRM) implications of successful outcome, 102 introduction into negotiating process, 93–97 procedural complexities, 21–23 Common Foreign and Security Policy (CFSP) see EU foreign policy Common Security and Defence Policy (CSDP), 36 Constitutional pluralism obedience to CJEU, 137–39 pre-existing Swedish system, 136–37 Court of Justice of European Union (CJEU) see also European Court of Human Rights (ECtHR) adoption of co-respondent mechanism introduction into negotiating process, 93–97 procedural complexities of accession, 21–23 adoption of margin of appreciation general principles, 60 relationship with ECtHR, 72–73 Cartesio principle, 195–96 challenge of constitutional pluralism, 137–39 historical role in the protection of human rights, 8–10

Melloni case compatibility with Åkerberg Fransson case, 5–6 key principles raised, 2–5 ne bis in idem as general principle background prior to Åkerberg Fransson case, 142–43, 147–49 history and development, 141 perceptions on accession to ECHR aims of accession, 30–31 autonomy in EU law, 30–31 balancing fundamental rights, 32 drafting of Agreement, 31 historical context, 29 impact of CFR, 29–30 mutual recognition of justice, freedom and security, 32–33 procedural complexities of accession potential adoption of co-defendant model, 21–23 preservation of EU autonomy, 23–26 Effectiveness see Adequate/effective sanctions Enforcement of human rights see also Tax sanction systems adequate/effective sanctions ambiguity in choice of sanctions for Member States, 163–74 conclusions, 188–89 limiting of sanctions, 153–57 scope of protection in EU law, 181 human trafficking Council of Europe efforts to reduce market, 118–21 EU foreign policy, 121–25 key strategies, 105–07 shift in focus of state efforts, 107–08 Sweden, 125–29 ne bis in idem as general principle ambiguity in choice of sanctions for Member States, 163–74 limitation on use of sanctions, 157–63 scope of protection in EU law, 180–88 underlying rationale for accession of EU to ECHR, 10–11 EU foreign policy Action Plan conclusions, 57–58 difficulties of implementation, 39 form and content, 48 fuzzy border with Member State foreign policy, 52–53 human trafficking, 122 reliance on TEU-foreign policy competences, 53–56 responsible actors, 48–52 aspirations, 35

Index central importance of democracy and human rights, 43–46 constituents of external action, 39–41 efforts to reduce trafficking, 121–25 historical tension between centralization and decentralization, 36–38 impact of Lisbon Treaty, 35–36 negotiations for access to ECHR, 99 Strategic Framework 2012 conclusions, 57–58 difficulties of implementation, 39 form and content, 46–48 responsible actors, 48–52 underlying questions, 38 treaty provisions TEU, 41–43 TFEU, 41 European Arrest Warrant Melloni case compatibility with Åkerberg Fransson case, 5–6 key principles raised, 2–5 primacy of EU law, 199 Spanish constitutional protection for persons convicted in absence, 157–58 three key principles, 2–5 ne bis in idem as general principle background prior to Åkerberg Fransson case, 143 interpretation as uniform principle, 153–57 scope of protection in EU law, 186 European Convention on Human Rights (ECHR) see also Accession to ECHR human trafficking Council of Europe efforts to reduce market, 108–09 general provisions, 108 impact of Åkerberg Fransson case, 1–2 margin of appreciation, 59 meaning and scope of ne bis idem principle, 200–05 ne bis in idem as general principle, 153–57 one of three Swedish constitutional orders, 131–32 relationship with EU law impact of CFR and Lisbon Treaty on relationship, 13–17 potential impact of accession on Bosphorus approach, 17–18 pre-Lisbon case law, 12–13 Sweden case law, 75 formal incorporation, 79 issues arising in case law, 80–85

227

European Court of Human Rights (ECtHR) see also Court of Justice of European Union co-respondent mechanism (CRM) introduction into negotiating process, 93–97 potential adoption of model, 21–23 findings on Swedish tax system, 193 human trafficking harmonization, 113–14 international efforts to reduce market, 118–19 interpretation of Article 4, 109 positive obligations, 114–18 margin of appreciation application, 60–64 judicial and political breaches distinguished, 66 relationship with CJEU, 72–73 meaning and scope of ne bis idem principle, 201–02 ne bis in idem as general principle history and development, 141–42 Swedish tax sanction cases, 143–46 Swedish legal setting before Åkerberg Fransson case, 132–33 European Court of Justice (ECJ) see Court of Justice of European Union (CJEU) European Political Cooperation (EPC), 36–37 Fair trial (Article 6) Melloni case, 2–5 Forced labour Council of Europe efforts to reduce market, 118–20 EU foreign policy, 121–22 harmonization, 113–14 human trafficking distinguished, 112–13 positive obligations, 114–15 Sweden, 125–29 Foreign policy see EU foreign policy General principles ECtHR application of margin of appreciation, 61 historical role of CJEU in the protection of human rights, 8–10 ne bis in idem, 186 ambiguity in choice of sanctions for Member States, 163–74 background prior to Åkerberg Fransson case, 142–49 conclusions, 188–89 history and development, 141–42 interpretation as uniform principle, 157–63 legal certainty expressed as res judicata, 174–80 scope of protection in EU law, 180–88

228 Index Human trafficking enforcement key strategies, 105–07 shift in focus of state efforts, 107–08 harmonization by courts, 113–14 inclusion within ECHR, 108–09 other forms of exploitation distinguished forced labour, 112–13 servitude, 111–12 slavery, 110–11 positive obligations, 114–18 Judicial review practical difficulties with Draft Accession Agreement, 19 Sweden codification in 1980, 79–80 factors influencing decay of legislator, 88 future constitutional developments, 89–90 historical background, 76–78 increase in cases since 1990, 85 introduction, 75 issues arising in case law, 80–85 method by which courts performed review, 85–87 possible consequences of extending review, 87 role of parliament, 87 uncertainty of ‘what is law’, 89 varying role of courts, 88–89 Legal certainty, 174–80 Margin of appreciation conclusions, 72–73 defined, 59 European supervision, 59–60 place in EU legal order, 64–72 Matthews case, 13 Melloni case compatibility with Åkerberg Fransson case, 5–6 Spanish constitutional protection for persons convicted in absence, 157–58 three key principles, 2–5 Mutual recognition CJEU perceptions on accession to ECHR, 32–33 Melloni case, 4–5 Ne bis in idem see also Åkerberg Fransson case constitutional pluralism obedience to CJEU, 137–39 principle more important than authority, 139–40 the Swedish challenge, 136–37

as general principle ambiguity in choice of sanctions for Member States, 163–74 background prior to Åkerberg Fransson case, 142–49 conclusions, 188–89 history and development, 141–42 interpretation as uniform principle, 149–57 legal certainty expressed as res judicata, 174–80 limitation on use of sanctions, 157–63 limiting of sanctions, 153–57 scope of protection in EU law, 180–88 impact of Åkerberg Fransson case, 1–2 judge-made mess before Åkerberg Fransson case, 133–34 pre-existing Swedish system constitutional difficulties, 135 parallel jurisdiction, 134–35 principle more important than authority, 139–40 Swedish legal setting before Åkerberg Fransson case, 132–33 Res judicata, 174–80 Servitude Council of Europe efforts to reduce market, 118–20 EU foreign policy, 121–22 harmonization, 114 human trafficking distinguished, 111–12 positive obligations, 115 Sweden, 129 Sexual exploitation Council of Europe efforts to reduce market, 120–21 EU foreign policy, 124 Slavery ECtHR interpretation of Article 4, 109 EU foreign policy, 121–22 harmonization, 113–14 human trafficking distinguished, 110–11 positive obligations, 116 Spanish Constitution key principles raised by Melloni case, 2–5 Strategic Framework 2012 conclusions, 57–58 difficulties of implementation, 39 form and content, 46–48 responsible actors, 48–52 underlying questions, 38 Sweden see also Åkerberg Fransson case efforts to reduce trafficking, 125–29 future of tax system after Åkerberg Fransson case

Index combining of double sanction system, 219–23 conclusions, 219–23 general impact, 1–2 governmental committee final report 2013, 218–19 interpretation of ne bis in idem, 213–15 introduction, 211–12 questions answered by Supreme Court, 215–18 tax crime, 213 tax surcharges, 212 judicial review codification in 1980, 79–80 factors influencing decay of legislator, 88 future constitutional developments, 89–90 historical background, 76–78 increase in cases since 1990, 85 introduction, 75 issues arising in case law, 80–85 method by which courts performed review, 85–87 possible consequences of extending review, 87 role of parliament, 87 uncertainty of ‘what is law’, 89 varying role of courts, 88–89 ne bis in idem the challenge of constitutional pluralism, 136–37

229

constitutional difficulties, 135 judge-made mess before Åkerberg Fransson case, 133–34 obedience to CJEU, 137–139 pre-existing system of parallel jurisdiction, 134–35 principle more important than authority, 139–40 three constitutional orders, 131–32 Tax sanctions see also Åkerberg Fransson case future of Swedish system after Åkerberg Fransson case combining of double sanction system, 219–23 conclusions, 219–23 governmental committee final report 2013, 218–19 interpretation of ne bis in idem, 213–15 introduction, 211–12 questions answered by Supreme Court, 215–18 tax crime, 213 tax surcharges, 212 impact of Åkerberg Fransson case, 1–2 legal setting before Åkerberg Fransson case, 132–33 ne bis in idem as general principle, 143–145 Trafficking see Human trafficking