Hungarian Yearbook of International Law and European Law 2013 [4 ed.] 9789460948039, 9789462360709

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Hungarian Yearbook of International Law and European Law 2013

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Hungarian Yearbook of International Law and European Law 2013 Marcel Szabó (Editor-in-Chief) Petra Lea Láncos Réka Varga

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

ISBN 978-94-6236-070-9 ISBN 978-94-6094-803-9 (E-book) © 2014 The authors | Eleven International Publishing This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or ­otherwise, without the prior permission of the publisher.

Printed in The Netherlands

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Table of Contents Contributorsix Introductionxi Part I (Thematic Part): New Values after Lisbon

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1 Social Europe after Lisbon: Putting the ‘Social’ into the ‘Market Economy’ Catherine Barnard

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2 The Implementation of Security Council Resolutions in the European Union Revisited Eva Nanopoulos

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3 On Myths and Miracles: The EU and Its Possible Accession to the ECHR Jan Klabbers

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4 The International Responsibility of the European Union: a Basic Interpretive Pattern Ottavio Quirico

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5 Does the Emperor Really Have New Clothes? A Critical Assessment of the Post-Lisbon Regime of Division of Competences Balázs Fekete

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6 From the Principle of Linguistic Diversity to Enforceable Language Rights in the European Union Petra Lea Láncos

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Part II Forum: The Sólyom Case

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Hungary versus Slovakia – EU Membership versus Sovereign Statehood Ernő Várnay

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Table of Contents 8

Is László Sólyom a European Citizen? Hungary versus Slovak Republic Petra Bárd

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Part III Developments in International Law

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9 International Law at the European Court of Justice: A Self-Contained Regime or an Escher Triangle Tamas Vince Ádány

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Treaty Interpretation by Relying upon Other International Legal Norms László Blutman

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11 International Discussions on the Progressive Realization of the Human Rights to Safe Drinking Water and Sanitation Erzsébet Kardos Kaponyi

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12 Old-Age Discrimination: The Age-Blindness of International Human Rights Law Adrienne Komanovics

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13 Questions of Environmental Protection in the Practice of the European Court of Human Rights Sándor Szemesi

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14 The Case of Franz Joseph and Lajos Kossuth before the English Court of Chancery Marcel Szabó

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Part IV Developments in European Law

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15 The European Union as a Source of Public International Law Penelope Nevill

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16 Gunpowder for Court Battles: Access to Institution Documents in the Administrative Procedure, under Regulation 1049/2001, before the EU Courts and National Courts Viktor Łuszcz

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Table of Contents 17 Union Citizenship: Fundamental Status and Fundamental Rights Analysis of the Recent Jurisprudence of the Court Related to Union Citizenship Laura Gyeney 18 The Personal Law of Companies and the Freedom of Establishment under EU Law Csongor István Nagy

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Protection of European Citizens in Third States under Article 23 TFEU Imola Schiffner

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Part V Hungarian State Practice

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20 La loi sur le Traité de Lisbonne devant la Cour Constitutionnelle de Hongrie Péter Kovács

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21 Multilevel Protection of Fundamental Rights in the European Union and in Hungary Elisabeth Sándor-Szalay and Ágoston Mohay

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22 Enforceability of the European Convention on Human Rights by Ordinary Courts in Hungary Máté Mohácsi

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23 Regulating Local Border Traffic in the European Union Tamás Molnár State Acts and Responsibility in the Hungarian-Azeri-Armenian Triangle of the Safarov Case Csaba Törő

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25 Facilitating War Crimes Procedures in Hungary: The New Criminal Code and Lex Biszku 491 Réka Varga

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Table of Contents Part VI Review of Hungarian Scholarly Literature

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26 A Whole Image or a Few Pieces of Mosaic? Bartha Ildikó

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27 The Latest Hungarian Textbook: A Successful Introduction to EU Law Dániel Bán 28 Nagy Boldizsár, A Magyar Menekültjog és Menekültügy a Rendszerváltozástól az Európai Unióba Lépésig – Erkölcsi, ­Politikai-filozófiai és Jogi Vizsgálódások Eszter Kirs Index

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Contributors Chairman of the Editorial Board: Prof. Péter Kovács (Pázmány Catholic University, Budapest; Constitutional Court of Hungary) Members of the Editorial Board: László Blutman (University of Szeged) András Jakab (Pázmány Catholic University, Budapest; Hungarian Academy of Sciences – Institute for Legal Studies) Gábor Kardos (ELTE University, Budapest) Erzsébet Kardos Kaponyi (Corvinus University, Budapest) Eszter Kirs (Miskolc University) Judit Lévayné Fazekas (University of Miskolc) András Osztovits (Károli Gáspár University of the Reformed Church, Budapest) Csaba Pákozdy (Ministry of Foreign Affairs of Hungary) Gábor Sulyok (Széchenyi István University, Győr) Elisabeth Sándor-Szalay (University of Pécs) Ernő Várnay (University of Debrecen) Editor-in-Chief: Marcel Szabó (Pázmány Catholic University, Budapest; Office of the Parliamentary Commissioner) Editors: Petra Lea Láncos (Pázmány Catholic University, Budapest) Réka Varga (Pázmány Catholic University, Budapest) Peer Reviewers: Zsófia Asztalos (University of Miskolc) Petra Bárd (Central European University, Budapest) Christina Binder (University of Vienna) László Burián (Pázmány Catholic University, Budapest) Nóra Chronowski (University of Pécs) Erzsébet Csatlós (University of Szeged)

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Contributors Dezső Tamás Czigler (National University of Public Service, Budapest) Tomas Dubowski (University of Bialystok) Gilbert Gornig (Philipps-Universität, Marburg) Veronika Greksza (University of Pécs) Holger Hestermeyer (Max Planck Institute) Balázs Horváthy (Hungarian Academy of Sciences Institute for Legal Studies) Hubert Isak (Karl-Franzens-Universität, Graz) Gábor Kajtár (ELTE University, Budapest) András Koltay (Pázmány Catholic University, Budapest) Dobromir Mihajlov (Constitutional Court of Hungary) László Milassin (Széchenyi István University, Győr) Levente Nyakas (Károli Gáspár University of the Reformed Church, Budapest) Katalin Raffai (Pázmány Catholic University, Budapest) Rita Rácz (Miskolc University) Hannes Roesler (Max Planck Institute) Orsolya Salát (ELTE University, Budapest) Maja Smrkolj (Max Planck Institute) Réka Sommsich (ELTE University, Budapest) Sarolta Szabó (Pázmány Catholic University, Budapest) Pál Szilágyi (Pázmány Catholic University, Budapest) Zoltán Tallódi (Ministry of Public Administration and Justice, Hungary) Judit Tóth (University of Szeged) László Valki (ELTE University, Budapest) Erika de Wet (University of Pretoria) Márton Leó Zaccaria (University of Debrecen)

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Introduction Dear Reader, It is with great pleasure that I invite you to read the first edition of the Hungarian Yearbook of International Law and European Law. Although the community of Hungarian international lawyers and EU lawyers had always been very active, the publication of a yearbook has not materialized until today. This publication is especially meaningful, since it has been compiled in the common effort of all Hungarian law faculties’ departments for international and European law. We are therefore proud to present to you this first edition, which aspires to reflect the work of the entire Hungarian community of lawyers dealing with these areas of law. The elaboration of a Hungarian yearbook summarizing international law and European law developments is highly topical for several reasons. First, Hungary, as a member of the ­international community, is increasingly facing challenges posed by the rapid developments in international and EU law. Secondly, EU law and international law themselves are undergoing deep changes and facing great challenges, such as the interchange between these two fields of law, an increasing role of international law in national law-making as well the growing demand of the European Union towards its member states to adhere to the basic values of the Union. This is why we have chosen ‘EU values’ as the topical question of the first edition, drawing highly esteemed scholars of international law and European law into our debate, such as Catherine Barnard or Jan Klabbers. At the same time, the Yearbook also seeks to reflect upon the above-mentioned topical issues – from a Hungarian point of view. In addition to current general legal developments, the Yearbook seeks to provide an analysis of the main legal questions Hungary has faced this year, with the hope that it will help shed light on the Hungarian legal approaches to these problems of European law and international law. A further objective of the Yearbook is to provide an insight into Hungarian legislation and judicial and other practice, with a link to international law or European law. Writings of both academics and practitioners are included in order to give a full overview of how international and EU law are implemented and applied in Hungary. Various articles on Constitutional Court decisions and on implementation issues are therefore included in this edition. The future editions of the Yearbook will follow the set-up reflected in the this first edition. ­Every year the Editorial Board will select a topical issue for deeper analysis (thematic part). The editors shall invite renowned academics and experts to elaborate on the given topic. The parts devoted to the developments in international and European law will be xi

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Introduction followed by an analysis of the given year’s state practice. Finally, new publications by Hungarian authors of the given year will be introduced in the form of book reviews. I sincerely hope the Yearbook will contribute to a more complete understanding of the Hungarian legal approaches and dilemmas in the fields of international and European law, and provide a basis for a more inclusive and intensive discussion in this field. Marcel Szabó Editor-in-Chief

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Part I  (Thematic Part): New Values after Lisbon

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Social Europe after Lisbon: Putting the ‘Social’ into the ‘Market Economy’

Catherine Barnard* 1.1 Introduction The Working Group on Social Europe, set up late in the day as part of the Convention process, mooted a number of values that should be listed in the Treaties to help reinforce the European Union’s (EU) social face. These values subsequently appeared in the Constitutional Treaty and finally in the Lisbon Treaty: solidarity, social justice and the social market economy. This is very different from the position under the Treaty of Rome in 1957, when social questions were not considered matters of EU law at all: the view at that time was that economic integration realised by the four freedoms would in time ensure the optimum allocation of resources throughout the Union, the optimum rate of economic growth and thus an optimum social system.1 In other words, social progress would be the consequence of growth, not an input into that growth. Implicit in this assumption was the belief that social policy remained a domestic ­matter.2 This argument was sustainable so long as national markets were relatively closed and national budgets independent. However, once nations created a common currency and joined in a single market, then social policy in one country became relevant to other nations.3 This was brought into sharp focus by the debate surrounding the Polish plumber in the context of the Services Directive 2006/1234 and more recently the controversial – and much discussed – decisions of the Court of Justice in Viking and Laval.5 These cases and their progeny highlighted just how deep the reach of the internal market into national *

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Catherine Barnard, MA (Cantab), L.LM. (EUI), Ph.D. (Cantab), is a Professor in European Union and Employment Law at the University of Cambridge and a fellow of Trinity College. She specialises in EU law, employment law and discrimination law. She is co-director of the Centre for European Legal Studies at Cambridge, and the author of EU Employment Law (4th edn) OUP, Oxford, 2012 and The Substantive Law of the EU: The Four Freedoms (4th edn.), OUP, Oxford, 2013. M. Shanks, ‘Introductory Article: The Social Policy of the European Community’, 14 CML Rev. 1977, p. 375. C. Joerges & F. Rödl, ‘Informal Politics, Formalised Law and the “Social Deficit” of European Integration: Reflections after the Judgments of the ECJ in Viking and Laval’, 15 ELJ, 2009, pp. 1, 3-4. D. Trubek & L. Trubek, ‘Hard and Soft Law in the Construction of Social Europe: The Role of the Open Method of Coordination’, 11 ELJ 2005, pp. 343, 345. [2006] OJ L376/36. Case C-438/05, Viking Line ABP v. The International Transport Workers’ Federation, the Finnish Seaman’s Union [2007] ECR I-10779; Case C-341/05 Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet [2007] ECR I-11767.

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Catherine Barnard social systems had become and confirmed the fundamental instability of the initial compromise contained in the Treaty of Rome: social policy was no longer a purely domestic matter, it was an EU issue and one that risked being sacrificed on the altar of the internal market, unless steps were taken to protect it. This is where the Lisbon Treaty comes in. First, it introduced a new aim for the EU in ­Article 3(3) Treaty on European Union (hereinafter ‘TEU’), first paragraph, to work for ‘a highly competitive social market economy, aiming at full employment and ­social progress’. Article 3(3), second paragraph, adds that The Union shall combat social exclusion and discrimination, and shall promote social justice and protection of equality between men and women, solidarity between generations and protection of the rights of the child. These values suggest – or at least provide the excuse for – a reconsideration of the balance between the claims of the internal market and the needs for a national social policy. Second, Article 6(1) TEU incorporated the Charter of Fundamental Rights (hereinafter ‘CFR’) into EU law. Despite the controversy surrounding the supposed dichotomy between civil and political rights and social and economic principles, introduced by Article 52(5) CFR and the UK/Poland so-called ‘opt-out’ in Protocol No. 30,6 the fact is that the Charter significantly raises the profile of social rights. For many commentators, this suggests that since social rights are included in the same document as economic (and civil and political) rights, they should be more evenly balanced with. This chapter begins by considering the meaning of the phrase ‘social market economy’ (Section 1.2). It then considers how the court, while thinking it was actually balancing the social with the economic domain in Viking and Laval, failed to deliver this in practice, and how the structure of the single market reasoning deployed inevitably prioritised the economic over the social (Section 1.3). Section 1.4 examines the proposal made by the Advocate General in Commission v. Germany (occupational pensions),7 one of the first post-Lisbon cases where fundamental freedoms had to be balanced against fundamental rights, suggesting that the two can be reconciled through the principle of proportionality, drawing on the German constitutional law tradition of ‘practical concordance’. It will be argued that, while this type of balancing is appealing, it may still result in the economic interests of the EU in attaining the single market prevailing over the social interests of the member states, particularly in ‘hard’ cases involving, for example, collective action. It will therefore be argued that the principle of proportionality itself may need to be imbued with some of the EU’s values in order to give meaning to the social dimension of the ‘market economy’ (Section 1.5). Section 1.6 concludes. 6 See Saaedi [2010] EWCA Civ 990, para. 8 and also Joined Cases C-411/10 and C-493/10 NS [2011] ECR I-000. 7 Case C-271/08, Commission v. Germany [2010] ECR I-7091.

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  1  Social Europe after Lisbon: Putting the ‘Social’ into the ‘Market Economy’ 1.2  Social Market Economy One of the most remarkable changes introduced by the Lisbon Treaty was the inclusion of ‘a highly competitive social market economy’ as an aim of the EU. This aim was introduced by the German representatives on the Convention and reflects a linguistic symbol for the German model (Modell Deutschland) which flourished during the fifties and sixties . . . It is widely seen as both economically successful and stable as well as socially protective and progressive.8 Joerges and Rödl explore the term in their paper “‘Social Market Economy’ as Europe’s S­ ocial Model?.” They say that the invention of the term ‘social market economy’ is attributed to Alfred Müller-Armack, who was secretary of state to the Minister of Economic Affairs, Ludwig Erhard, who in turn was the father of the German economic miracle. ­Müller-Armack also represented the Federal Republic of Germany as chief negotiator of the Treaty of Rome. He argued that the ordo-liberal focus on the legal framework for a market economy (whereby the state guaranteed freedom of contract, individual property rights, freedom of occupation and trade, free movement of persons and effective legal protection of those rights and freedoms)9 was too limited. He therefore called for an additional ‘system of social and societal measures geared to market requirements’ or, putting it another way, combining ‘the principle of market freedom with the principle of social balance.’ Joerges and Rödl then identify three ways in which, according to Müller-Armack, the realization of the social market economy leads to the infusion of market economy with social fabric. First, he proposed that a market economy that is structured according to the principles of ordo-liberalism generated social effects automatically and directly. As we have seen, this was reflected in the original conception of the common market where, as a result of increased prosperity generated by the realization of a common market, social prosperity would ensue. This is one of the reasons why the EU-10 were keen to join the EU in 2004 and 2007: unrestricted access to the markets in the EU-15 would help improve prosperity in the EU-10 (as well as providing an injection of competition into the markets of the EU-15, with the consequent economic benefits which would accrue to those states too). However, establishing a market economy was not enough. Müller-Armack therefore ­argued, secondly, that the concept of the social market economy promoted additional i­ nterventionist state measures and polices, which were to serve the social balance of s­ ociety, including ‘approximate full employment’, redistributive policies (welfare, pensions, subsidies for homeowners) and other social instruments such as fixing minimum wages, albeit that all social 8 C. Joerges & F. Rödl, ‘“Social Market Economy” as Europe’s Social Model?’, EUI Working Paper Law No. 2004/8, p. 18. 9 Ibid., p. 13.

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Catherine Barnard policies would be subordinated to the functionality of the market mechanism. Therefore, taxation could be progressive but not excessive, rents could be subsidised but not fixed. Thirdly, Müller-Armack envisaged ‘societal polices’ aimed at combating the social isolation of the individual in the face of big business. Such policies included increased public investment in higher education, currency stability to protect individuals’ savings and the expansion of public services. Clearly, Müller-Armack’s ambitious vision of a social market economy was not realisable as a whole at EU level, largely due to a lack of competence as well as budgetary capacity to deliver key elements of the second and third strands. However, his vision does suggest that the social and the economic spheres are not necessarily in opposition but can work in conjunction.10 The question, then, was whether the Treaty, as interpreted by the court, was capable of delivering in any way on this vision. Viking, a pre-Lisbon case, suggested not.

1.3 Viking The facts of Viking are well known: a Finnish company wanted to reflag its vessel, the Rosella, under the Estonian flag so that it could staff the ship with an Estonian crew to be paid considerably less than the existing Finnish crew. The International Transport ­Workers’ Federation (hereinafter ITF) told its affiliates to boycott the Rosella and to take other solidarity industrial action. Viking therefore sought an injunction in the English High Court, restraining the ITF and the Finnish Seaman’s Union (hereinafter FSU), now threatening strike action, from breaching Article 49 of the Treaty on the functioning of the European Union (hereinafter TFEU). For the Court of Justice, these cases posed a major challenge as to how to reconcile the companies’ economic (EU) rights of free movement with the trade unions’ (domestic) social rights to take industrial action. If the Court found in favour of the companies, it would be accused of facilitating social dumping and undermining the European social model. If it found in favour of the trade unions, it would be accused of removing the comparative advantage enjoyed by the Eastern European countries – their cheaper labour and thus their means to greater prosperity. The Court addressed the question head on. It did not say that labour law and fundamental social rights fell outside the scope of Union law (the solution the legislature had adopted to secure agreement on the Services Directive 2006/123). However, it sweetened the pill by acknowledging for the first time that the right to take collective action, including the right to strike, was a fundamental right. Referring to Article 28 CFR, the Court did, however, say that the right was subject to limits laid down by both national law and practices 10 See also the Commission’s approach in COM(2000) 379, 17.

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  1  Social Europe after Lisbon: Putting the ‘Social’ into the ‘Market Economy’ (e.g. notice and balloting rules) and Union law (e.g. rules on free movement considered below). The Court also confirmed that Articles 49 TFEU applied to trade unions. Having established that EU law applied, the Court then followed its standard Säger ­market access approach (breach, justification and proportionality).11 It found that the collective ­action constituted a restriction on free movement and so breached Article 49. On justification, the Court began by noting that [s]ince the [Union] has thus not only an economic but also a social purpose, the rights under the provisions of the Treaty on the free movement of goods, persons, services and capital must be balanced against the objectives pursued by social policy, which include, as is clear from the first paragraph of Article [151 TFEU], inter alia, improved living and working conditions, so as to make possible their harmonisation while improvement is being maintained, proper social protection and dialogue between management and labour.12 The Court then noted that the right to take collective action for the protection of workers was an overriding reason of public interest provided that jobs or conditions of employment were jeopardized or under serious threat. On the facts, the Court suggested this was unlikely because Viking had given an undertaking that no Finnish workers would be made redundant. If, however, the trade unions could justify the collective action, the national court would have to apply the proportionality test. The Court then applied the strictest form of the proportionality test, unmitigated by any references to ‘margin of appreciation’. On the question of suitability, the Court said that collective action might be one of the main ways in which trade unions protected the interests of their members. However, on the question of necessity, the Court said it was for the national court to examine whether FSU had other means less restrictive of freedom of establishment to bring the collective negotiations with Viking to a successful conclusion, and whether FSU had exhausted those means before starting the collective action. In other words, industrial action should be the last resort. Since Viking has been settled we shall never know what conclusions the Court of Appeal would have reached on the questions of justification and proportionality. In Viking (and in the subsequent case of Laval) the Court conducted the balancing ­between the economic and social through justifications and proportionality. This is balance in name, not substance. The moment collective action is found to be a ‘restriction’ and thus in breach of Union law, the ‘social’ interests are on the back-foot, having to defend themselves from the economic. And the Court has made it difficult to defend the social interests due

11 Case C-76/90, Manfred Säger v. Dennemeyer & Co [1991] ECR 1-4221. 12 Para. 79.

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Catherine Barnard to its strict approach to justification and proportionality. So, despite the Court’s recognition of the right to strike in the early part of the judgment in Viking,13 the limitations on the exercise of that right, laid down by Union law, subsumed much of the substance of the right. The precedence of the economic over the social is pretty clear. From Müller-Armack’s perspective, the decisions in Viking and Laval may have merits: in his version of a social market economy, a market economy which is structured according to the principles of ordo-liberalism generates social effects automatically and directly. Transposing this to the Viking context, Estonian workers need to exploit their comparative ­advantage – their cheaper labour – in order to improve their own prosperity and the prosperity of the country as a whole. Thus the fundamental economic freedoms could be construed as fundamental (social) rights for these individuals and their (developing) countries. Yet this essentially liberal reading of the phrase social market economy is narrower than its modern conception. Take, for example, the Monti report. It says: The ECJ rulings pre-date the entry into force of the Lisbon Treaty, which ­explicitly sets out the social market economy as an objective for the Union and makes the European Charter [. . .] legally binding at Treaty level. These elements should shape a new legal context, in which the issues and the concerns raised by the trade unions should hopefully find an adequate response.14 In other words, the phrase ‘social market economy’ should ensure that there is still space for the maintenance of social standards set at national level by the original, EU-15 states. The internal market rules should not lead to a wide destruction of national social legislation in the old member states. The problem is that, so long as the Court maintains its Säger market access analysis, the interests of the four freedoms inevitably take precedence over other competing interests (e.g. the right to strike) since the presumption is that the ­national social concerns constitute a restriction on the four freedoms and are thus unlawful unless they can be justified and the defendant state or trade union can show that the steps taken are proportionate. In this respect, the Court of Justice’s approach stands in stark contrast to the Court of ­Human Rights’ (hereinafter ‘ECtHR’). Its starting point would have been with the fundamental right, namely the right to strike – recognised by the Court of Human Rights in Demir and Baykara and Enerji-Yapi Yol.15 The ECtHR’s view would have been that any restriction on the right to strike is unlawful unless it can be justified and the steps taken 13 Para. 44. 14 (last accessed 5 April 2013). 15 Demir and Baykara v. Turkey [2008] ECHR 1345, Appl. No. 34503/97, 12 November 2008. See also Enerji Yapi-Yol [2009] ECHR 2251, Appl. No. 68959/01) confirms right to strike part of Art. 11.

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  1  Social Europe after Lisbon: Putting the ‘Social’ into the ‘Market Economy’ are proportionate. This ‘human rights’ approach influenced the Advocate General in Commission v. Germany (occupational pensions).16 1.4  Commission v. Germany (Occupational Pensions) All member states recognize collective agreements as a source of labour law. In some member states, particularly in the Nordic countries, collective agreements provide the main source of employment rights, and the principle of autonomy of the social partners is keenly felt. What happens when this principle comes into conflict with internal market law? This was at issue in Commission v. Germany (occupational pensions). A number of local authorities entered into a collective agreement with the trade unions concerning the conversion of earnings into pension savings. The collective agreement identified a limited list of pension providers entrusted with implementing the salary conversion measure. Given the existence of this collective agreement, the local authorities did not issue a call for tenders, as required by Directive 2004/18 on public procurement, with the result that other pension providers were denied the chance to offer their services. The Commission therefore stepped in. So, as with Viking, this case pitted the fundamental (national) social right to engage in collective bargaining against the fundamental (EU) economic right to freedom to provide services. How can they be reconciled? Advocate General Trstenjak argued that [t]he approach adopted in Viking Lane and Laval un Partneri, according to which Community fundamental social rights as such may not justify – having due regard to the principle of proportionality – a restriction on a fundamental freedom but that a written or unwritten ground of justification incorporated within that fundamental right must, in addition, always be found, sits uncomfortably alongside the principle of equal ranking for fundamental rights and fundamental freedoms.17 She continued that Such an analytical approach suggests, in fact, the existence of a hierarchical relationship between fundamental freedoms and fundamental rights in which fundamental rights are subordinated to fundamental freedoms and, consequently, may restrict fundamental freedoms only with the assistance of a written or unwritten ground of justification.18 16 Case C-271/08, European Commission v. Germany (occupational pensions) [2010] ECR I-7091. 17 , para. 183. 18 Ibid., para. 184.

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Catherine Barnard She did not think that there was such a hierarchical relationship between fundamental freedoms and fundamental rights.19 She argued: 188. Therefore, if in an individual case, as a result of exercising a fundamental right, a fundamental freedom is restricted, a fair balance between both of those legal positions must be sought. In that regard, it must be presumed that the realisation of a fundamental freedom constitutes a legitimate objective which may limit a fundamental right. Conversely, however, the realisation of a fundamental right must be recognised also as a legitimate objective which may restrict a fundamental freedom. 189. For the purposes of drawing an exact boundary between fundamental freedoms and fundamental rights, the principle of proportionality is of particular importance. In that context, for the purposes of evaluating proportionality, in particular, a three-stage scheme of analysis must be deployed where (1) the appropriateness (2) the necessity and (3) the reasonableness of the measure in question must be reviewed. 190. A fair balance between fundamental rights and fundamental freedoms is ensured in the case of a conflict only when the restriction by a fundamental right on a fundamental freedom is not permitted to go beyond what is appropriate, necessary and reasonable to realise that fundamental right. Conversely, however, nor may the restriction on a fundamental right by a fundamental freedom go beyond what is appropriate, necessary and reasonable to realise the fundamental freedom.20 In other words, she appears to advocate a mix of the Court of Justice’s and the Court of Human Rights’ approach: first check whether the restriction on the fundamental freedom can be justified by a fundamental right and see whether the steps taken to protect the fundamental right are proportionate (the Court of Justice’s approach). Second, check whether the restriction on the fundamental right can be justified by a fundamental freedom and see whether the steps taken to protect the fundamental freedom are proportionate (the Court of Human Rights’ approach). In reaching this conclusion, the Advocate ­General may have been influenced by ‘practical concordance’ approach adopted by the German Constitutional Court to balancing fundamental rights of equal weight.21 The idea of ‘practical ­concordance’ is attributed to Professor Hesse. According to Donald Kommers:

19 Ibid., para. 186. 20 Ibid. 21 This argument is developed further in C. Barnard, ‘A Proportionate Response to Proportionality in the field of collective action’, ELRev, Vol. 37, 2012, p. 117.

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  1  Social Europe after Lisbon: Putting the ‘Social’ into the ‘Market Economy’ Professor Konrad Hesse wrote “The principle of the constitution’s unity requires the optimisation of (values in conflict): Both legal values need to be limited so that each can attain its optimal effect. In each concrete case, therefore, the limitations must satisfy the principle of proportionality; that is, they may not go any further than necessary to produce a concordance of both legal values.”22 Kommers continues: In its German version, proportionality is a three-step process. First, whenever Parliament enacts a law impinging on a basic right, the means used must be appropriate (eignung) to the achievement of a legitimate end. [. . .] Second, the means used to achieve a valid purpose must have a least restrictive effect (Erforderlichkeit) on a constitutional value. This test is applied flexibly and must meet the standard of rationality. As applied by the constitutional court, it is less than the ‘strict scrutiny’ and more than ‘minimum rationality’ test of American constitutional law. Finally, the means used must be proportionate to the end. The burden on the right must not be excessive relative to the benefit secured by the state’s objective (Zumutbarkeit). This three pronged test of proportionality seems fully compatible with, if not required by, the principle of practical concordance.23 Thus, the full three pronged test of proportionality is to be used to do the balancing, as Advocate General Trstenjak argued. There are some signs that her opinion influenced the Court when it said: Exercise of the fundamental right to bargain collectively must therefore be reconciled with the requirements stemming from the freedoms protected by the FEU Treaty, which in the present instance Directives 92/50 and 2004/18 are intended to implement, and be in accordance with the principle of proportionality [. . .]24 The Court said that reconciling the competing interests entails verification as to whether, when establishing the content of the collective agreement, a fair balance was struck in the account taken of the respective interests ­involved, namely enhancement of the level of the retirement pensions of the 22 D.P. Commers, The Constitutional Jurisprudence of the Federal Republic of Germany, 2nd edn, Duke University Press, 1997, p. 46. 23 Ibid. 24 Case C-271/08, European Commission v. Germany (occupational pensions) [2010] ECR I-7091, para. 44.

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Catherine Barnard workers concerned, on the one hand, and attainment of freedom of establishment and of the freedom to provide services, and opening up to competition at EU level, on the other.25 However, it concluded that a balance on the facts of this case had not been struck (because no procurement process had been undertaken at all) but then outlined a way for a better balance (opening up the tendering process but providing more space for contracting authorities to specify social conditions). Sceptics might argue that the language of balancing in fact disguises a court’s decision ultimately to prioritize the factor with which it has greatest sympathy (i.e. promoting the four freedoms) – in other words, dressing up policy choices in the garb of balancing. In Commission v. Germany, both the Advocate General and the Court ultimately concluded that the economic interest should prevail – the same result reached in Viking and Laval – so lots of rhetoric of rights and balancing but no change in outcome. There is a further problem: what happens when the competing interests are ultimately ­irreconcilable? Let us take the example of the Balpa case,26 one of the first cases to arise post Viking. BALPA, the British Airline Pilots’ Association, balloted its members for industrial action when it learned of British Airways’ (BA) plans to start an operation out of Paris using pilots paid less than the BA pilots. Had the strike action gone ahead, BA said it would lose £50 million a day in revenue and so it wanted the strike action stopped. So this case is reminiscent of the conflict in Viking: the fundamental (economic) right of BA to establish an operation in Paris under Article 49 TFEU as against the fundamental social right of the trade union to go on strike. How would the test of practical concordance work in this case? The human rights (European Court of Human Rights) approach would start from the premise that any restriction on the right to strike is unlawful but can be justified by the need to secure freedom of establishment, provided the steps taken to protect the freedom of establishment are proportionate. Since the strike had been the subject of a ballot in ­advance and would last for a number of days but would not be permanent, this might suggest that the right to strike should prevail. On the other hand, given the potentially devastating costs to the airline, even the Court of Human Rights might decide that there should be limitations on the right to strike in this case. This would certainly be the case with the Court of Justice’s approach. It would start from the premise that any restriction on the fundamental freedom to set up the operation in Paris is unlawful and can be

25 Ibid., para. 52. 26 This case was not reported but has been extensively discussed in the literature: e.g. R. O’Donoghue & B. Carr, ‘Dealing with Viking and Laval’, 11 CYELS, 2010, p. 123; K. Apps, ‘Damages Claims Against Trade Unions after Viking and Laval’, 34 ELRev, 2009, p. 141.

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  1  Social Europe after Lisbon: Putting the ‘Social’ into the ‘Market Economy’ justified by the fundamental right to strike, provided that the strike action is proportionate. Viking already tells us that strike action must be the last resort; the test of ‘no more restrictive than necessary’ might mean that the strike action should not cost an employer millions of pounds. This analysis suggests that there is little middle ground between the human-rights-based approach and the economic-based approach: a court will have to opt for one or the other – and a court such as the Court of Justice which has traditionally favoured the interests of the economic over the social might conclude that the cost of the strike is simply too high and so find that the strike has an excessive effect on the employer’s interests. This may even be the case with the rights-based approach. Those sitting frustratedly at the airport suffering the consequences of such strike action might also agree but, examining collective action through the prism of fundamental rights, reveals that the only effective sanction that airline pilots have is to withdraw their labour (‘working to rule’ is not possible since in a highly regulated industry they have to do that anyway) and it so happens that in their industry going on strike has instant, dramatic and costly effects (compared with, by contrast, a strike by, say, university teachers). As this example shows, what the proportionality/practical concordance review fails to ­address is whether the essence of the fundamental right is undermined. This lies at the heart of Tsakyrakis’ criticism of the proportionality principle: The balancing approach, in the form of the principle of proportionality, ­appears to pervert rather than elucidate human rights adjudication. With the balancing approach, we no longer ask what is right or wrong in a human rights case but, instead, try to investigate whether something is appropriate, adequate, intensive or far-reaching.27

1.5  Putting the Social Back In? So does this mean we should reject the balancing approach altogether? As we have seen, it has a well respected pedigree and, as Advocate General Trstenjak neatly pointed out, this approach characterised by an equal ranking of fundamental rights and fundamental freedoms in which the principle of proportionality serves as the basis for the resolution of conflicts between the exercise of fundamental freedoms and the exercise of fundamental rights would not constitute a

27 S. Tsakyrakis, ‘Proportionality: An assault on Human Rights’, .

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Catherine Barnard fundamental reorientation in the case-law. Instead, this analysis implies a return to the values already inherent in Schmidberger.28 In which case, should the proportionality principle itself be revisited? In the UK, the argument would be: abolish the proportionality review altogether. When strike action is contemplated in the UK there are onerous procedural rules to be complied with concerning, for example, the nature of the trade dispute, and balloting and notice requirements but, once satisfied, the British courts do not then subject the strike action to a substantive proportionality review. British trade unions would like a return to this position under EU law too, but the pass has already been sold on this.29 So at European level the question remains: can anything be done to improve the application of the proportionality principle to make it more suitable for collective action situations? The standard proportionality test reads: Is the measure (1) suitable; (2) necessary (i.e no more restrictive than necessary to achieve the aim (ie narrowly tailored); and (in some cases) (3) does the measure nevertheless have an excessive effect on the applicant’s interests? In order to accommodate the Balpa concern, should the third limb read: ‘Is the outcome compatible with the human right being protected (taking a pure cost-benefit analysis out of the equation?)’. So in the Balpa example, it could be argued that given that airline pilots have no alternative other than to strike to express their dissatisfaction with their employer’s conduct, and that since the right to strike is a fundamental right, denial of a right to strike in these circumstances would undermine the essence – or core – of the right. An analogous approach can be seen in the field of protection of intellectual property rights (hereinafter IPR). This pits the EU fundamental freedom (free movement of goods) against national property rights (property rights have also been deemed fundamental rights).30 Early in its case law, the Court distinguished between the existence of an IPR and its exercise. It said that, following Article 345 TFEU, EU law did not affect the existence of an IPR recognized by the law of a member state, but it did regulate its exercise. For example, in Deutsche Grammophon, a case concerning copyright, the Court said: although the Treaty does not affect the existence of rights recognized by the legislation of a Member State with regard to industrial and commercial property, the exercise of such rights may nevertheless fall within the prohibitions laid down by the Treaty. Although it permits prohibitions or restrictions on the free movement of products, which are justified for the purpose of protecting industrial and commercial property, Article [36 TFEU] only admits 28 Case C-112/00, Schmidberger v. Austria [2003] ECR I-5659. 29 See also the failed Monti II proposal: COM(2012) 130. 30 See Art. 17 CFR and for a fuller discussion, see .

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  1  Social Europe after Lisbon: Putting the ‘Social’ into the ‘Market Economy’ derogations from that freedom to the extent to which they are justified for the purpose of safeguarding rights which constitute the specific subject-matter of such property.31 Thus, EU law recognizes the core of the property rights – its specific subject matter – but once that core has been protected the principle of free movement of goods (through the doctrine of exhaustion) prevails.32 Protecting the essence of the fundamental right also helps to explain the controversial decision in Ruiz-Zambrano.33 The case concerned a Colombian failed asylum seeker living and working in Belgium whom the Belgian authorities sought to deport. He argued that this would contravene EU law on citizenship since it would deprive his young children, Belgian nationals, of their EU citizen rights. The member states argued that this was a wholly internal situation so EU law did not apply. The Court said that Article 20 TFEU “confers the status of citizen of the Union on every person holding the nationality of a Member State”.34 This applied to Mr Ruiz Zambrano’s children who possessed Belgian nationality. The Court then said: 42. In those circumstances, Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. 43 A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.35 The Court then concluded that a refusal to grant a resident to a Third Country National (TCN) with EU national children would lead to ‘a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents’. This decision can be contrasted with in McCarthy,36 a case concerning a British woman who also held Irish nationality but who had never left the UK, she wished to rely on EU

31 Case 78/70, Deutsche Grammophon v. Metro [1971] ECR 487, para. 11 (emphasis added). 32 See further C. Barnard, The Substantive Law of the EU: The Four Freedoms, Oxford University Press, Oxford, 2010, online chapter for further details. 33 Case C-34/09 [2011] ECR I-000. 34 Ibid., para. 40. 35 Ibid., paras 42 and 43. 36 Case C-434/09, McCarthy v. Secretary of State for the Home Department [2011] ECR I-3375.

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Catherine Barnard law to justify bringing her TCN husband in to the UK. The Court ruled that there was no evidence that the national measure had the effect of depriving Mrs McCarthy of the genuine enjoyment of the substance of the rights associated with her status as a Union citizen, or of impeding the exercise of her right to move and reside freely within the territory of the Member States, in accordance with Article 21 TFEU.37 In other words, because the essence of her status as an EU citizen had not been interfered with, Ms McCarthy, unlike Mr Ruiz Zambrano’s children, could not invoke EU law. These cases suggest that when faced with the argument in these absolute terms, the Court is willing to preserve the essence of the fundamental right. Translating this to the context of collective action, if strike action does mean that the costs to the employer are very grave, the Court should nevertheless allow such industrial action to go ahead where there is no other meaningful method for allowing workers to express their dissatisfaction.

1.6 Conclusions If the ‘social market economy’ is to be more that a rhetorical device, thought needs to be given as to how to operationalize the idea. Most working in the field of labour law would argue that the Säger market access approach has the potential to wreak significant havoc on national labour law rules. The Court has a number of tools in its toolbox to avoid the application of market access rules altogether. For example, in some cases it has said that there is no breach of the Treaty because the measures under review are rules of the game,38 or their effect on free movement is too indirect and uncertain,39 or that the rules do not considerably hinder market access.40 However, post Viking and Laval it seems unlikely that the Court will apply these approaches to transnational strike action. In other cases, the Court has found a breach but then applied a more relaxed test to proportionality. For example, in Trailers the Court said that the burden of proof cannot be so extensive as to require the Member States to prove, positively, that no other conceivable measure could enable that objective to be attained under the same conditions.41

37 Ibid., para. 49. 38 Joined Cases C-51/96 and 191/96 Deliège v. Ligue francophone de Judo [2000] ECR I-2549. 39 C-190/98 Graf v. Filzmozer Maschinenbau GmbH [2000] ECR I-493. 40 Case C-110/05, Commission v. Italy (Trailers) [2009] ECR I-519, para. 37. 41 Ibid., para. 2 of Summary of the judgment.

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  1  Social Europe after Lisbon: Putting the ‘Social’ into the ‘Market Economy’ Yet, again in Viking, the Court could have referred to the margin of appreciation but failed to do so. Given, then, that the Court seems determined to apply the proportionality principle to strike action, there is a need to find a way to accommodate fundamental social rights into the proportionality review. This article has therefore suggested one possibility: incorporating a final check into the third limb of the proportionality review to see whether the essence of the fundamental right has been undermined. Serious thought needs to be given to this and other suggestions. Failure to do so will eventually bring EU law into conflict with other international organs, notably the International Labour Organization and the European Committee of Social Rights which are already taking a close interest in what the EU has required in terms of social conditionality by member states in receipt of a bailout.42

42 See e.g., ILO, High level committee report on Greece, ; General Federation of employees of the national electric power corporation (GENOP-DEI) and Confederation of Greek Civil Servants’ Trade Unions ­(ADEDY) v. Greece, Complaint No. 66/2011, .

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2

The Implementation of Security Council Resolutions in the European Union Revisited

Eva Nanopoulos* 2.1 Introduction This chapter looks at the interface between United Nations (UN) law and the law of the European Union (EU) in the context of the EU’s implementation of a series of UN ­Security Council (SC) Resolutions requiring members of the UN, including EU member states, to freeze the assets of individuals and groups identified by a SC Sanctions Committee as associated with Al-Qaida and the Taliban.1 For the sake of clarity, it focuses on the implementation of SC Resolution 1390 (2001), the instrument that maintained the UN sanctions regime in place after the fall of the Taliban in 2001. Resolution 1390 is part of a broader network of SC Resolutions imposing sanctions on the Taliban and Al-Qaida, but it is beyond the scope of this contribution to discuss the entire legal regime.2 In the EU, this instrument was given effect by means of Common Position 2002/402/CFSP3 and Regulation 881/2002,4 which was subsequently amended by Regulation 1286/2009.5 The chapter proposes a solution to the problem of guaranteeing the effective i­ mplementation of the UN sanctions regime within the legal parameters and constraints imposed by the

* 1

2 3 4 5

Bob Alexander Fellow and Lecturer in Law at King’s College, Cambridge, where she is also acting as D ­ irector of Studies in Law and Equal Opportunities Tutor. The UN Taliban regime and the Sanctions Committee were established by SC Res. 1267 (1999). At first, the Committee was established to ensure the proper implementation of the sanctions. After SC Res. 1333 (2000) expanded the regime to cover Osama bin Laden and his associates, including members of the Al-Qaida organization, the Sanctions Committee was assigned the task of maintaining a list of such p ­ ersons on the basis of information provided to it by states and international organizations. More recently, UNSC Resolutions 1988 (2011) and 1989 (2011) split the regime into two: the UN Al-Qaida regime and the UN Taliban regime. Therefore, the Taliban are now subject to a separate regime. Common Position 2002/402/CFSP, OJ 2002 L 169/4. Council Regulation 881/2002, OJ 2002 L 139/9. Council Regulation 1286/2009, OJ 2009 L346/42.

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Eva Nanopoulos EU legal order. The issue arose as a result of the landmark ruling6 of the Court of Justice (ECJ) in Kadi I. Kadi was included on the list of the Sanctions Committee in 2001. Action at EU level followed, and Kadi sought annulment of the sanctions imposed upon him claiming, inter alia, that they were adopted in breach of his fundamental rights. At first instance, the General Court (GC) declined jurisdiction to review Regulation 881/2002 in the light of EU law on the grounds that it was mandated by a SC Resolution to which the institutions were bound to give effect and which left them virtually no leeway in the implementation process.7 The only caveat, according to the GC, was review on the basis of Jus Cogens, a body of non-derogable norms binding the international community as a whole, including the SC.8 No violation was however found; the GC upheld the validity of the sanctions imposed upon Kadi.9 The decision was overruled on appeal.10 The ECJ’s starting point was the autonomy of the EU legal order and the basic principle that the Union is founded on the rule of law. This, according to the Court, meant that no international agreement can alter the principle that the institutions must be subject to review for the compatibility of their acts with the Treaties, including with EU fundamental rights.11 It was thus irrelevant that the sanctions found their origin in, or were mandated by, a Resolution of the SC: the ECJ annulled the measures imposed upon Kadi on the ground that they breached due process rights and the right to property. Obviously conscious of the security implications

6 M. Zgonec-Rozeg, ‘Case note: Joined Cases C-402/05 P & C-415/05 P’, 103 AJIL 2009, p. 305, at p. 308; C. Deirdre & C. Eckes, ‘The Kadi Case: Mapping the Boundaries between the Executive and the Judiciary in Europe’, 5 I.O.L.R. 2008, p. 365. Tridimas and Gutierrez-Fons describe it as the most important judgment ever delivered on the relationship between international law and EU (then Community) law. See T. Tridimas & J.A. Gutierrez-Fons, ‘EU Law, International Law and Economic Sanctions against Terrorism: The Judiciary in Distress?’, 32 Fordham Int’l L.J. 2008, p. 660. Others describe it as significant but not ground-breaking in that respect. See P. J. Cardwell, D. French & N.D. White, ‘Case Comment: Kadi v. Council of the European Union (C-402/05 P)’, 58 ICLQ 2009, p. 229, at p. 233. Others praise it for its contribution to the debate on the fragmentation of international law. See S. Besson, ‘European Legal Pluralism after Kadi’, 5 EuConst 2009, p. 237. 7 Judgment of 21 September 2005 in Case T-315/01, Kadi v. Council and Commission (Kadi I) [2005] II-3649. 8 A similar approach was then taken in Switzerland. See Switzerland, Federal Tribunal, Case 1A 45/2005 (Schweizer Bundesgericht) Youssef Mustapha Nada v. Staatssekretariat für Wirtschaft, 14 November 2007, 133 BGE II 450. 9 The judgment has been subject to severe criticisms. See G. Porretto, ‘The European Union, Counter-­ Terrorism Sanctions against Individuals and Human Rights Protection’, in P. Mathew & M. Gani (eds.), Fresh Perspectives on the “War on Terror”, ANU E Press, 2008; P. Eeckhout, ‘Community Terrorism Listings, ­Fundamental Rights, and UN Security Council Resolutions: In Search of the Right Fit’, 3 EuConst 2007, p. 183; W. Vlcek, ‘Acts to Combat the Financing of Terrorism: Common Foreign and Security Policy at the European Court of Justice’, 11 E.F.A. Rev. 2006, p. 491; M. Bulterman, ‘Fundamental Rights and the United Nations Financial Sanction Regime: The Kadi and Yusuf Judgments of the Court of First Instance of the European Communities’, 19 LJIL 2006, p. 753. 10 Judgment of 3 September 2008 in Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat v. Council and Commission (Kadi I) [2008] ECR I-6351. For an overview of the differences between the GC’s and the ECJ’s positions as regards the issues raised by the Kadi I litigation see N. Lavranos, “Joined Cases ­C-402/05P and C-415/05P”, 36 Legal Issues of Econ. Integration 2009, p. 157. 11 Joined Cases C-402/05 P and C-415/05 P Kadi I, at paras 281-282.

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  2  The Implementation of Security Council Resolutions of its decision, however, it granted the Council three months to remedy this inconsistency, a period during which Kadi’s assets remained frozen. The judgment of the ECJ in Kadi I thus makes clear that the EU cannot implement SC Resolutions that entail action contrary to EU fundamental rights. This raises a number of difficulties. From the perspective of the member states, annulment of the EU implementing measure risks engaging their international responsibility since they are bound, pursuant to Article 25 of the UN Charter, to carry out decisions of the SC. On a broader level, it risks questioning, incidentally, the legality of the underlying UN decision,12 as well as jeopardizing the authority of the SC and the broader UN enterprise. These considerations help to explain why, despite its human rights credentials,13 some discontent has been expressed with the ruling, not only by academics writing in the aftermath of Kadi I14 but also by the institutions, the member states and, quite remarkably, the GC.15 Two months after the judgment, the Commission stated that the sanctions imposed on Kadi remained justified.16 Kadi filed a second application for annulment with the GC, which initiated a second stage in the Kadi saga. Applying the principles laid down by the ECJ, the GC found that the sanctions continued to violate Kadi’s fundamental rights and annulled the Regulation in so far as it concerned the applicant.17 Clearly, however, the GC was not entirely convinced. The institutions had seized upon this opportunity to reopen the question of the relationship between the UN and the EU. While the GC felt compelled by the ECJ’s ruling in Kadi I to ensure the ‘full review’18 of the Regulation, it acknowledged that the criticisms of the ECJ’s judgment “were not without foundations”.19 Nevertheless, the GC held that it was for the ECJ to examine the respondents’ questions in future cases brought before it, and, if appropriate, to reverse its previous case law on the matter. The institutions 12 A. Tzanakopoulos, ‘Domestic Court Reactions to UN Security Council Sanctions’, in A. Reinisch (Ed.), Challenging Acts of International Organizations before National Courts, OUP, 2010, at p. 59. 13 N.T. Isiksel, ‘Fundamental Rights in the EU after Kadi and Al Barakaat’, 16 ELJ 2010, p. 551; N. Neuwahl, ‘L’Union Européennes et les Résolutions du Conseil de Sécurité des Nations Unies – Contrôle de la Légalité en Vertu des Droits de L’Homme et Autonomie de L’Organisation des Nations Unies’, 20 Revue Québécoise de Droit International 2007, p. 159. 14 See G. De Burca, ‘The European Court of Justice and the International Legal Order after Kadi’, 51 Harv. Int’l L.J. 1, 2010; L. Finlay, ‘Between a Rock and a Hard Place: The Kadi Decision and Judicial Review of ­Security Council Resolutions’, 18 Tul.J.Int’l & Comp. L. 477, 2010; E. Klein, ‘International Sanctions from a Human Rights Law Perspective: Some Observations on the Kadi Judgment of the European Court of J­ ustice’, 4 ­Intercultural Human Rights Law Review 111, 2009; A. Gattini, ‘Joined Cases C-402/05P & 415/05P’, 46 CML Rev. 213, 2009; L.M.M. Hinojosa, ‘Bad Law for Good Reasons: the Contradictions of the Kadi Judgment’, 5 I.O.L.R.339, 2008. 15 Although the GC did follow the approach of the ECJ in Case T-318/01. Othman v. Council and Commission [2009] ECR II-1627 and Joined Cases T-135/06 to T-138/06 Al-Faqih and Others v. Council, OJ 2010 C328/28. 16 Commission Regulation 1190/2008, OJ 2008 L322/25. 17 Case T-85/09, Kadi v. European Commission (Kadi II), Judgment of 30 September 2010, not yet reported. 18 Case T-85/09, Kadi II, at paras 125-126. The GC endorsed the ECJ’s conclusions in Joined Cases C-402/ 05 P and C-415/05 P, Kadi I. See Joined Cases C-402/05 P and C-415/05 P Kadi I, at para.326. 19 Case T-85/09, Kadi II, para.121.

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Eva Nanopoulos and the United Kingdom (UK) took up the GC’s suggestion and each appealed the decision to the ECJ.20 Their argument, essentially, is that the GC should have granted the Regulation immunity and/or, alternatively, that full judicial scrutiny was not, in the circumstances, the appropriate standard of review. The debate over the relationship between the UN and the EU, and what it entails in practice for the status and review of measures intended to give effect to Chapter VII Resolutions in the EU, is thus still very much alive. In a way, this chapter is another contribution to what appears to be an ongoing debate. Yet, the aim is not to take a firm position among the spectrum of opinions expressed on the ECJ’s ruling, but to offer a pragmatic solution to the issue of implementation of SC Resolutions in the EU. To that effect, the debate will be recast, perhaps in terms that do not necessarily give credit to all the broader issues at play. This contribution thus proceeds on the assumption that the relationship between UN law and EU law (and its concrete effects) is best analysed in the limited context in which it arises, namely, the now long established practice of the member states to act through the medium of the EU to give effect to UN sanctions regimes. It will therefore focus, not on the rules governing the relationship between UN law and EU law per se, but on the ‘triangular’ relationship21 between the UN, the EU and the member states. When viewed from that angle, Section 2.2 will show that once the member state agree to discharge their UN obligations collectively by means of an EU instrument, this can be held to create an EU law obligation for the EU institutions to give effect to the relevant SC Resolution. Section 2.3 examines the impact such a finding would have for judicial review. It argues that when faced with a challenge to the relevant EU implementing measure, the EU Courts should engage in a balancing exercise between that obligation and other requirements of EU primary law. Section 2.4 acknowledges that there are bound to be situations where these two set of obligations will prove impossible to reconcile. In these circumstances, however, it concludes that member states can still act to give effect to a UN mandate alone, subject to the most marginal scrutiny only. In the light of this, Section V draws some general observations on the status of SC Resolutions in the EU. 2.2  The Union’s Obligation to Give Effect to UN Sanction Regimes 2.2.1   No General Obligation In Kadi I, the ECJ did not explicitly consider whether the EU is bound by the UN Charter. This may have been a deliberate choice, prompted by its autonomy agenda. It was at any 20 Case C-595/10 P. UK and Northern Ireland v. Kadi, appeal brought on 16 December 2010; Case C-593/10 P, Council v. Kadi, appeal brought on 16 December 2010; Case C-584/10 P. Commission v. Kadi, appeal brought on 13 December 2010. 21 J.W. van Rossem, ‘Interaction between EU law and International Law in the Light of Intertanko and Kadi: The Dilemma of Norms Binding the Member States but not the Community’, 40 NYIL 2009, p. 183, at p. 204.

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  2  The Implementation of Security Council Resolutions rate convenient, for it avoided an examination of whether EU law has anything to say on the status of measures intended to implement SC Resolutions in the EU. There is agreement that the EU is not directly bound by the UN Charter under international law. As the GC recalled in Kadi I, the EU is not a member of the UN, nor an addressee of SC Resolutions, nor the successor of the member states’ rights and obligations under international law.22 And it would be arguably rather premature to speak of the UN Charter as customary international law. Neither can a general obligation to give effect to UN decisions be unequivocally derived from the EU Treaties. The treaty provisions that refer to the UN Charter commit the Union to the furtherance of UN principles and objectives but they do not appear to create legally enforceable obligations.23 In Kadi I, moreover, the GC had relied on what has come to be known as the doctrine of functional succession, whereby an international agreement can become binding on the institutions if the EU assumes the powers previously exercised by the member states in the area governed by the said agreement.24 Since then, the ECJ has however made clear that the doctrine only applies to cases where the EU has acquired powers in all the fields to which such an agreement relates.25 By contrast, the overlap between EU law and the UN Charter only materialises in the field of economic and financial sanctions;26 the member states remain the primary actors in all other areas governed by the UN Charter. The picture, however, appears rather different when one has regard to the principles and rules governing this particular area of EU activity.

2.3  The ‘CFSP/TFEU’ Mechanism The procedure for the adoption of economic sanctions in the EU is special, for it involves, quite uniquely, two stages. First, a unanimous political decision on the need for economic coercion is taken at the level of the Common Foreign and Security Policy (CFSP);

22 Case T-315/01, Kadi I, at para.192. 23 For a discussion see P. Eeckout, External Relations of the European Union. Legal and Constitutional Foundations, OUP, 2004, at pp. 436-444. Art. 3(5) TEU now also adds that the Union shall contribute “to the strict observance and the development of international law, including respect for the principles of the United ­Nations Charter”. 24 Judgment of 12 December 1972 in Joined Cases 21-24/72, International Fruit Company NV and others v. Produktschap voor Groenten en Fruit (International Fruit) [1972] ECR 1219. 25 Judgment of 3 June 2008 in Case C-308/06, Intertanko v. Secretary of State for Transport [2008] ECR I-4057; Judgment of 14 October 1980 in Case C-812/79, Attorney-General v. Juan C. Burgoa [1980] ECR-2787. 26 R. Schütze, ‘EC Law and International Agreements of the Member States – An Ambivalent Relationship?’ (2006-2007) 9 C.Y.E.L.S, 2006-2007, p. 387, at p. 403.

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Eva Nanopoulos sanctions are then imposed by means of EU Regulations adopted under Article 215 of the Treaty on the Functioning of the European Union (TFEU).27 To a large extent, the so-called ‘CFSP/TFEU’ bridge28 was inserted in the Treaties to ­establish a firm and uncontroversial basis for the EU to give effect to relevant Resolutions of the SC. Indeed, before the Treaty of Maastricht, the member states agreed that common action was needed (including when necessary to discharge their Charter obligations), under European Political Cooperation;29 that political decision was then by necessity implemented by means of a Community (EC) Regulation adopted under the Common Commercial Policy.30 In the light of the Treaty of Lisbon (TL), moreover, it is clear that the ‘CFSP/TFEU’ mechanism has been gradually transformed to match relevant developments at the level of the UN. Old ­Articles 60 and 301 of the Treaty establishing the European Community (TEU) (now Art. 215 TFEU) originally only expressly enabled the adoption of economic sanctions against third countries.31 In line with the introduction of ‘smart sanctions’ on the international plane, the TL amended those provisions to confer the Council an express power to impose restrictive measures on private actors,32 including on persons having no specific territorial basis (as was the case with the Taliban and Al-Qaida after the fall of the Taliban regime). The peculiar nature of this ‘CFSP/TFEU’ bridge was in fact noted by the ECJ. The Court observed that the coercive powers of the Union are conditioned by the prior adoption of a decision under the CFSP, which creates an obligation for the institutions to adopt the “measures necessitated by that act”.33 Where the purpose is to give effect to a SC Resolution, 27 Art. 215 TFEU provides: “Where a decision, adopted in accordance with Chapter 2 of Title V of the [TEU], provides for the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries, the Council, acting by a qualified majority on a joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and the Commission, shall adopt the necessary measures. It shall inform the European Parliament thereof. Where a decision adopted in accordance with Chapter 2 of Title V of the Treaty on European Union so provides, the Council may adopt restrictive measures under the procedure referred to in paragraph 1 against natural or legal persons and groups or non-State entities. [. . .]”. 28 This expression is borrowed from Professor Alan Dashwood. See in particular, A. Dashwood, “Mixity in the Era of the Treaty of Lisbon”, in C. Hillion & P. Koutrakos (Eds.), Mixed Agreements Revisited, Hart 2010. Before the TL, this was commonly referred as the “inter-pillar” mechanism/bridge. 29 The EPC was a forum where representatives of the member states met to discuss political issues of common concern. It was formalized by the 1970 Luxembourg Report. 30 For a detailed account of the history of sanctions in the EU see P. Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law: the Legal Regulation of Sanctions, Exports of Dual Use Goods and Armaments, Hart 2001. 31 Arts. 60 and 301 EC could be used to impose sanctions on people associated with the governing regime of a third country. If the relevant persons had no links to a specific geographical basis, Art. 308 EC was used alongside Arts. 60 EC and 301 EC to enable the Council to take the necessary measures. Art. 308 EC, provided: “If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community, and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.” 32 To that effect, a second paragraph was added to Art. 301 EC which is now Art. 215(2) TFEU. 33 Joined Cases C-402/05 P and C-415/05 P, Kadi I, at para. 296.

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  2  The Implementation of Security Council Resolutions the ECJ added, that obligation means that the EU must take “due account of the terms and objectives of the Resolution concerned and of the relevant obligations under the Charter [. . .] relating to such implementation”.34 There is, however, something rather odd about the Court’s approach. If the obligation enshrined in Article 215 TFEU is to take the measures necessitated by the CFSP decision, and if the CFSP decision requires the Union to take the measures necessary to give effect to a SC Resolution, does not it follow that the obligation imposed on the EU is actually to adopt the measures required by the SC Resolution?35 The ECJ offered no explanation for translating an obligation of result – to take the specific measures required by the CFSP decision – into some kind of best effort obligation when those measures find their origin in a Resolution of the SC. This is particularly surprising when read alongside the ECJ’s reaffirmation, in an earlier part of its judgment, that the EU must observe international law in the exercise of its powers.36 Why take note of the peculiar nature of the ‘CFSP/TFEU’ mechanism and the obligation provided for in Article 215 TFEU if the purpose was merely to re-state the status quo, i.e. that the EU institutions are required to take account of relevant provisions/ measures of international law when they adopt economic and financial sanctions? Admittedly, Article 215(2) TFEU merely states that the Council may adopt restrictive measures against individuals and hence falls short of the mandatory obligation enshrined in Article 215(1) TFEU governing the imposition of sanctions upon states. Yet, this distinction in the wording of Article 215 TFEU was not even discussed by the ECJ. And it does not alter the fact that the Council can impose sanctions on individuals only on the basis of a prior CFSP act and that it is limited to the adoption of the specific measures required by that act. The fact that this could translate into an obligation to comply with the terms of any UN Resolution to which the CFSP decision purports to give effect more clearly emerges when consideration is given to the relationship between the ‘CFSP/TFEU’ bridge and Article 347 TFEU, read in the light of the principle of loyal cooperation.37 2.4  Article 347 TFEU and the Duty of Loyal Cooperation Article 347 TFEU (old Art. 297 EC) imposes a duty of consultation upon the member states 34 Ibid., at para. 296. 35 Halberstam and Stein thus argue that the EU’s “obligation under Art. [215 TFEU] to implement the [CFSP] call for economic sanctions should suffice to commit the [Union’s] implementing measure to the observance of international law”. D. Halberstam & E. Stein, ‘The United Nations, the European Union, and the King of Sweden: Economic Sanctions and Individual Rights in a Plural World Order’, 46 CML Rev. 2009, p. 13, at pp. 65-66. 36 Joined Cases C-402/05 P and C-415/05 P, Kadi I, at para. 291. 37 Note also that the EU is under a duty to ensure consistency in its external action. In particular, under Art. 13(1) EU, the Union shall ensure the consistency of its policies and actions; while under Art. 21(3) TFEU it “shall ensure consistency between the different areas of its external action and between these and its other policies”.

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Eva Nanopoulos with a view to taking together the steps needed to prevent the functioning of the internal market being affected by measures which a Member State may be called upon to take [inter alia]in order to carry out obligations it has accepted for the purpose of maintaining peace and international security [emphasis added]. There is little doubt that such obligations include obligations prescribed in Chapter VII SC Resolutions. Admittedly, Article 347 TFEU mentions only national measures, not EU measures adopted to carry out UN decisions. But this is mainly because none of the scenarios which it describes (other scenarios include, for example, measures that member states may need to take to respond to a state of war or internal distress) were originally envisioned as capable of forming the basis of EU action.38 The story turned out rather differently as far as the implementation of UN sanctions regime is concerned.39 For more than 30 years, the practice has been for the EU to give effect to SC Resolutions calling for the imposition of economic and financial sanctions on behalf of the member states. As a result, the measures needed to discharge UN obligations and referred to in Article 347 TFEU are now effectively adopted by the EU, not the member states. This development, or transfer of power, did not necessarily render Article 347 TFEU completely irrelevant in relation to measures intended to give effect to UN mandated sanctions in the EU. Although it is no longer readily apparent, the choice for centralised EU action constitutes, in effect, the outcome of the duty of consultation provided for in ­Article 347 TFEU. This more clearly appears from the sanctions imposed against Argentina d ­ uring 40 41 the Falklands conflict. The preamble to Regulation 877/82 stated that following the measures imposed by the UK against Argentina, the member states consulted each other pursuant to Article 347 TFEU (then Art. 224 EEC)42 and reached the conclusion that ­coordinated action by means of a [Union] instrument was necessary.43 Through this formula, the link between the Article 347 TFEU duty of consultation and the EU sanctions as the “steps needed to prevent the functioning of the internal market being affected” by the implementation of UN obligations, was made. When an express legal basis was inserted in the Treaties for the adoption of economic sanctions, this link was arguably preserved, ­indeed institutionalised, by the ‘CFSP/TFEU’ mechanism. The member states 38 D. Bethlehem, ‘The European Union’, in V. Gowlland-Debbas (Ed.), National Implementation of United ­Nations Sanctions: A Comparative Study, Martinus Nijhoff, 2004. 39 Art. 347 TFEU was actually used by the member states only once, for the collective fulfilment of their obligation to resume economic relations with Rhodesia. 40 Koutrakos 2001, at p. 61. 41 Council Regulation 877/82, OJ 1982 L102/1. 42 Ibid., Recital 2. 43 Ibid., Recital 3.

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  2  The Implementation of Security Council Resolutions now consult each other under the framework of the CFSP, agree that common action is needed, inter alia, to prevent the functioning of the internal market being affected, and to this end, the measures which they are “called upon to take”44 under the relevant UN mandate are adopted by the EU under Article 215 TFEU. From that perspective, the ‘CFSP/ TFEU’ mechanism and the resulting EU sanctions are best conceived of as the exercise and outcome of the duty of consultation provided for in A ­ rticle 347 TFEU. Common centralised EU action is thus the expression of the member states’ fulfilment of their obligation under Article 347 TFEU to consult each other in order to prevent disruptions to the common market. The argument, then, is that fulfilment of the member states’ obligations under Article 347 TFEU creates a corresponding duty, reading Article 347 TFEU together with the principle of loyal cooperation which under Article 4(3) of the Treaty on the European Union (TEU)45 now also expressly refers to the loyalty owed by the EU institutions to the member states, for the EU institutions to ensure that the measures required by the relevant SC ­Resolution are properly implemented. This is an obligation of EU law, which the institutions owe to their member states as a result of the division of competences between them in the field of economic sanctions and which arises once the member states agree to discharge their Charter obligations through the medium of the EU as signified in the relevant CFSP act. The adoption of such an act would thereby triggers a duty for the Council to use its powers under Article 215 TFEU in such a way as to ensure that, notwithstanding the recourse to a Union instrument, the member states’ Charter obligations are adequately fulfilled. Applied to the facts of the Kadi case, this analysis would mean that once Common Position 2002/402 entrusted the Union with the task to give effect to the UN Taliban/Al-Qaida regime, the institutions became legally bound – reading Article 347 TFEU together with Article 4(3) TEU, to take the specific measures required by Resolution 1390, i.e. to freeze the assets of all those included on the list drawn up by the Sanctions Committee.

2.5  Effects on the Status and Review of EU Measures Implementing SC Resolutions If anything, the Kadi saga shows how significant the question of the binding effects of SC Resolutions can be in practice. The GC relied, among other things, on the duty of the institutions to carry out decisions of the SC to decline jurisdiction over Regulation 881/2002. The ECJ, on the other hand, paid little regard to the status of SC Resolutions

44 Art. 347 TFEU. 45 Art. 4(3) TEU provides: “Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. [. . .]”.

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Eva Nanopoulos in the EU46 and treated the relevant Regulation as any other act of the institutions for the purposes of judicial review. The present analysis would lead to yet a third option, halfway between these two positions. Contrary to the view of the GC, the obligation to give effect to SC Resolutions, itself derived from the Treaties, cannot absolve the institutions from compliance with their other duties under EU law and from the scrutiny of the Courts.47 Contrary to the somewhat rigid approach of the ECJ, however, it is argued that judicial review could consist of a balancing exercise between the institutions’ duty to respect fundamental rights, and their obligation to give effect to SC Resolutions the implementation of which has been entrusted to them by the member states.

2.5.1   Hierarchical Rank To say that the institutions are under a duty to implement Chapter VII Resolutions does not mean that in doing so, they become entirely absolved from judicial scrutiny. As the ECJ rightly recalled, the EU is based on the rule of law and the respect for fundamental rights. In other words, EU law imposes a number of conditions on the lawful exercise of power in the EU, which the institutions cannot avoid by invoking the obligations of their member states under international law. From that perspective, there was force in the ECJ’s finding that neither Article 351 TFEU,48 nor Article 347 TFEU, relieve the EU institutions from their duties under Article 6 TEU or indeed the EU Charter of Fundamental Rights. None of the Treaty provisions defining the powers of the EU judicature, moreover, makes special provision for the review of EU measures intended to implement Resolutions of the SC. Yet in Kadi I, the ECJ took the view that, were SC Resolutions to be classified in the hierarchy of norms operating in the EU Legal order, they would rank above secondary EU acts, but below EU primary law, in line with Article 218 TFEU.49 That would have arguably50 been the case if the UN Charter were among the treaties to which the Union is a party, which it is not. 46 Although some authors have read the judgment as a confirmation of the GC’s finding that UN law is binding on the institutions. See S. Griller, ‘International Law, Human Rights and the Community’s Autonomous Legal Order: Notes on the European Court of Justice Decision in Kadi’, 4 EuConst 2008, at p. 538. For a view that the ECJ on the contrary assumed that SC Resolutions do not bind the EU See Gattini 2009, at p. 230. 47 A. Hinarejos, ‘Recent Human Rights Developments in the EU Courts: The Charter of Fundamental Rights, the European Arrest Warrant and Terror Lists’, 7 H.R.L.Rev. 2007, p. 793. 48 Art. 351(1) TFEU provides that “the rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties”. 49 In Kadi II, the GC itself noted that this statement “has given rise to a number of questions”. See Case T-85/09, Kadi II, at para.120. 50 It is not precluded, however, that even if the UN Charter was an agreement to which Art. 218 TFEU could apply, the Charter would have had to be given special treatment on account of the special nature of that document for the international community.

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  2  The Implementation of Security Council Resolutions Article 218 TFEU has therefore little to say on the hierarchical status of measures intended to implement Resolutions of the SC and its effects on the jurisdiction of the Courts. In line with the findings of Section I, such measures would be covered instead by the duty of the institutions to give effect to UN decisions under Article 347 TFEU read together with Article 4(3) TEU. This is an obligation of primary EU law, as is the obligation enshrined in Article 6 REU regarding the protection of fundamental rights. There would thus be no grounds for Article 6 EU to be granted automatic precedence over the duty to carry out decisions of the SC, particularly since the latter obligation is but an aspect of the principle of loyal cooperation, itself a central tenet of the EU legal order. It would have been otherwise only it were established that EU fundamental rights, including the right to effective judicial protection, have acquired some kind of supra-constitutional status which places them above other governing principles of the EU legal order. As general principles of EU law, fundamental rights were originally perceived as equal to the founding Treaties.51 It would have been rather strange, especially in a hybrid legal order such as the EU, for principles developed by a judicial body, which itself derives its authority from the Treaties, to be granted a status superior to those principles which have received the express assent of the member states. Moreover, Article 6 REU now specifically provides that the rights and principles set out in the Charter “shall have the same legal value as the Treaties”. The coherence of the EU’s system of fundamental rights protection would be undermined if fundamental rights enjoyed a superior status when framed in terms of the general principles of EU law, but not when invoked through the medium of the Charter, in which case they appear to be equal to the Treaties.52 New Article 6 TEU should therefore be viewed as overturning any statement of the ECJ in Kadi I, which may have been interpreted as conferring a superior status on human rights.53 It may be added that if the ECJ were to grant these two set of obligations an equal hierarchical rank, it would not necessarily undermine the foundations of the EU legal order. Pursuant to Article 2 TEU, the Union is founded on the rule of law and respect for human rights; under Article 3 TEU, the Union is to contribute to peace, security, as well as respect for the principles of the UN Charter. Article 21(2) TEU states that “the Union shall respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the development and implementation of the different areas of the Union’s external action [. . .] and of the external aspects of its other policies”. These objectives include both the consolidation of human rights54 and the preservation of peace in accordance with the purposes and 51 See for instance, T. Tridimas, The General Principles of EU Law, 2nd edn, OUP, 2006, at p. 51. 52 Art. 6(3) TEU does not make any mention of the hierarchical status of fundamental rights as general principles of law in the EU legal order. 53 On the view that this was not in fact the ECJ’s intention see L. Peech, ‘A Union Founded on the Rule of Law: Meaning and Reality of the Rule of Law as a Constitutional Principle of EU law’, 6 EuConst 2010, at p. 365. 54 Art. 21(2)(b) REU.

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Eva Nanopoulos principles of the UN Charter.55 Thus both set of values, – the principles governing the protection of fundamental rights and those underpinning the UN Charter, should inform the exercise of power in the EU.

2.6  Effects in Practice: The Need for a Balancing Exercise This would mean that judicial review should consist of a balancing exercise ­between the duty to comply with relevant UN obligations and other requirements of EU law. Before examining the concrete implications of such a finding for cases like Kadi, it must be acknowledged that this balancing exercise would come into play only rarely, a consideration that also explains why, before Kadi I, the review of measures intended to implement SC Resolutions had raised relatively little controversy.56 First, the nature of the underlying UN obligation is often such that no conflict with EU law actually arises. A telling example is SC Resolution 1373 (2001) which requires states to freeze the funds of people associated with terrorist activity without actually identifying any particularindividual or group thereof: this is left for the member states and hence the EU institutions to decide. Faced with a challenge to the EU implementing measure, the GC annulled the sanctions on the ground that due process rights were not respected.57 Contrary to the situation in Kadi I, the GC noted, the decision to freeze the applicant’s assets was taken in the ­exercise of the institutions’ autonomous powers58 and was thus fully reviewable by the Courts. Likewise, UN state-sanctions regimes typically leave sufficient leeway for n ­ ational authorities to implement the relevant Resolutions in line with their domestic legal requirements. Secondly, the likelihood for conflict appears to be increasingly diminished by a presumption that, unless explicit language is used to the opposite effect, the SC does not intend to put members of the UN in breach of their human rights obligations. In the recent Al-Jedda v. UK case, the European Court of Human Rights (ECtHR) reiterated that the SC must act in accordance with the principles and purposes of the UN, which include the respect for, and promotion of, fundamental rights. The conclusion then drawn by the Strasbourg Court is worth quoting in full: [a]gainst this background, the Court considers that, in interpreting its resolutions, there must be a presumption that the [SC] does not intend to impose

55 Art. 21(2)(c) TEU. 56 See Judgment of 30 July 1996 in Case C-84/95, Bosphorus v. Minister for Transport, Energy and Communications, Ireland and the Attorney General [1996] ECR I-3953. 57 Judgment of 12 December 2006 in Case T-228/02, Organisation des Modjahedines du peuple d’Iran v. Council (OMPI) [2006] ECR II-4665. 58 Ibid., at paras 103 and 107.

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  2  The Implementation of Security Council Resolutions any obligation on Member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a [SC] Resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the [UN’s] important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the [SC] to intend States to take particular measures which would conflict with their obligations under international human rights law.59 In that respect, Resolution 1390 is somewhat of an isolated case – though admittedly one that allowed for the interface between the UN Charter, the EU and its member states to be fully tested, in that it imposes an unusually strict and clear-cut obligation on members of the UN.60 States have virtually no discretion in the implementation process: they have to freeze the funds of the individuals and groups designated by the Sanctions Committee. Given that a successful challenge to the sanctions would lead to the applicants’ assets ­being unfrozen, a direct clash arises between the EU institutions’ duty to give effect to the Resolution and the right of those affected by acts of the institutions to an effective remedy. Moreover, the nature of the obligation spelled out in Resolution 1390 arguably makes clear the SC’s intention to derogate, in this particular instance, from fundamental human rights. Thus here, the balancing exercise would come into play and require a balance to be struck between the right to effective judicial protection (which would in principle require a full review of the merits of anti-terrorism sanctions) and the requirement that the assets of the individual concerned be frozen in implementation of Resolution 1390. This may have a number of concrete implications for the Courts. It may affect, first, the standard or ­intensity of review. Thus, when called upon to examine the substantive basis for labelling a person a terrorist, the EU Courts would have to pay a degree of deference to the assessment of the Sanctions Committee. It may also, in certain exceptional circumstances, affect the scope of judicial review. So long as the UN does not offer a level of fundamental rights protection equivalent to that applying in the EU, the decision that a person is a terrorist cannot be left entirely to the UN for that would amount to granting precedence to the obligation to give effect to SC Resolutions over the protection of fundamental rights. But there may be instances where, although the EU Courts have not been provided with the full evidentiary basis of a designation, the information forwarded to them convincingly establishes that the person has connections with Al-Qaida. In such a case, the duty

59 Al Jedda v. United Kingdom (2011) 53 EHRR 23, at para. 102. 60 Although in the recent judgment of the ECtHR in Nada v. Switzerland, the Strasbourg still found that certain aspects of the UN sanctions regime left sufficient leeway to national implementing authorities to implement them in the light of Art. 8 ECHR. Nada v. Switzerland, Appl. No. 10593/08, 33 B.H.R.C. 453.

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Eva Nanopoulos to implement Resolution 1390 would militate in favour of the EU Courts’ upholding the EU implementing measures, even though a merits review would normally require them to scrutinise all the evidence which is relevant to the decision to freeze the funds of the individual or entity concerned. Moreover, as part of this balancing exercise, the EU Courts could take account of relevant developments at the level of the UN concerning due process standards (even if these fall short of the kind of review mechanism that would justify complete deference to the ­assessment of the Sanctions Committee along the lines of the Solange doctrine). Thus, some weight could for instance be given to the establishment of the Office of the Ombudsperson,61 which is responsible for dealing with claims for delisting, and the recent abandonment of the rule that a person can only be removed from the list by consensus. Instead, the principle is now that consensus is needed to block any recommendation for delisting put forward by the Ombudsperson, albeit that lacking such consensus, the matter falls back for consideration by the SC and is therefore subject to the veto of the permanent members.62 2.7 The Member States’ (Residual) Power to Implement Charter Obligations This is not to say that the recognition of an EU law obligation to implement certain UN decisions will solve all problematic cases. There are on the contrary bound to be situations where it will be impossible for the EU institutions to implement a SC Resolution without putting other principles of EU law unduly under strain and where the relevant EU implementing measure will have to be annulled. Following Kadi I, the argument was thus made that the judgment of the ECJ effectively puts the member states in a ‘Catch 22’ position,63 trapped between complying with their obligations under the Charter and hence acting in breach of EU law, or failing in their duty to carry out decisions of the SC in order to pay full respect to the requirements of the EU Legal order.64 Under this approach, there would be no place in the EU for the implementation of SC Resolutions which involves action contrary to EU law given that, if the EU implementing measure is annulled, EU law allegedly ­prevents the member states from discharging their Charter obligations themselves. 61 UNSC Resolution 1904 (2009). As originally established, the mechanism was not considered to fulfil the requirements of effective judicial protection. See Case T-85/09, Kadi II, at para. 128. 62 UNSC Resolution 1989 (2011), particularly paras 21-35. On these developments, see D. Tladi & G.Taylor, ‘On the Al-Qaida/Taliban Sanctions Regime: Due Process and Sunsetting’, 10 Chinese Journal of International Law 2011. 63 K.S. Ziegler, ‘Case Comment: Strengthening the Rule of Law, but Fragmenting International Law: the Kadi Decision of the ECJ from the Perspective of Human Rights’, 9 H.R.L.Rev 2009, p. 288, at p. 304; Deirdre & Eckes 2008. 64 A similar argument was raised by the Commission before the GC in Kadi II. From the perspective of the member states, the Commission stated, that conflict will need – by operation of Art. 103 UNC, to be resolved in favour of the implementation of Charter obligations. See Case T-85/09, Kadi II, at para. 100.

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  2  The Implementation of Security Council Resolutions But this is not necessarily an accurate description of the member states’ position. From the perspective of international law, the situation appears quite straightforward: Article 103 UNC65 grants priority to the implementation of SC Resolutions over conflicting EU obligations. This section will show that the primacy of UN decisions on the international sphere is, to some extent, preserved by the Treaties, insofar as they largely leave the member states free to discharge their Charter obligations, notwithstanding a possible incompatibility with EU law.66 It is beyond the scope of this contribution to examine the division of competences between the EU and the member states in the field of economic and financial sanctions in detail. However, for the purposes of the discussion below, it can be assumed that if the EU implementing act were annulled (and/or more broadly, in the absence of an EU law provision covering the field), the member states would regain their power to implement their Charter obligations alone. Indeed, given the need for a prior CFSP decision, the competence of the EU in this area can at best be described as shared between the EU and the member states. In fact, it is striking that despite the existence of Regulation 881/2002, some states, like the UK, maintain parallel domestic regimes which impose sanctions on those designated by the Sanctions Committee.

2.7.1    The Applicability of Article 347 TFEU Two provisions are potentially relevant to the adoption of national measures intended to implement Charter obligations: Article 347 TFEU and Article 351 TFEU. It can be r­ ecalled that Article 347 TFEU allows the member states to derogate from EU law, inter alia, in order to fulfil obligations that they have undertaken for the purpose of maintaining ­international peace and security, whilst Article 351 TFEU allows them do so in relation to obligations stemming from pre-Union agreements. Both provisions were examined by the GC and the ECJ in Kadi I. But neither of them made any attempt to establish which of those was most relevant to the issue at hand, albeit they were admittedly examining the legality of EU measures, and not national measures, intended to implement SC Resolutions. By contrast, authors like Gaja reject the applicability of Article 351 TFEU to the relationship between Charter obligations and EU law.67 There are three prongs to his argument: (i) G ­ ermany was not a member of the UN prior to its accession to the EU; (ii) the Charter 65 Art. 103 of the UN Charter reads: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” 66 The GC had already made the point that Arts. 347 TFEU and 351 TFEU entail a duty for the EU institutions, including the Courts, not to impede the performance of the member states obligations under the Charter. See Case T-315/01, Kadi I, at para.197. 67 For a discussion focusing instead on the effects of Art. 351 TFEU See: G. Martinico, O. Pollicino & V. Sciarabba, ‘Hands Off the Untouchable Core: A Constitutional Appraisal of the Kadi Case’, 11 E.J.L.R. 2009, p. 281.

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Eva Nanopoulos cannot be considered an agreement to which the Article 351(2) TFEU duty to remove any incompatibility between pre-Union commitments and those stemming from the Treaties applies and finally (iii) applying Article 351 TFEU would treat the Charter as any other pre-Union agreement in terms of how far it allows member states to depart from Union law. While ruling out completely the relevance of Article 351 TFEU may go a step too far, there is force in the argument that Charter obligations ought not to (and must not) be treated like any other international agreement in the EU – a point that is arguably reinforced by the very existence of Article 347 TFEU. The specific reference, in Article 347 TFEU, to obligations undertaken for the preservation of peace and security makes clear that the special status of SC Resolutions in the EU does not derive, at least solely, from their nature as pre-Union commitments, but mainly from the subject matter to which they relate. If Article 351 TFEU were truly meant to apply to SC Resolutions, there would have been little added value in a provision like Article 347 TFEU. The latter should thus be considered as lex specialis Article 351 TFEU when it comes to measures implementing Chapter VII Resolutions. It can also be noted that old Article 60 TEU on the Union’s power to adopt financial sanctions specified, in its second paragraph, that it was without prejudice to Article 347 TFEU.68 Although no such reference is made in new Article 215 TFEU, this nonetheless appears to confirm the relevance of Article 347 TFEU to the adoption of economic sanctions by the member states in pursuance of a UN mandate.

2.8  The Scope of the ‘Article 347 TFEU Derogation’ In Kadi I, the ECJ acknowledged that Articles 351 TFEU and 347 TFEU allowed certain provisions of EU law to be derogated from, but, crucially, that this did not extend to the core or foundational principles of the EU legal order enshrined in Article 6 TEU.69 The Court did not explain why or how it had reached this conclusion. It simply stated that Article 351 TFEU cannot prevent the review of EU secondary acts, which is at any rate irrelevant to the present discussion that focuses on the review of national, not Union measures, implementing SC Resolutions. Nor was any more attention paid to Article 347 TFEU. The opinion of Advocate General (AG) Maduro was, on this point, equally ambiguous. While he focused on the effects of Article 351 TFEU, he cited ex Article 60 TEU and Article 347 TFEU in a footnote as the basis upon which the member states could act to implement SC Resolutions alone. It is thus unclear whether his finding that Article 351 TFEU could not provide “a source of a possible derogation from Article [6 TEU]” was ­intended to cover Article 347 TFEU as well, or not. 68 Art. 60(2) TEU provided: “Without prejudice to Article 297 EC and as long as the Council has not taken measures pursuant to paragraph 1, a Member State may, for serious political reasons and on grounds of urgency, take unilateral measures against a third country with regard to capital movements and payments [. . .]”. 69 See Joined Cases C-402/05 P and C-415/05 P, Kadi I, at para. 303.

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  2  The Implementation of Security Council Resolutions On the contrary, a number of considerations70 in fact suggest that EU law imposes virtually no limits on the member states’ capacity to implement UN decisions. Or, in other words, that ­Article 347 TFEU should be read as allowing them to depart from the whole of EU law,71 if, and to the extent that, a SC Resolution so requires. In that regard, it must be recalled that fundamental rights do not necessarily benefit from a supra-constitutional status which would distinguish them from other core principles of the EU legal order. Thus, if it can be established that national measures implementing SC Resolutions are, on the basis of Article 347 TFEU, ­absolved from compliance with EU law, this would include, in principle, EU fundamental rights. This approach could find support, first, in the wording of Article 347 TFEU. For the sake of clarity it is worth reproducing the article in full: “Member States shall consult each other with a view to taking the steps needed to prevent the functioning of the internal market being affected by measures which a Member State may be called upon to take in the event of serious internal disturbances affecting the maintenance of law and order, in the event of war, serious international tension constituting a threat of war, or in order to carry out obligations it has accepted for the purpose of maintaining peace and international security.” The ECJ appears to have interpreted the reference to the internal market as meaning that ­Article 347 TFEU only allows derogations from the rules governing the common market. That reference, however, is linked to the duty of consultation, not to the measures that ­member states “may be called upon to take”. Article 347 TFEU indeed takes for granted the member states’ ability to take measures to alleviate a threat to their security and thus confirms that EU law does not impose any substantive constraint on their powers in these areas. The only limit Article 347 TFEU imposes is procedural in nature and arises only if there is a risk to the functioning of the common market; in those situations, member states must consult each other in order to find a way to avoid any disruption. Put more succinctly, the very raison d’être of Article 347 TFEU is to prevent the functioning of the internal market being affected, not to regulate the actions of the member states in the sensitive fields to which that provision refers. Moreover, if the reference to the common market were to be interpreted in the way advocated by the ECJ, Article 351 TFEU, which does not mention it at all, would ­arguably have a broader scope than Article 347 TFEU in terms of how far it allows the ­member states to derogate from Union law. Yet, not only did both the ECJ and the AG expressly reject the argument that Article 351 TFEU gives pre-Union agreements precedence over the protection of fundamental rights, but this would go against the spirit of this provision as a whole. While Article 351(1) TFEU allows member states to depart from EU law to honour their pre-Union commitments, paragraph 2 requires them to remove any incompatibility between 70 For a similar stance as to the special nature of Art. 347 TFEU see P. Koutrakos, ‘Is Article 297 EC a “Reserve of Sovereignty”?’, 37 CML Rev. 2000, p. 1339. 71 Trybus notes that “in these extreme situations the response to a threat takes precedence over the entirety of the law of the EU”. See M. Trybus, European Union Law and Defence Integration, Hart, 2005, at p. 68.

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Eva Nanopoulos those commitments and the founding Treaties. Article 351 TFEU does not therefore give the member states an indefinite and blanket authorization to act contrary to Union law. In sum, to say that Article 347 TFEU only permits derogations from the rules governing the internal market is not to fully appreciate the linguistic differences between Articles 351 TFEU and 347 TFEU and the precise wording of Article 347 TFEU, which in fact suggest that the latter provision has a broader scope than that granted to it by the ECJ. Second, a broad interpretation of Article 347 TFEU is warranted by the nature of that provision. Article 347 TFEU is akin to an emergency clause. It covers “wholly exceptional”72 situations of crisis which may require the adoption of extraordinary measures otherwise unacceptable from a rule of law perspective. If the member states could not, in such circumstances, depart from the principles laid down in Article 6 TEU, the result would be that in the event of war, for example, they would have to abide by their EU law obligations whilst most probably absolved from compliance with a number of their own domestic law requirements. Even in such circumstances, member states should not of course act unconstrained by law. But the question is whether EU law73 should provide that limit given that the situations falling within the scope of Article 347 TFEU strike at the heart of the member states’ security and defence interests, and are thus best left regulated at the national level. In that regard, it is worth highlighting that Article 347 TFEU itself draws no distinctions between the scenarios to which it applies. There are thus no grounds to treat the implementation of SC Resolutions differently than say, measures adopted in response to a declaration of war, when it comes to determining the extent to which member states can depart from the Treaties. Thirdly, this construction appears to be warranted by the position of Article 347 TFEU within the broader framework of the Treaties. Trybus notes that Articles 346 (old Art. 296 TEU) and 347 TFEU are clearly separated from other derogatory provisions, which indicates the drafters’ intention to apply a distinct regime to these two set of exemptions.74 Ordinary derogation provisions are grouped under the title governing the internal market and are each attached to one of the four freedoms – i.e. they allow derogations from the particular provision to which they relate.75 By contrast, Articles 346 TFEU and 347 TFEU are included among the “general and final provisions”, which suggests that they do not purport to apply to a specific area of EU law but can be invoked to derogate from the Treaties more broadly.76 72 Judgment of 15 May 1986 in Case C-222/84, Johnston v. Chief Constable of the Royal Ulster Constabulary [1986] ECR-1651, at para.27; Opinion of AG Jacobs in Case C-120/94R Commission v. Hellenic Republic (“FYROM”) [1996] ECR I-1513, at para. 46. 73 Trybus notes that “in these extreme situations the response to a threat takes precedence over the entirety of the law of the EU”. See Trybus 2005, at p. 168. 74 See M. Trybus, ‘The EC Treaty as an Instrument of European Defence Integration: Judicial Scrutiny of Defence and Security exceptions’, 39 CML Rev. 2002, p. 1347, at p. 1360; Koutrakos 2001, at pp. 80-81. 75 See Art. 36 TFEU regarding derogations from the free movement of goods. 76 A. Arda, ‘Member States Right to Derogate from the European Treaties: A Commentary on Article 297 TEC’, in C. Campbell, P. Herzoge & G. Zagel, Smit & Herzog on the Law of the European Union, 2nd edn, LexisNexis Matthew Bender, 2005, at p. 7.

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  2  The Implementation of Security Council Resolutions Interestingly, and although his findings appear to have been targeted at Article 351 TFEU, AG Maduro on the contrary used the case law on ordinary derogation provisions in support of his conclusion that, if the member states took action to implement SC Resolution 1390 alone, they would still have to act compatibly with fundamental rights as protected in the EU legal order: “in the light of the Court’s ruling in ERT, it may be assumed that, to the extent that their actions come within the scope of [EU] law, Member States are subject to the same [EU] rules for the protection of fundamental rights as the [EU] institutions themselves [emphasis added]”.77 On that basis, he concluded that “if the Court were to annul the contested regulation on the ground that it infringed [EU] rules for the protection of fundamental rights, then, by implication, Member States could not possibly adopt the same measures without – in so far as those measures came within the scope of [EU] law – acting in breach of fundamental rights as protected by the Court”.78 Whatever the merits of the AG’s analysis as regards Article 351 TFEU, it appears to be misplaced when it comes to determining the effects of Article 347 TFEU. Not only does his reasoning ignore the special nature of this provision, but as the next section demonstrates, reliance upon Article 347 TFEU is not subject to the ordinary powers of the EU Courts; indeed, in such circumstances, the member states can be brought directly before the Court under Article 348 TFEU. This provision defines the appropriate scope and standard of review in this area and suggests indeed that the exercise of the member states’ power to implement SC Resolutions is subject to the most marginal judicial scrutiny only. Thus, contrary to the view of the AG, it would appear that the member states are not, in fact, in the same position as the institutions when acting to implement SC Resolutions, in so far as compliance with EU fundamental rights is concerned.

2.9 The Limited Powers of the EU Courts over National Measures ­Implementing SC Resolutions 2.9.1    The Jurisdiction of the ECJ under Article 348 TFEU The TFEU makes special provision for the adjudication of cases involving reliance on Article 347 TFEU. Indeed, these can be brought directly before the Court under Article 348(2) TFEU which provides that: [B]y way of derogation from the procedure laid down in Articles 258 and 259, the Commission or any Member State may bring the matter directly before the Court of Justice if it considers that another Member State is making improper use of the powers provided for in Articles 346 and 347 [emphasis added].

77 Opinion of AG Maduro in Joined Cases C-402/05 P and C-415/05 P, Kadi I, at para. 30. 78 Ibid., at para. 30.

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Eva Nanopoulos Article 348 TFEU was used only once against Greece for a unilaterally imposed embargo on the Republic of Macedonia. The FYROM case never made its way to the ECJ but the opinion of AG Jacobs provided a comprehensive analysis of the Court’s powers under this provision. He identified three stages in the review of measures adopted under Article 347 TFEU (then Art. 224 EEC). First, the Court must establish whether the member state concerned would be acting contrary to EU law if it were not for the possible reliance on Article 347 TFEU. Secondly, it must verify that the situation falls within one of the s­ cenarios envisaged in Article 347 TFEU. Finally, it must check whether the state has made improper use of the powers “recognised” to it therein.79 On the facts of the case, the AG found that the Greek embargo was contrary to the CCP80 but could be justified under Article 347 TFEU. He considered that the situation did not amount to “serious disturbances affecting the maintenance of law and order”, but that there was a lack of judicially applicable criteria for the Court to determine whether the situation amounted to “a serious international tension constituting a threat of war”. Accordingly, a large margin of appreciation had to be left to Greece’s own appraisal of the situation. As to the third condition, whether an embargo was the best way for the two countries to solve their grievances was held to lie within Greece’s political judgment. No evidence of improper use was found.

2.10 Back to Basics: Would Implementation of the UN Regime Involve ­Action Contrary to EU Law? Applied to the present context, the first issue is whether, in the absence of an EU measure covering the field, the member states would be acting contrary to EU law if they froze the assets of those designated by the Sanctions Committee. The question is reminiscent of the AG’s assertion that the ERT judgment would apply only if the national implementing measures fall within the scope of EU law; indeed, only in such circumstances are the member states bound to respect EU fundamental rights. Moreover, a breach of those rights would not in itself be sufficient to bring the member states within the scope of EU law, including Article 347 TFEU, or the jurisdiction of the EU Courts. This is also implicit in the terms of Article 347 TFEU given that the duty of consultation arises only if action taken to implement a Resolution of the SC is liable to affect the common market. When called upon to decide whether Article 352 TFEU could have been used, prior to the entry into force of the Treaty of Lisbon (TL), as an additional legal basis for the adoption

79 AG Jacobs in Case C-120/94R, Commission v. Hellenic Republic (FYROM) (1996) ECR I-1513, at paras ­30-31. See for an overview, Koutrakos, Trade Foreign Policy and Defence in EU Constitutional Law, supra note 30, at pp. 156-158. 80 AG Jacobs in Case C-120/94R, FYROM, at para. 40.

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  2  The Implementation of Security Council Resolutions of Regulation 881/2002, the ECJ held in Kadi I that the measures required by Resolution 1390 offer, by their very nature, a link to the operation of the common market. If these were implemented by the member states unilaterally, the Court continued, this could ­affect trade between the member states, particularly as regard the free movement of capital and the freedom of establishment, and further result in distortions of competitions. These two assertions had been explicitly rejected at first instance81 and this aspect of the ECJ’s ruling has not been generally well received.82 For present purposes it will be assumed that lacking a Union act covering the field, the member states would be acting contrary to EU law by giving effect to Resolution 1390 alone, thereby triggering the application of Article 347 TFEU and the jurisdiction of the Court under Article 348 TFEU. It must be noted, however, that in cases where an incompatibility with the Treaties is impossible to establish, the member states would not be acting within the scope of EU law, which would consequently have nothing to say on the legality of national measures adopted to implement a decision of the SC.

2.11  The Existence of a Situation Covered by Article 347 TFEU Secondly, the Court would have to verify that any national sanctions regime is meant to give effect to an obligation the member state concerned “has accepted for the purpose of maintaining peace and international security”, i.e. that it is covered by Article 347 TFEU. There is little doubt that there exist judicial criteria which the Court can apply to determine the existence of such an obligation and which are clearly fulfilled where the member states are acting in implementation of a decision of the SC adopted under Charter VII of the UN Charter. Where the relevant Resolution is framed in broad terms, one of the roles of the CJEU will be to determine whether the particular measure a member state seeks to justify under Article 347 TFEU is really covered by the UN mandate.83 If a national measure goes beyond what is required by the UN decision, the corollary is that there is no international obligation warranting that particular course of action. In such a case, it will not be possible for the member state concerned to rely on Article 347 TFEU, and the CJEU will subject the measure to full judicial scrutiny. In a case such as the UN Taliban regime, however, the ECJ has no such leeway: a national measure freezing the assets of a person designated by the Sanctions Committee would clearly be one which it is “called upon to take” to carry out the obligation enshrined in Resolution 1390. The second condition relating to the invocability of Article 347 TFEU 81 Case T-315/01, Kadi I, at paras 102-114. 82 See A. Johnston, ‘Frozen in Time: the ECJ Finally Rules on the Kadi Appeal’, 68 CLJ 2009, p. 1, at p. 2; M. Cremona, ‘EC Competence’, ‘Smart Sanctions’ and the ‘Kadi Case’, 28 YEL 2009, p. 559. 83 See for a similar conclusion Trybus 2005, at p. 186.

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Eva Nanopoulos would therefore be fulfilled and the ECJ’s role will be limited to checking that the person whose assets have been frozen is indeed included on the list of the Sanctions Committee, i.e. that the national measure at stake is covered by Resolution 1390.

2.12  ‘Improper Use’ Much of the case would then revolve around the exact meaning of “improper use of the power provided for in Article 347 TFEU” and the precise powers this grants to the Court. The issue is particularly delicate in this context. The Court’s jurisdiction under Article 348 TFEU covers the means chosen by the member states to fulfil their Charter obligations, not those obligations themselves. Thus, given the negligible level of discretion enjoyed by the member states under Resolution 1390, the scope for improper use and thus for judicial scrutiny is commensurably reduced. That being said, Article 348 TFEU allows the ECJ to sanction measures which a member state adopted for a purpose other than to respond to one of the situations described therein.84 That will be the case, for example, if a member states did not freeze the assets of X because it was required to do so by a SC Resolution, but to pursue some other unrelated domestic interest. AG Jacobs had further suggested that a national measure that is genuinely aimed at fulfilling Charter obligations could be tainted of impropriety if it was ­adopted in breach of the principles of equal treatment and proportionality.85 On the facts of the case, he considered that this was not a matter for the Court to decide since it could not legitimately “criticize the appropriateness of the Member State’s response”,86 which rested on a “political analysis which the Court is ill equipped to carry out”.87 A contrario, if and to the extent that the means chosen by the member states to give effect to a SC Resolution are suitable for judicial determination, they would, in principle, be reviewable by the Courts for their compatibility with the principles of equality and proportionality. Under this approach, there would be little scope for the Court to second-guess national authorities as to whether X is a terrorist (an assessment which, in the case of Resolution 1390, is in any event an integral part of the obligation imposed on the member states by the UN and which will be dealt with by the Court as part of its duty to determine whether the situations falls within the scope of Art. 347 TFEU, i.e. the second stage), but it could control the amount of funds frozen pursuant to the UN mandate and intervene, for example, in circumstances where the member state chose to deprive X of his very basic means of survival.

84 85 86 87

S. Peers, “National Security and European Law”, 16 YEL 1996, at p. 384. AG Jacobs in Case C-120/94R, FYROM, at para. 69. Ibid., at para. 85. Ibid., at para. 71.

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  2  The Implementation of Security Council Resolutions Overall, the position regarding the member states’ power to implement UN sanctions regimes can thus be summarized as follows: (1) in case of annulment of the EU implementing measures, the member states could give effect to the relevant SC Resolutions, here Resolution 1390, themselves; (2) if the relevant national measures do not affect the functioning of the common market, they will not even fall within the scope of EU law; (3) if they do, member states could justify such measures under Article 347 TFEU, which allows them to depart from the whole of EU law, including EU fundamental rights, if a UN Resolution so requires; (4) the ECJ will be able to sanction a disproportionate and discriminatory interference with such rights; (5) this power will only be of marginal relevance in cases such as the UN Taliban regime where member states enjoy very little discretion in the implementation process; (6) hence, despite the annulment of the EU implementing measures, EU law would not necessarily result in the member states’ international responsibility, contrary, in particular, to the institutions’ duty of loyal cooperation. In passing, it has been convincingly argued that member states can derogate from the Treaties using Article 347 TFEU “only for such periods as are strictly necessary”.88 As a rule, measures falling within the scope of that provision will be temporary in nature; indeed the circumstances to which it applies are truly exceptional, and thus necessarily limited in time.89 This is a serious issue in this context, albeit not one which the member states are immediately responsible for. The potentially permanent nature of the UN’s antiterrorism regimes is widely recognised, and criticised.90 Yet, for the purposes of Article 348 TFEU, so long as the UN Al-Qaida/Taliban regime is in force, national freezing orders will be covered by Article 347 TFEU and hence beyond the reach of the EU judiciary save for the limited purpose described in this section.

2.13 Conclusion Kadi I undisputedly stands as a strong reaffirmation of the centrality of human rights and the rule of law in the EU. Yet, it adds to a (growing) body of case law on the autonomy of the EU vis-a-vis the international legal order and its (potentially far-reaching) legal implications.91 This trend, it must be conceded, sits rather unwell with global efforts to

88 Arda 2005, at p. 20. 89 AG La Pergola in Case C-273/97, Angela Maria Sirdar v. The Army Board and Secretary of State for Defence [1999] ECR-I 7403, at para. 21. 90 See V. Mitsilegas, ‘The European Union and the Globalisation of Criminal Law’, 12 C.Y.E.L.S, 2009-2010, p. 337, at p. 364; J.E.K. Murkens, ‘Countering Anti-Constitutional Argument: the Reasons for the European Court of Justice’s Decision in Kadi and Al Barakaat’, 11 C.Y.E.L.S. 2008-2009, p. 15, particularly at pp. 27-28; A. Bianchi, ‘Assessing the Effectiveness of the UN Security Council’s Anti-Terrorism Measures: the Quest for Legitimacy and Cohesion’, 17 EJIL 2006, p. 881, at pp. 890-891. 91 See also, e.g., Opinion 11/09 of the Court of 8 March 2011, not yet reported.

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Eva Nanopoulos maintain international peace and security, as coordinated through the medium of the UN. Tellingly, although the GC felt compelled, in Kadi II, to comply with the ECJ’s judgment in Kadi I, it took the time to highlight the controversies of the ruling, allegedly voicing the concerns of a number of unidentified “legal circles”.92 The GC reiterated, in particular, that full judicial scrutiny was liable to encroach upon the prerogatives of the SC and that the possible annulment of the EU implementing measures would, essentially, render the primacy of SC Resolution ineffective in the EU legal order. The consistency of the judgment with Articles 25 and 103 of the UN Charter, as well as Articles 347 TFEU and 351 TFEU was also questioned, together with its compatibility with other general EU law provisions expressing the Union’s commitments to the broader UN enterprise and Declaration No. 13 annexed to the TL on the CFSP, which now stresses, in unequivocal terms, that “the [EU] and its member states will remain bound by the provisions of the Charter of the [UN] and, in particular, by the primary responsibility of the [SC] and of its members for the maintenance of international peace and security”. Ultimately, this Chapter put forward a framework for such concerns and/or criticisms to be accommodated within the quasi-constitutional structure of the EU and in line with the Union’s continuous commitment to the rule of law and the protection of fundamental rights. The answer, it was argued, is to be found in the principle of loyal cooperation as it ­applies to the implementation of UN sanctions regimes. It was thus shown that where member states decide, by means of a unanimous decision adopted under the CFSP, to d ­ ischarge their Charter obligations through the medium of the EU, the principle of loyal cooperation read together with Article 347 TFEU translates into a duty for the institutions to give effect to SC Resolutions on their behalf. In concrete terms, and as applied to the facts of the Kadi case, this means that a degree of deference should be paid to the assessment of the Sanctions Committee regarding the person’s alleged connections with terrorism. As there is no independent mechanism of control at the level of the UN, the decision cannot be left entirely to the Sanctions Committee for that would amount to denying justice to those designated by the UN. Nevertheless, the principle of loyal cooperation would operate so as to lower the standard of review that the principle of effective judicial protection would normally require. Where these two principles cannot be reconciled at the level of the EU, the EU act implementing the relevant SC Resolutions will ultimately have to be annulled. In these cases, the burden of implementation would fall back again on the member states, whilst the duty of loyal cooperation would “transform” into a requirement for the institutions, including the Courts, not to impede the member states’ performance of their obligations under the Charter. Article 348 TFEU confirms indeed that only a patent abuse of the member states’ power to carry out SC Resolutions can trigger the intervention of the EU judiciary.

92 Case T-85/09, Kadi II, at para. 115.

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  2  The Implementation of Security Council Resolutions This is not to say that the ECJ’s emphasis on the autonomy of the EU legal order or the importance of EU fundamental rights is, in itself, misplaced. The recent judgment of the ECtHR in Nada appears to confirm the ECJ’s own finding that UN law does not preclude the review of the “internal lawfulness” of measures intended to give effect to UN Resolutions.93 Rather, the argument is that if the ECJ were to embrace the more nuanced ­approach outlined in this contribution, this might pave the way for a system which is able to guarantee the proper performance of Charter obligations and the effectiveness of the UN enterprise whilst preserving the Union’s autonomy and the integrity of its values and constitutional foundations. The Union could give effect to aspects of UN regimes which are in line with EU law, i.e. those aspects which cannot escape annulment despite the balancing exercise to be performed by the EU Courts, and the member states those which are not. There might be some costs to the transparency of the process by which SC Resolutions are implemented in EU member states, but these are largely outweighed by the need to find a viable system of implementation which is in line with basic principles of EU constitutional law. In addition, member states have stronger mechanisms of democratic accountability, enabling them to take responsibility for measures which, whilst furthering peace and security, may prove detrimental to the individual. It would be illegitimate, by contrast, for the member states to adopt such measures through the medium of the EU precisely in order to escape any political (or indeed judicial) accountability. Kadi II offers the ECJ an opportunity to revisit its stance. In that regard, the ECJ’s ruling in Kadi I must be read in the light of the judgment of its junior partner at first instance. At the time, there was undoubtedly great pressure on the ECJ to reaffirm the place of judicial review (and fundamental rights) in the EU legal order. From that perspective, the statement of the ECJ that it must ensure the full review of EU measures implementing UN Resolutions could be read as recalling that such measures must be reviewed in the light of EU law, and not in the light of Jus Cogens norms, which the GC had chosen instead as a reference point. But it should not necessarily be taken to imply that judicial review must be carried out with no regard for the existence of an underlying UN mandate at all.94 Now that the ECJ secured an effective remedy to those designated as terrorists by the UN, it might be willing to engage more fully with the issues arising from the relationship between the UN, the EU and the member states. The role of the Union on the international scene is certainly directly at stake.

93 Nada v. Switzerland, Appl. No. 10593/08, 33 B.H.R.C. 453, para. 212. Although this is not without any controversy. See M. Milanovic, “European Court Decides Nada v. Switzerland” at . 94 Tridimas points out that Kadi is to be viewed only as the beginning, and says little about how, in the future, the ECJ will balance public security, on the one hand, and the protection of individual rights, on the other. See T. Tridimas, ‘Economic Sanctions, Procedural Rights and Judicial Scrutiny: Post-Kadi Developments’, 12 C.Y.E.L.S, 2009-2010, p. 455, at p. 458.

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3

On Myths and Miracles: The EU and Its Possible Accession to the ECHR

Jan Klabbers* 3.1 Introduction For the last 20 years or so, the European Union (hereinafter ‘EU’) has busily portrayed itself as an entity based on, and cherishing, human rights. Human rights form an integral part of many of the agreements concluded by the Union with third parties. Human rights also rank among the main criteria for admission, as the well-known Copenhagen criteria make clear. And the Court of Justice made worldwide waves a few years ago when it held that global anti-terrorism measures, regardless of their source, needed to live up to the human rights standards prevailing in the EU in order to be implemented in the EU. Things were not always thus. The EU did not have much of an interest in human rights in its early days. It held as early as 1958 that the compatibility of EU law with national human rights guarantees was outside its remit, and only started a decade later, prompted by the German constitutional court, to pay some attention to human rights. By now, ­human rights are often mentioned in official documents, and the EU adopted a Charter on ­Fundamental Rights in 2001, and yet, the EU’s relationship with human rights has always been ambivalent: human rights are good for others and should be binding upon them, but the EU itself has been reluctant to be pinned down. Even the EU’s own Human Rights Charter was conceived, initially, as a non-binding instrument. In short, the EU’s relation with human rights has mostly been instrumental: the EU insists on human rights in its external relations – carrot and stick rolled into one – and makes sure that it keeps its hands free internally. All this raises the question why the EU should accede to the European Convention on ­Human Rights (hereinafter ECHR), and what it hopes to achieve by doing so. The ­expectation is that building the EU on human rights will serve the integration process, and provide the EU with the legitimacy it might otherwise be seen to lack. After all, the Union is in a state of crisis, with, in particular, the financial situation taxing the goodwill of some member states, and the highly visible influx of workers and non-workers into other member states taxing the patience of the citizens of those member states. In other words, the

*

Professor of International Law at the University of Helsinki, and currently (spring 2013) a Visiting professor at the Graduate Institute of International and Development Studies in Geneva.

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Jan Klabbers EU needs something to hold it together; the earlier integrative stories (the EU as the guarantor of peace and stability; the EU as a common market project) no longer suffice and, not unimportantly, are unable to explain the eastward expansion of the EU. This expansion has its own political rationale, and while this rationale may be widely shared amongst policy elites, it may not sound all that convincing on the street level as the election results in member states such as Finland strongly seem to suggest, as well as Finland’s and Holland’s attempt to block the inclusion of Bulgaria and Romania into the Schengen system. In this chapter, I will first argue that the EU’s emphasis on human rights is inspired by the need of having a story (and in particular a history) to rally around. Human rights are expected to provide the EU with legitimacy, and the story of human rights has become the focal point in succession to two earlier narrative myths. While no doubt a case can be made that the EU enjoys some legitimacy due to its output (many of us realize that we are better off as a result of the EU’s existence and its policies), nonetheless output legitimacy alone is vulnerable to fluctuations, if only because output is necessarily mixed:1 I may benefit from EU membership by being able to take pension rights along when I move from one member state to another, but I might not like to see my hard-earned tax money being used to bail out incompetent Greek or Irish financial sectors, especially not upon realizing that some individuals must have benefitted tremendously from the very processes that helped to cause the crises. I will subsequently discuss the possible accession of the EU to the ECHR, and briefly sketch the relationship between the two as it has developed until now. This will help to strengthen the core argument of this paper, to which I will return later on: while accession of the EU to the ECHR will undoubtedly be a good thing, not too much should be expected from it. The European Court of Human Rights can be expected to carefully limit its involvement into EU affairs, and on the level of political theory, it seems highly implausible that a focus on human rights alone can legitimize a political enterprise, which otherwise suffers from a legitimacy deficit. Something more is needed than the mere subscription to a set of rights that, truth be told, will have fairly little effect on people’s daily lives at any rate.

3.2  On Foundational and Other Myths Famously, the Italian revolutionary Massimo D’Azeglio quipped, after Italy became a unitary state some 150 years ago, that now that Italy had been made, it was time to make

1 The distinction between input and output legitimacy is usefully elaborated by Scharpf, who suggests that an entity such as the EU needs to live by output legitimacy because it is structurally unable (lacking a demos) to generate input legitimacy, i.e. the legitimacy that stems from a sense of belonging. See F. Scharpf, Governing in Europe: Effective and Democratic?, Oxford University Press, Oxford. New York, 1999.

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3  On Myths and Miracles: The EU and Its Possible Accession to the ECHR Italians.2 The message reveals a painful truth about political communities: they tend not to grow organically, but are based upon deliberate activities – they are ‘imagined communities’, in the classic term coined by the anthropologist Benedict Anderson.3 And while it may be true that the imagination is fired by something pre-communitarian,4 nonetheless there can be little doubt that political communities depend, for their identity and cohesion, to some extent on myths, stories, and ‘invented’ traditions. The EU too has adopted a succession of myths in its attempts to create Europeans, in accordance with political circumstances and needs. While there is nothing wrong with doing so, this nonetheless suggests that the current myth, to the effect that the EU is a union based on enlightenment values of human rights and the like, should not lead to over-inflated expectations: political myths can change almost overnight.

3.2.1    Bringing Peace to Europe The EU has absorbed the lesson that it needs a foundational myth from its early days onwards, and has repeatedly adjusted the stories that have helped justify its existence. The first of these stories owed much to World War II: the EU (then still the three ­European Communities) was set up to make war unthinkable, especially between France and ­Germany. This was a powerful story, aided as it was by the symbolism of leading cast members hailing from precisely the European territory that had been moving back and forth between the two contenders: Robert Schuman, a native of Alsace-Lorraine, symbolized the politics of the new Europe, back in the 1950s, and personified the new unity, and a similar symbolism could be read into the pivotal role played by a native of Belgium (Paul-Henri Spaak), itself a relatively young state. In this story, there was no particular need for human rights. Admittedly, the German Constitution had seen fit to guarantee some basic rights, but that, clearly, was attributable to Germany’s recent history. Other than that, peace and stability would be its own guarantee. The message emanating from the Treaty of Rome was clear: economic prosperity will lead to peace and security, in line with the functionalist theory of political integration that had arisen during the war. Besides, the world at large had already expressed pious hopes with respect to human rights in the form of the Universal Declaration of Human Rights, and it would be redundant for

2 Quoted, in Eric J. Hobsbawm, Nations and Nationalism since 1780, Cambridge University Press, 1990, p. 44. 3 See B. Anderson, Imagined Communities: Reflections on the Origins and Spread of Nationalism, rev. ed, Verso, London 1991. 4 See C. Calhoun, ‘Is it Time to be Post-national?’, in S. May, T. Modood & J. Squires (Eds.), Ethnicity, Nationalism and Minority Rights, Cambridge University Press, 2004, pp. 231-256.

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Jan Klabbers the EU to occupy itself with human rights seeing that this had become the province of the Council of Europe, under whose auspices an ambitious human rights instrument had just been concluded. It was possible, of course, that this European Convention on Human Rights also aimed to stimulate peace in Europe, and thus worked on the theory that peace would presuppose human rights, whereas the EU worked on the theory that economic cooperation, not human rights, would create peace. Either way though, there was no need for the EU to do anything with human rights, and no jurisdiction either, as the Court made clear in the early Stork case.5 The story of the EU as the harbinger of peace and stability, in the aftermath of World War II, was a powerful story, far more so, initially, than the idea that the European Convention with its emphasis on human rights may engender peace. The Convention had a hard time getting off the ground: it took years for some of the more important parties to ratify,6 and it took a long time for some of them to accept the possibility of individual petitions.7 The Strasbourg Court did not have all that much to do in its early years, and the Convention seemed to function more as a nice flourish, a sign to the world outside Europe that yes, we have learned some lessons from our very recent past and are now thinking of human rights, then that it was actually changing the hearts and minds of Europeans. Moreover, it is probably not to be under estimated that the EU, in its conception and in its first decades, was very much a Christian-democrat project, imbued by Christian-­democrat ideas. Such ideas may include an element of solidarity, of common ­responsibilities for social welfare (within a capitalist framework) as well as individual responsibility for one’s own behavior, and may owe something to the classic virtue of charity, but Christian-­ democrat dogma was never too impressed with a militant insistence on individual rights at the expense of others or of the community. This may very well help explain why the EU got off to a flying start, whereas the Council of Europe’s attempt to create a human rights framework for Europe took a few decades to pick up pace.

3.2.2    Bringing Growth to Europe But powerful as the story of the EU as the path to peace was, it ran out of steam when new member states acceded, thus breaking up the fruitful German-French axis, and with new generations of Europeans having been born without any living memory of the

5 See Case 1/58, Stork v. High Authority [1959] ECR 17: Germany’s constitutional rights have nothing to do with market integration, and even measures that would be invalid under German constitutional law may still be valid under EU law. 6 France only ratified in 1974, while Spain and Portugal would only join in the late 1970s. 7 This applied, amongst others, to the UK and Italy, who only accepted individual petition in 1966 and 1971, respectively.

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3  On Myths and Miracles: The EU and Its Possible Accession to the ECHR war. Moreover, the old Christian-democrat coalition had come to be disrupted, with ­Christian-democracy looking to re-invent itself, and typically doing so as conservative, market-­oriented, and with more emphasis on just desserts. By the time the 1980s had come around, it was time for a new unifying myth, more in line with the new political realities of halting economic prosperity, Japan’s rise to economic power, and the new-found confidence of a German political class that realized all too well that Germany’s industry was propelling the EU. The new EU needed to be able to adapt to Reaganomics and the influence of Milton Friedman’s monetarism and Hayek’s earlier liberal thought, and needed to come to terms with Margaret Thatcher’s demand for a ‘juste retour’: the UK loudly claimed that it wanted to receive as much from EU funding as it contributed, and this in itself symbolized a new attitude towards European integration.8 Hence the focus shifted from the memory of a world war to the functional needs of economic cooperation and providing European companies with a working and large enough home market so as to be able to afford economies of scale: the completion of the internal market by 1992. The new myth held that the EU was falling behind in the global economic struggle; that this was in part the result of the incomplete common market (the ‘costs of non-Europe’ were considered exceedingly large), and thus project 1992 was born. It needed a treaty amendment to make it stand a chance of success and so, for the first time in more than three decades of European integration, the treaties establishing the three Communities were amended by means of the Single European Act. As Andrew Moravcsik points out, this amounted to a veritable ‘re-launching’ of the European integration process.9 In this climate, there still was not all that much to do about human rights. The Court had come to realize that it could go far without actually having its hands tied by suggesting that its human rights approach was inspired by the common constitutional traditions of the member states and the treaties to which all or most of them were parties, without singling out any special treaty, and without boldly proclaiming that the EU would consider itself bound by the European Convention – or any other human rights treaty, for that matter. And in line with the Zeitgeist of inspired neo-liberalism, the Court had gradually elevated the fundamental freedoms on which the EU is based to the level of fundamental rights and fundamental freedoms, using the language and aura of human rights to characterize basic tenets of EU law. The freedom of trade,10 free access to employment11 or the freedom to be self-employed:12 all these became glorified in language reminiscent of the human rights

8 See J. Klabbers, An Introduction to International Institutional Law, 2nd edn, Cambridge University Press, 2009, p. 129. 9 See A. Moravcsik, The Choice for Europe: Social Purpose and State Power from Messina to Maastricht, Cornell University Press, Ithaca NY, 1998, pp. 314-378. 10 See Case 240/83, ADBHU [1985] ECR 531, para. 9. 11 See Case 222/86, Heylens [1987] ECR 4097, para. 14. 12 See Case C-55/94, Gebhard [1995] ECR I-4165, paras 35-37.

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Jan Klabbers discourse, designated as ‘fundamental rights’ or ‘fundamental freedoms’. But the Court stopped short of actually proclaiming that the EU would respect any specific set of human rights, and the political authorities did nothing of the sort either. Typically, project 1992 and the Single European Act (hereinafter ‘SEA’) did not even mention human rights, with the exception of a routine consideration listed in the SEA’s preamble.

3.2.3    Bringing Human Rights to Europe While there is little doubt that the 1992 project was, measured in its own terms, quite a success, its foundational myth lasted for a much shorter period of time than its predecessor as, highly unexpectedly, the division of the continent came to an end when the USSR fell apart and the Berlin Wall came tumbling down. This provided the EU with the historical opportunity to encompass many of Eastern Europe’s states and encompass vast tracts of the continent. In order to achieve this, yet another foundational myth was needed: project 1992 rapidly moved to the background, and was replaced – or rather, complemented – by yet a new story: that of the historical opportunity to bring communism to a complete end and adopt the nations of Eastern Europe into the embrace of the western world. Hence, the new foundational myth had to sing the praises of the western world, and of Western Europe in particular: how else could Poles, Hungarians or Estonians be persuaded to help fund French farmers? The Treaty was amended yet again, a mere five years after the previous amendment, and in Maastricht the curious, somewhat hasty edifice of the EU, with its three pillars and common roof, was created.13 The new EU of the Maastricht Treaty somewhat hesitantly referred to itself as a Union based on the values of western liberalism, and started to posit itself as the logical heir of the enlightened European tradition. This would quickly be strengthened and given some flesh (not too much though, as befits any good foundational myth) at the Copenhagen summit of 1993, where the EU depicted itself as a Union based on human rights (including minority protection), on the rule of law, on democracy and on the market economy.14 Here then the two new myths came together: the reference to the market keeps economic liberalism at ease, and the rule of law, democracy and human rights provide the political framework, aided by the Court’s earlier inspired move to re-conceptualize some of the market-related freedoms as fundamental rights.

13 Memorably characterized by Curtin as a Union of ‘bits and pieces’. See D. Curtin, ‘The Constitutional Structure of the Union: A Europe of Bits and Pieces’, 30 Common Market Law Review, 1993, pp. 17-69. 14 The Copenhagen criteria have since become the standard list of requirements for accession, and can be found, e.g., at (last accessed 31 October 2011).

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3  On Myths and Miracles: The EU and Its Possible Accession to the ECHR This now would become the new mantra: it would be laid down, in one form or another, in agreements with third parties (from the so-called Europe agreements paving the way to membership, to the Cotonou agreement with a large number of developing nations). It would repeatedly be invoked in discussions on the admission of new member states. It would serve as a political justification for suspending trade relations with an imploding Yugoslavia, as the Court made clear in Racke.15 It would lead to the adoption of an initially non-binding Charter on Fundamental Rights. In order to show how seriously the EU was taking itself, the myth was invoked and arguably strengthened by the suspension of Austria following the rise to power of a right-wing political party in that member state, and the idea of the EU being a Union of Values came to be embedded in the aborted draft treaty establishing a constitution for Europe and its nominal successor, the Lisbon Treaty. The very same myth would be at the heart of the greatest legal controversy prevailing before the European Court of Justice (hereinafter ‘ECJ’) since the days of Van Gend, Loos and Costa v. ENEL in the early 1960s: in Kadi, the Court invoked Europe’s unique values as the ultimate justification for disobeying the Security Council.16 The message was clear, and oh so loud: the EU is based on certain values, and anyone who does not share these values, or acts in defiance of these values, better think again. As far as foundational myths go, the EU could hardly have chosen a more attractive one, if only because by the early 1990s, it seemed that human rights, democracy and the rule of law had grown into the world’s leading ideology. History had come an end, as Francis Fukuyama famously proclaimed,17 and human rights had become the values of choice for a Godless age, as someone would poignantly put it a few years later.18 And yet, the EU’s new foundational myth is strained or, if you will, ambivalent. One element of tension, perhaps the most glaring, is the reference in the Copenhagen criteria to the market economy. This may have functioned as a nod to the previous myth, the neoliberal 1992 project, but seems rather out of place in an enumeration otherwise emphasizing human rights, democracy and the rule of law. That is not to say there is no connection whatsoever: it is perhaps no coincidence that among later thinkers, it was precisely Hayek who was among the first to give flesh to the idea of the Rule of Law: any set of rules that contribute to economic freedom.19 15 See Case C-162/96, Racke v. Hauptzollamt Mainz [1998] ECR I-3655. 16 See Case C-402/05 P, Kadi v. Council and Commission [2008] ECR I-6351. In turn, a possible international legal justification for doing so is provided by A. Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions, Oxford University Press 2011. 17 See F. Fukuyama, The End of History and the Last Man, The Free Press, New York, 1992. 18 See F. Klug, Values for a Godless Age: The Story of the United Kingdom’s New Bill of Rights, Penguin, London 2000. 19 See F.A. Hayek, The Road to Serfdom, Routledge, London 2001 [1944]. This then provoked authors of more social-democratic ilk to either provide the Rule of Law with different flesh or, as Oakeshott did, expose it as the political notion it really is. See M. Oakeshott, ‘The Rule of Law’, in M. Oakeshott, On History and other Essays, Liberty Fund, Indianapolis, 1999, pp. 129-178.

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Jan Klabbers But to think of the market economy in the same breath as human rights, democracy and the rule of law is really only plausible in this Hayekian, ordo-liberal philosophy. Therewith it is precisely the reference to the market economy that exposes the foundational myth as a political project, for while people of goodwill may consider human rights, democracy and the rule of law as neutral and somehow beyond politics, the same does not apply, and cannot apply, to the market economy. The further strain on the EU’s holy trinity is that human rights, democracy and the rule of law are not, actually, above politics either. The EU favours some human rights (civil and political) over others (economic and social). It may stimulate ‘low intensity democracy’ (the democracy that insist that people vote every now and then in secret ballots)20 across the globe, but can barely be called democratic itself. And the rule of law is about as a contested a political concept as any.21 In other words, Europe’s new foundational myth is a myth without much contents, and such contents as it has (the market ideology) are too controversial and, still, too thin to serve as a rallying point. The earlier ones had real-life counterpoints. The early EU could indeed plausibly posit itself as a response to the scourge of war. The EU of project 1992, for all its limits, could indeed plausibly point to the rise of Japan (‘The land of the rising yen’) and the Asian tigers, as well as the US service industry, as challenges that needed to be met and could be met, possibly, by a neo-liberal focus. But the EU founded on human rights, democracy and the rule of law (with or without the market) is too bland, too noncommittal and, in an important sense, too dishonest. For by re-writing European history as a history of political progress, the authors have deleted large chunks that did not fit the narrative. Documents emanating from European summit meetings often refer to Europe’s values, and none more so perhaps than the Laeken Declaration of 2001, which posits Europe as the continent of human values, the Magna Carta, the Bill of Rights, the French Revolution and the fall of the Berlin Wall; the continent of liberty, solidarity and above all diversity, meaning respect for others’ languages, cultures and traditions.22 In doing so, ‘Laeken’ taps into widely held and plausible views. Aristotle, Descartes and Kant were Europeans, after all. Tocqueville may have written about the democracy in America, but the first polities employing something approximating democracy came from Europe: from the Greek polis to the Magna Carta, and later from the French Revolution to the suffragettes. Even the word democracy, originating as it does in Greek, hails from 20 I owe the term to S. Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology, Oxford University Press, 2000. 21 For a fine discussion, see B. Z. Tamanaha, On the Rule of Law: History, Politics, Theory, Cambridge University Press, 2004. 22 The Laeken Declaration is available at (last accessed 31 October 2011).

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3  On Myths and Miracles: The EU and Its Possible Accession to the ECHR Europe, as do notions of the Rechtsstaat or, a bit more hesitantly perhaps, the Rule of Law. Through rose-tinted glasses, the history of Europe is a history of continued political progress, from Greece via Rome through the admittedly somewhat darker Middle Ages to the Renaissance and Enlightenment, taking some pride in the invention of the modern international organization and the solidification of human rights, democracy and the rule of law through the path-breaking European Convention on Human Rights which, as luck would have it, cements all three ideas. The above is all, of course, fairly accurate: the individual elements of the narrative are all justifiable. The story as a whole though shows a few gigantic holes and could just as easily be swapped for a less salutary version. If Europe is indeed the birthplace of human rights, democracy and the rule of law, it is also the birthplace of colonialism, slavery and slave trade, nationalism and genocide. These, moreover, are not remnants from centuries ago, but still occurred within living memory and, in one form or another, may still be witnessed today. Slave trade may have been outlawed, but has resurfaced as human trafficking. Colonialism may have formally ended, but informally lives on in trading systems, restricted immigration, political conditionality and, more generally, fuzzy ideas about the West being involved in a mission to civilize the Islamic world, if necessary by force. Nationalism can be seen in the confused politics of all sorts of right-wing and populist groups, from the peroxide-headed PVV in formerly liberal Holland to the True Finns in formerly solidarist Finland. And Srebrenica took place not all that long ago. Europe’s recent history has been informed, so a renowned historian argues rather cogently, by a struggle for power between democrats and autocrats (fascists and communists), and the circumstance that for the time being the democrats seem to have the upper hand is by no means a guarantee that this will continue and, importantly, cannot be used to blot out those autocratic tendencies that are so prevalent in Europe, and that keep raising their ugly head.23 In short, the picture of Europe as the one traditionally liberal refuge in the world is not all that convincing, coming as it does at the price of historical accuracy. Europe’s claim to be based on the values of human rights, democracy and the rule of law is eventually a rather empty claim, more impressive in its rhetorical quality and the persistence with which it has been formulated than in actual application. It is not that Europe is doing so much worse than others; it may even be doing better than most. It is, rather, that the claim is without solid foundations, and difficult to substantiate as a rallying point. Perhaps, most fatal is the claim relating to democracy. While all of the EU’s member states are, nominally, democracies, the idea of democracy is not a strong one in situations where the prime minister also owns a number of mass media, as in Italy, or is connected to the world’s largest media mogul, as is the case with the UK’s Prime Minister. More problematic

23 See M. Mazower, Dark Continent: Europe’s Twentieth Century, Penguin, London, 1998.

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Jan Klabbers though is that European elections are still nationally based; that despite E ­ uropean citizenship, migrant workers still are not allowed to vote in domestic elections (other than municipal elections), and that, as a practical matter, no one seems to care about the European Parliament: voter turnout is embarrassingly low. And when the electorate does something unwanted (vote for a populist like Jörg Haider, say), Europe’s political elite is up in arms and decides to suspend Austria. Combine all this with the efforts to manipulate Europe’s people to approve of the various amendments to the EU treaties (how often have the Irish been sent back to the polls?), and the picture emerges of a hopelessly inadequate democracy, where the main task of the electorate is not check the behavior of political elites but, rather, to provide those elites with legitimacy. Not surprisingly, this has proved to be less than successful: even the ill-fated 1980s attempts to stimulate a European identity by organizing sports events and a Europe-wide lottery were better conceived.24 Ironically perhaps, it may be the very same neo-liberalism accounting for Europe’s market success that is to blame for its democratic problems. If schoolchildren are being taught, from a young age on, that competition is the only value that matters and that all they should care about is their own performance (backed up, in yet another irony, by human rights discourse), small wonder that they never develop a democratic sensitivity. Be that as it may, there is a risk in trying to create anything on the basis of values, as values tend to be highly fluid. A value, properly speaking, is a political position, instrumental in everyday life. Thus, one can be pro-life or pro-choice, as the result of careful or not so careful deliberations. One can be against torture, or be in favour of torture in limited circumstances. One can be against the death penalty, or allow for its use in certain cases. The point is that values, being little else than political opinions, can and do change. German citizens in the early 1930s probably felt that reporting their neighbours to the authorities would be wrong; by the late 1930s, many felt it was right. Values here offered no protection, so much so that Hannah Arendt could, in a telling phrase, speak of the ‘bargain sale’ of values (Ausverkauf der Werte).25 Hence, values cannot offer a very stable basis for imagined communities, and it is surely no coincidence that whenever communities are imagined, they are usually imagined around ideas of ethnicity, religion, race, language or history, but not around values.

24 These were to be found in the Adonnino reports of 1985. See A People’s Europe: Reports from the ad hoc Committee, Bulletin of the European Communities, Supplement 7/85, proposed at 26 and 22, respectively. 25 Arendt also pointed out that values tend to be instrumental: something has value in relation to something else, as its etymological connection to exchange-value already suggests. See H. Arendt, ‘The Crisis in Culture: Its Social and Political Significance’, reproduced in H. Arendt, Between Past and Future, Penguin, London 1968, pp. 197-226, p. 204. Useful on this point is E. Meade, ‘The Commodification of Values’, in L. May & J. Kohn (Eds.), Hannah Arendt Twenty Years Later, MIT Press, Cambridge, MA, 1996, pp. 107-126.

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3  On Myths and Miracles: The EU and Its Possible Accession to the ECHR This applies also to the most sophisticated attempt to do so: constitutional patriotism. Even its fiercest proponents realize that this Habermasian attempt to have people rally around precisely such things as human rights and democracy is, as the phrase goes ‘normatively dependent’: it cannot stand on its own, but needs a thicker political project to collaborate with.26

3.3  Respecting the ECHR? As mentioned, the story of human rights and the EU is not an unqualified story of progress and optimism. Having first dismissed human rights as outside the competences of the EU in the 1950s, towards the end of the 1960s the EU, or rather its judicial institution, started to respond to stirrings in the German Constitutional Court that really, the EU could not afford to legislate in violation of basic human rights as guaranteed in the German Constitution. As a result, the ECJ started to pay some attention to human rights, carefully suggesting not so much that the EU would be legally bound to apply any particular set of human rights standards, but rather that it would draw inspiration from the constitutions of its Member States and the various treaties to which its Member States are parties. Over the years, many have suggested that instead of thus paying lip-service to human rights without making a really firm, legally binding, commitment, perhaps the EU should consider joining the ECHR.27 After all, the ECHR represents a modern and recognizably Western set of standards (no fuzzy and expensive social rights here), and all the EU’s Member States are parties to it. Yet, in 1996, the ECJ still found that it lacked the constitutional structure for doing so, arousing the suspicion, according to some, that it might not be all that interested really, if only to protect its own role as the sole guardian of legality within the EU. Surely, a court that was quick to find the EU to possess implied powers to engage in a lot of different external activities could have found an implied power to join a human rights regime, especially considering that the exportation of human rights by the EU was already well established. As a result, the charge of hypocrisy or dual standards was often heard, and not unreasonably so.28 The ill-fated Treaty establishing a Constitution finally urged the EU to make a firm commitment in the form of acceding to the ECHR: if the EU previously lacked the competence, 26 For an excellent discussion, see J.W. Müller, Constitutional Patriotism, Princeton University Press, 2007. 27 The best legal study of the relationship between the EU and the ECHR remains R. Lawson, Het EVRM en de Europese Gemeenschappen, Kluwer, Deventer 1999. 28 Note also that discussions on the constitutionalization of the EU, starting with Stein’s classic piece, tend not to refer to any systematic human rights commitment: the EU is portrayed as functionally constitutional rather than substantively constitutional, with notions such as direct effect, implied powers and supremacy. See E. Stein, ‘Lawyers, Judges, and the Making of a Transnational Constitution’, American Journal of International Law, 75, 1981, pp. 1-27.

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Jan Klabbers the Treaty establishing a Constitution would provide it. With this Treaty being defeated, the relevant clause now is Article 6, paragraph 2 of the Treaty on European Union (hereinafter TEU): “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the competences as defined in the treaties”. This is a curious clause, for various reasons. First, the imperative ‘shall’ seems out of place, as the EU alone cannot decide the issue. Any application to accede must be made possible under the ECHR itself, and it took an amendment of the ECHR to make it feasible: Protocol 14 provides, in its Article 17, that the EU ‘may accede’ to the ECHR. Protocol 14 entered into force in June 2010, with the result that the amended ECHR now allows for accession by the EU in Article 59, paragraph 2. This is, however, the beginning of the analysis rather than the end. As the explanatory report to Protocol 14 suggests, EU accession will either warrant further amendments of the Convention, or will warrant an accession treaty with the EU.29 This, in turn, raises the issue of the proper treaty partner: the Explanatory report suggests, plausibly, that such a treaty must be concluded with all existing parties to the Convention which, in effect, will give each and every single one of them a veto and, therewith, a nice amount of political capital to play with. Alternatively, perhaps the accession treaty could be concluded with the Council of E ­ urope, but it is doubtful whether this organization possesses the required competence. The ­Statute provides the Council of Europe only with the competence, it seems, to conclude a headquarters agreement with France.30 In addition, the collective parties to the Convention lack the legal personality to conclude an accession treaty as a single party, and the Convention lacks a proper accession procedure. None of this will prove problematic if all parties to the Convention are keen on getting the EU on board, and one could argue that the provision allowing the EU to accede suggests such a keen interest. Nonetheless, the legal state of affairs provides quite an opportunity for political gamesmanship. The second reason why the provision of Article 6, paragraph 2 TEU is curious is its closing sentence, according to which accession “shall not affect the competences as defined in the treaties”. The background idea is clear enough: the EU is based on a delicate division of powers between the whole (the EU) and its parts: the member states. This balance is subject to constant development, negotiation and re-negotiation. These are eminently political processes, and should not occur by accident. Yet, it cannot be excluded that such accidents may take place: e.g. the European Court of Human Rights (hereinafter ECtHR) may hold a member state responsible for a matter within EU competence or, at least, shared or supplementary competence – its decision in Behrami and Saramati

29 The report is available at (last accessed 31 October 2011); see specially paras 101-102. 30 See Art. 40 Statute Council of Europe.

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3  On Myths and Miracles: The EU and Its Possible Accession to the ECHR demonstrated that attribution is not always self-evident.31 Or, to revert to the classic SPUC v. Grogan scenario,32 it is not impossible that in deciding on abortion (typically, so far, a member state competence), the ECtHR comes to say something of finality regarding the free movement of services, or that a decision of the ECtHR on French or Greek refugee practices may interfere with the EU’s migration policy. At times also the relationship between the four freedoms and human rights may come under the spotlight, and while the case law of the ECJ tends to posit the four freedoms as the basic rule and human rights as possible justifications for exceptions,33 it is not impossible that the ECtHR may reach the opposite conclusion, and such a finding may reflect on the division of competences. As these (hypothetical, and possibly somewhat belaboured) examples suggest, the actor most likely to intervene in the division of powers within the EU would be the ECtHR – yet the ECtHR cannot be bound by the injunction of Article 6 TEU. An issue that was of major importance for the ECJ in 1996 was its own role as sole guardian of EU legality: Opinion 2/94 suggested that in order to discuss the compatibility of the ECHR with EU law, there was a need to select some formula concerning the relationship between the ECJ and the ECtHR. The Court’s message was clear enough: for accession to be acceptable, the ECtHR must somehow be made compatible with the EU law provisions on the Court’s jurisdiction.34 It is possible that the ECtHR’s attitude in the intervening years has persuaded the ECJ that it does not have all that much to fear from Strasbourg: the wide latitude the ECtHR gave to the EU in Bosphorus suggests that the ECtHR is not likely to step on the toes of the ECJ35; but whether the ECJ will accept a position of formal supremacy of the ECtHR is doubtful. And if that is the case, one may already legitimately start to wonder what good accession by the EU will do: if the ECJ will continue to have the latitude enjoyed under Bosphorus, then the EU might as well not accede: as long as the ECtHR refuses to exercise real scrutiny, one may as well depend on the court of public opinion and dispense with the window-dressing. 3.4  Human Rights as Foundational Myth? That is not to say that accession will not do any good. From some perspective, no doubt, it will be useful, both for the EU itself and for those within its jurisdiction, for the EU to

31 See decision of 2 May 2007 in Joined Cases Behrami & Behrami v. France (Appl. No. 71412/01) and Saramati v. France and Others (Appl. No. 78166/01). 32 See Case C-159/90, Society for the Protection of Unborn Children v. Stephen Grogan and Others [1991] ECR I-4685. 33 See, e.g., Case C-112/00, Schmidberger v. Austria [2003] ECR I-5659, and Case C-36/02, Omega Spielhallen v. Oberbürgermeisterin Bonn [2004] ECR I-9609. 34 See Opinion 2/94 (ECHR) [1996] ECR I-1759, esp. para. 20. 35 See decision of 30 June 2005 in Case Bosphorus v. Ireland (Appl. No. 45036/98).

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Jan Klabbers accede to the ECHR. The simple reason for this is that some commitment is, usually, better than none at all or, colloquially, if it will not do much good, it will not do much harm either. The political costs for the EU are low, if not entirely non-existent. It would lose some of the leeway it now has, but gain some credibility in its foreign affairs, with charges of ‘double standards’ or ‘hypocrisy’ being less likely if the EU can demonstrate that it too is bound by external human rights standards. And this will be all the more useful given the EU’s attempt to posit itself as a global power and, to some extent, as the humane counterpart to a bullying US. Yet, it is doubtful whether accession to the ECHR can do what the EU seems to hope or expect it to do, namely to provide it with a new foundational myth to justify the existence of the EU and help raise its input legitimacy. The problem is that reliance on human rights, in particular on the type of civil and political rights enshrined in the Convention, is unsuitable for this purpose and, as historians suggest, always has been: people just do not rally around civil liberties. These are indispensable, to be sure, and a sine qua non for governance in the 21st century, but are not the sort of political project that engenders political loyalties and allegiances. This is so for, by and large, three reasons. First, when it comes to human rights, the EU is a relative newcomer. It is fitting, of course, that to the extent that it exercises public power, the EU’s public power should be held to scrutiny.36 There is no particular reason why EU activities should not be tested against accountability standards, and by the same token, there is no reason why human rights should not be included amongst those standards. That said though, it is undeniable that in many, perhaps most member states of the EU, fundamental human rights protection is more settled and more solidly anchored than in the EU qua polity. Ironically, the ambivalent attitude of the EU towards human rights has resulted in it losing valuable time: had the EU taken human rights more seriously from the beginning, or at least from the time of the Solange challenge, its human rights record would have been far more convincing than the wishy-washy strategy it opted for, even with respect to its own Charter on Fundamental Rights: useful, but not binding until recently. As so often, having one’s cake and eating it too (in this case, having the benefits of a human rights instrument without actually being bound) turned out to be ill-advised. So while it is welcome that EU acts will be scrutinized and to have the EU accede to the ECHR, to the (limited) extent that civil liberties generate political loyalties these have, to a large extent, already been generated by the member states, and as long as member state protection is more serious and runs deeper than the protection offered by the EU, there is little reason to expect people to change their allegiances and loyalties.

36 See e.g., C. Harlow, Accountability in the European Union, Oxford University Press, 2002; M. Bovens, D. ­Curtin & P. ‘t Hart (Eds.), The Real World of EU Accountability: What Deficit?, Oxford University Press, 2010.

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3  On Myths and Miracles: The EU and Its Possible Accession to the ECHR There is, incidentally, a fairly plausible counter-argument conceivable, and it goes something like this. With globalization, the latitude for purely national politics (and for international relations between states, as traditionally conceived) is rapidly diminishing. Globalization demands new sites for the conduct of politics, and the EU may well be such a new site.37 If so, then acceding to the ECHR would not so much eat up political capital currently enjoyed by the EU’s member states, but represent an indispensable step to organize the EU as such a new site for politics – and get it recognized as a legitimate site, for without human rights protection, legitimacy might be hard to come by. This, however, posits human rights and the other Copenhagen criteria as necessary, but not yet sufficient conditions, and it may not overcome the second and third reasons why accession may not be all that helpful. The second reason why not too much must be expected from ECHR accession resides in the circumstances that, ironically perhaps given the ambition to rally around the ECHR, civil and political rights tend to foster individualism and perhaps even selfishness rather than the sense of solidarity that the EU so craves for. This is hardly a novel point: Michael Sandel already pointed out some three decades ago that an insistence on individual rights may lead to what he called the ‘republic of the unencumbered self ’: the creation of rights tends to stimulate selfishness in public affairs.38 If I have a right to enjoy my property, then it should not be expropriated, even for the greater good. If I have a right to express myself freely, then considerations such as politeness or propriety shall not necessarily stop me. In short, the standard critique of rights, as accepted both by conservatives (who use it to combat social and economic rights) and by progressives (who use it to combat civil and political rights) is that rights, whatever their use in individual cases, do not tend to foster a spirit of solidarity. They do not engender a community of fate; instead, they tend to contribute to alienation: each man is an island in the full enjoyment of his rights. The sobering net result is this: the EU cannot expect anyone to rally around the idea that the EU now too guarantees freedom of expression, or the right to property. Third, the EU and the ECHR are built on radically different political theologies. The EU’s foundational story, in the aftermath of World War II, was that peace would result from economic cooperation and prosperity: prosperous nations do not go to war, at least not with each other, because they have no incentive to. The preamble to the Treaty establishing the European Economic Community (hereinafter EEC Treaty), not by accident, revolved around ‘economic and social progress’, and stipulated that by ‘pooling their resources’ the member states could stimulate peace and liberty. This mindset has been a constant presence, and is still left untouched in the TFEU, the latest incarnation of the EEC Treaty. It

37 See generally, U. Beck, Nachrichten aus der Weltinnenpolitik, Suhrkamp, Berlin 2010. 38 See M. Sandel, ‘The Procedural Republic and the Unencumbered Self ’, 12 Political Theory, 1984, pp. 81-96.

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Jan Klabbers is only the TEU which refers to human rights, and even then does so in the person of the member states: the preamble confirms the member states’ attachment to human rights, democracy and the rule of law, not that of the EU itself. Moreover, the preamble of even the most recent TEU, as amended at Lisbon, does not posit any idea about human rights and their relationship to peace and justice. It celebrates human rights as part of a European tradition and draws inspiration from the “cultural, religious and humanist inheritance of Europe”, but there is no record of any idea of what human rights are for. While this may be interpreted, benignly, as a radical dismissal of the instrumentality of human rights (human rights thus have value in and of themselves), it may also be seen as a thoughtless reference akin to those promised by of marketing people who cast everything in terms of human rights: according to marketeers, we may have a human right to such things as a nice kitchen, or to a decent cup of coffee in the morning. Such references are meaningless because, first, we still need to pay for those nice kitchens or decent cups of coffee, and second (and more seriously), by utilizing the human rights language for such trivialities, they strip it of all meaning. The EU started life as an economic interest club and, in essence, still is an economic alliance. It may be an economic alliance with a number of additional tasks, but those are all reducible to the basic sentiment of creating peace through prosperity. The EU’s activities in the fields of environmental protection or, indeed, even human rights, are all adjuncts to the basic idea of the EU as an economic alliance of European states. And where the EU refers to human rights, it does so without an underlying idea and, lest we forget, in the part that until Lisbon was deliberately kept far away from ‘the Community method’. The ECHR, by contrast, is based on the idea that peace depends not so much on prosperity, but on civil liberties. Justice and peace, so the preamble proclaims, depend on the observance of human rights, nothing less. Here, human rights are thought instrumental to the achievement of peace and justice. The underlying philosophy, therewith, is radically different from that underlying the EU. The fact that the philosophies underlying the EU and the ECHR may be radically different does not automatically render them incompatible, and liberal theorists have spent a good deal of energy over the last two decades trying to present a unified, or at least harmonized, rendition of human rights and the market beyond the Hayekian equation of the two, or of democracy and capitalism, often invoking (as does the EU) the spirit of Kant.39 Thus far though, none of these has been considered very successful. And perhaps most damaging to the EU’s project is that the causality may well lie in the reverse position: since capitalism and the market tend to destroy other allegiances (nation,

39 See e.g., J. Rawls, The Law of Peoples, Harvard University Press, Cambridge MA 1999. Much of this kind of approach builds on I. Kant, Zum ewigen Frieden: ein philosophischer Entwurf, Reclam, Stuttgart 1984 [1795].

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3  On Myths and Miracles: The EU and Its Possible Accession to the ECHR class, ethnic group, religious affiliation), they are themselves in need of being propped up, instead of providing people with allegiances. Some have remarked that, as a result, capitalism still needs the nation-state,40 even within a globalized frame, and by the same token, capitalism may be well-advised not to throw out religion, class and ethnicity with the liberal market-oriented bathwater. 3.5  To Conclude Ironically, then, the problem would seem to be that the two stories the EU wishes to tap into in order to bolster its populations’ allegiance and therewith its own legitimacy may both be counterproductive. Human rights and the market alike, both stimulate the very sort of alienation and individualization that are difficult to reconcile with a veritable sense of society and solidarity. The market, reified in the EU since the ‘costs of non-Europe’ were identified in the early 1980s, does so by making all compete against all, by creating winners and losers, and by pitting each and everyone against each other. Human rights, figuring so prominently since the early 1990s, alienate more subtly, by making people demanding and by making them abdicate any sense of social responsibility: the rightsoriented citizen cares little about her neighbours, let alone about people in faraway places. The drafters of the Universal Declaration (again largely steeped in more communitarian traditions) realized as much when they closed the Universal Declaration with a handful of solidarity clauses, ranging from the right to be part of a community to the right to live in a decent social order, and reminding everyone that rights came with duties and could not be seen as absolutes justifying domination over others. As noted, there are decent reasons why the EU should accede to the ECHR, provided only that the legal and political problems of accession can be overcome – much will depend on the attitude of the current parties to the ECHR. Perhaps the main reason, pragmatically speaking, is that only a firm and binding human rights commitment can prevent the charge of ‘double standards’ from being levied against the EU. But if the EU is looking at accession to the ECHR in order to create a new legitimating narrative for itself and therewith bolster the integration project, it will be disappointed. The market and human rights, capitalism and democracy, are not the most natural of partners, and it is at the very least arguable that the EU needs a ‘thicker’, more substantively oriented self-justification than either the anodyne market or the near-empty vessels of human rights may ever be expected to provide. It is perhaps a great irony that the one truly European invention that could have stimulated such a thicker conception of what Europe stands for, and therewith could have provided

40 See Mazower 1998, p. 409.

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Jan Klabbers the EU with a useful focal point to boost its legitimacy, has become anathema. Now that on the national level the welfare state has been effectively dismantled, the EU could have come to occupy the void and really posit itself as a worthwhile project, perhaps even a viable alternative for its member states.41 Then again, given that those same member states end up deciding the course for Europe,42 such was perhaps never likely, and that in itself already suggests that not too much should be expected from acceding to the ECHR: accession involves little cost, and thus can also, in the language of the market, not be expected to yield immense benefits. More generally, the structural problem, as Michael Walzer once explained, is that a rallying project meeting with large-scale approval can only be a thin one, whereas what the EU needs, arguably, is a thicker project. Yet, in Walzer’s words, “with thickness comes qualification, compromise, complexity, and disagreement.”43 In this light, perhaps an appeal to a relatively thin image involving human rights, the market, democracy and the Rule of Law is the best an expanded EU can strive for, and if that is the case, accession to the European Convention may well be a useful idea. But no miracles should be expected.

41 It has been observed, however, that the welfare state has come to depend to an uncomfortable extent on the labour of often undocumented migrants, which creates its own legitimacy issues and, ironically perhaps, comes with serious human rights concerns. See Beck 2010, p. 41. 42 I have argued elsewhere that the EU has ceased to be a federalist project since the heady days of the Maastricht Treaty, and has been firmly (re-)appropriated by its member states. See J. Klabbers & P. Leino, ‘Death by Constitution? The Draft Treaty Establishing a Constitution for Europe’, 4 German Law Journal, 2003, pp. 1293-1305. 43 See Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad, Notre Dame University Press, Notre Dame, IN, 1994, p. 6.

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4

The International Responsibility of the European Union: a Basic Interpretive Pattern

Ottavio Quirico* 4.1 Introduction The legal personality of the European Community (EC) and of the European Union (EU) has been the subject of debate for a long time. Although before Lisbon there was quite a uniform consensus as to the legal personality of the European Community within the framework of the three-pillared structure of the Union,1 with the entry into force of the Lisbon Treaty the EU has definitely been granted legal personality (Art. 47 of the Treaty on the European Union [TEU]), and thus enjoys unitary status in international law. This status is not equivalent to that of states but, technically speaking and despite the specific structure of the Union, is the same as that of international organizations. In other words, the EU is the holder of international obligations that it can negotiate and might breach by way of unilateral or multilateral acts and omissions. Horizontally, from the viewpoint of primary rules (1), the main reference for understanding the international responsibility of the EU is the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations.2 The 2011 ILC’s Draft Articles on the Responsibility of International Organizations provide complementary guidelines as to secondary regulation (2),3 according to the Kelsenian normative categorisation.4

* Lecturer, School of Law, University of New England, New South Wales, Australia. E-mail: oquirico@une .edu.au / [email protected]. 1 See ECJ, Commission v. Council (European Agreement on Road Transport), Case 22-70, Judgment of 31 March 1971, at para. 14. For a scholarly opinion see M. Cremona, “External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Effects of International Law”, EUI WP No. 2006/22, at p. 35. 2 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, UN Doc. A/Conf.129/15, adopted on 21 March 1986, not into force yet. 3 ILC’s Draft Articles on the Responsibility of International Organizations (2011) [henceforth the ILC’s Draft Articles], in Report of the ILC to the General Assembly on the Work of Its Sixty-Thirds Session, UN Doc A/66/10 (2011), at para. 87. 4 H. Kelsen, Pure Theory of Law, Peter Smith, Gloucester, 1989, at p. 75.

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Ottavio Quirico Temporally, it is also useful to distinguish contractual responsibility arising from the exercise of international regulatory power (1),5 from non-contractual responsibility arising from international non-regulatory conduct (2). Vertically, in light of the Hartian normative categorisation,6 the layered structure of the EU must be taken into account, i.e., primary EU regulation (1), including the TEU, Treaty on the Functioning of the European Union (TFEU), and Charter of Fundamental Rights of the European Union (CFREU); secondary EU regulation (2), essentially encompassing regulations and directives (droit dérivé); and tertiary member states’ regulation (3).7 Based on this analytical framework, the present chapter first sketches the international regulation of the responsibility of international organizations, and secondly, explores the responsibility of the EU in light of the entry into force of the Lisbon Treaty. Against the background of the relationship between EU law and international law, this chapter seeks to define a basic paradigm to understand the division of responsibility between the EU and its member states for breaches of international obligations. 4.2  The Responsibility of Intergovernmental Organizations for Internationally Wrongful Acts The framework for the responsibility of governmental organizations within international law is defined by the ILC’s Draft Articles.8 These rules have been included since 2000 in the long-term work of the ILC, when the Draft Articles on State Responsibility were going to be adopted under the supervision of Professor James Crawford.9 The Draft Articles deal with both the responsibility of international organizations for internationally wrongful acts and the responsibility of states for acts in connection with the conduct of international organizations (Art. 1). By “international organization” the Draft Articles mean an “organization established by a treaty or other instrument governed by international law and possessing its own legal personality”, which includes “states and other [member] entities” (Art. 2(a)).10 5 For a private law approach to international law see F. Kratochwil, “The Limits of Contract”, 5 EJIL 1994,­ p. 465; D. Anzilotti, Cours de droit international, Sirey, Paris, 1929. 6 H. Hart, The Concept of Law, Clarendon Press, Oxford, 1961, at pp. 79 et seq. 7 See O. Quirico, “Substantive and Procedural Issues Raised by the Accession of the European Union to the European Convention on Human Rights”, 20 It YIL 2010, p. 31, at pp. 32-36. 8 For a general presentation of the responsibility of international organizations, see C.F. Amerasinghe, ­Principles of the Institutional Law of International Organizations, Cambridge University Press, Cambridge, 2005, at pp. 384 et seq. 9 UN General Assembly, Official Records, Fifty-fifth Session, Supplement No. 10 (A/55/10), at paras. 726-729. 10 See M. Mendelson, “The Definition of ‘International Organization’ in the ILC Current Project on the Responsibility of International Organizations”, in M. Ragazzi (Ed.), International Responsibility Today – Essays in Honour of O. Schachter, Martinus Nijhoff, Leiden, Boston, 2005, p. 371; N. White, The Law of International Organizations, Manchester University Press, Manchester, 2005, at pp. 32 et seq.

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4  The International Responsibility of the European Union These norms are directly relevant to the EU insofar as they define the framework for the responsibility of the Union as such as well as for the division of responsibility between the Union and its member states. According to the ILC’s Draft Articles, the responsibility of an international organization arises from negative or positive conduct attributable to the organization and in breach of an international obligation (Art. 3). Based on classical international legal theory,11 the conduct of the agents of an organization is considered attributable to the organization itself (Art. 6). Furthermore, the conduct of a state organ is attributable to an international organization that exercises effective control over it (Art. 7). An international organization is also regarded as responsible when it compels or authorizes a state to adopt measures that are not in conformity with an international obligation (Art. 17). Typical rules on circumstances precluding wrongfulness (Arts. 20 et seq.), sanctions (Arts. 28 et seq.), invocation of responsibility (Arts. 43 et seq.), and countermeasures (Art. 50 et seq.) apply. Breaches of obligations cogentes are of special gravity and entail specific (collective) sanctions (Arts. 41 and 42). Thus, a general pattern is envisaged setting out substantive and procedural rules, which can be temporally re-conceived based upon: (1) the breach of an international obligation and its attributability; (2) invocation of responsibility; (3) sanctions and (4) their enforcement. Within this context, two basic issues are decisive in attributing responsibility to an international organization, namely, (1) identifying the perpetrator of an alleged breach; and (2) identifying the bearer of the international obligation concerned by the alleged breach.12 The Draft Articles on the responsibility of international organizations have been criticized, especially insofar as they do not take into account the difference between various existing organizations, such as the EU, United Nations (UN), World Trade Organization (WTO), and UN Educational, Scientific and Cultural Organization (UNESCO).13 In particular, upon request by the UN General Assembly and the ILC, the European Commission submitted comments on the Draft Articles and pointed out that the EC/EU is not a “classical” international organization.14 In fact, the EC/EU has specific legislative powers that make 11 Cf. I. Brownlie, Principles of Public International Law, Oxford University Press, Oxford, 2008, at pp. 433­ et seq. and 675 et seq. 12 According to M. Hoffmeister, “Litigating against the European Union and Its Member States – Who Responds under the ILC’s Draft Articles on International Responsibility of International Organizations?”, 21/3 EJIL 2010, p. 723, at p. 745, in order to attribute internationally unlawful conduct to the EU these questions should be reformulated as follows: (a) Who is the perpetrator of the alleged breach? (b) Who has the ability to bring an end to the alleged breach? (c) Who bears the international obligation invoked concerning the alleged breach? 13 M. Wood, M. Vicien-Milburn & E. Wilmshurst, Legal Responsibility of International Organizations in International Law, Chatam House, 2011, pp. 5 et seq. See also F. Hoffmeister & P.J. Kuijper, “The Status of the European Union at the United Nations: Institutional Ambiguities and Political Realities”, in J. Wouters, F. Hoffmeister & T. Ruys (Eds.), The United Nations and the European Union: an Ever Stronger Partnership, TMC Asser Press, The Hague, 2006, p. 9. 14 See ILC, Responsibility of International Organizations, Comments and Observations Received from International Organizations, UN Doc. A/CN.4/4/545 (2004) at p. 5.

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Ottavio Quirico it – at least in part – a “supra-state”.15 However, the Draft Articles are an important general reference on the matter and provide useful guidance in exploring the responsibility of different organizations – a complex area of law that is still underdeveloped.16 In fact, it would be extremely difficult to exhaustively regulate all of the different international organizations under such a general instrument. As to international practice, in 1949 the International Court of Justice (ICJ) stated that the UN has objective legal personality, separate from that of its member states, and is thus a subject of international law liable for damage inflicted on third parties.17 Furthermore, in an advisory opinion delivered in 1980 the Court added that “international organizations are subjects of international law and as such are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties”.18 Thus, customary and treaty law as well as general principles of law are binding upon international organizations.19 In the same vein, the European Court of Justice (ECJ) stated that the EC “must respect international law in the exercise of its powers”,20 and further established its jurisdiction under Article 234 of the EC Treaty to review the legality of a Community act based on the infringement of international legal rules.21 In light of the three-layered structure of the Union’s regulatory system, it is therefore clear that secondary EU acts must be in conformity with international legal obligations established by general principles of law and treaty law. In contrast, the relationship between primary EU regulation and international law is a complex issue, which should be approached based on the primacy – at least – of general principles of international law, as provided for in Articles 3(5) and 21 of the TEU.22 15 In contrast, the argument that the EC/EU is a global actor party to different international agreements is not fully convincing, since usually international organizations can become parties to international treaties according to the 1986 Vienna Convention (see, more extensively, S. Talmon, “Responsibility of International Organizations: Does the European Community Require Special Treatment?”, in M. Ragazzi (Ed.), ­International Responsibility Today, Martinus Nijhoff, Leiden, Boston, 2005, p. 405, at pp. 405-407). 16 I. Brownlie, “The Responsibility of States for the Acts of International Organizations”, in Ragazzi, 2005,­ p. 355, at p. 357. 17 See ICJ, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, ICJ Rep.1949, p. 174. See also Wood et al. 2011, at p. 2. 18 ICJ, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion of 20 December 1980, ICJ Rep. 1980, p. 73, at pp. 89-90. 19 See White 2005, at p. 216. 20 ECJ, Poulsen, Case C-286/90, Judgment of 24 November 1992, at para. 9. See also ECJ, Kadi, Al Barakaat International Foundation v. Council, Joined Cases C-402/05P and C-415/05P, Judgment of 3 September 2008, at para. 291. 21 ECJ, Racke GmbH & Co. v. Hauptzollamt Mainz, Case C-162/96, Judgment of 16 June 1998, at paras. 45-46, where the ECJ stated that “the European Community must respect international law in the exercise of its powers” and is therefore required “to comply with the rules of customary international law”. 22 P. Mori, Rapporti tra fonti nel diritto dell’Unione Europea – Diritto primario, Giappichelli, Torino, 2010, at­ pp. 7-8; Cremona, 2006, at pp. 27-28, 33 and 36. However, the priority of international agreements – especially­ those embodying fundamental international law principles – over primary EU rules cannot be excluded, as provided for in Article 6(3) of the TFEU, concerning the relationship between, on the one hand, the TEU and the TFEU and, on the other, the ECHR.

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4  The International Responsibility of the European Union 4.3  The International Responsibility of the European Union in Light of the Lisbon Treaty 4.3.1    A Stronger International Legal Commitment and a More Transparent Division of Competences between the European Union and Its Member States Subjectively, the Lisbon Treaty conferred unitary legal personality upon the EU, which brought about the abolition of the (horizontally) three-pillared structure of the Union, including the EC (1), Common Foreign and Security Policy (CFSP) (2), and Police and Judicial Cooperation in Criminal Matters (PCJ) (3). This is of particular relevance to the division of competences. In fact, before Lisbon acts within the first pillar were adopted in accordance with legislative procedures. In contrast, the other two pillars were based on intergovernmental cooperation among member states. Owing to the three-pillared structure of the Union, the EC enjoyed separate legal personality, but several competences overlapped. This gave rise to confusion in the conclusion of international agreements, since it was possible for the EU to conclude treaties relating to different pillars, but different procedures were necessary as to the EC, and thus third parties negotiated with and were bound towards different legal entities.23 Under the Treaty of Lisbon the three pillars merged into the EU, where legislative acts are adopted based mainly on co-decision. Externally, given that it is vested with legal personality (Art. 47 of the TEU), the EU is now able to conclude treaties in the fields falling within its competence. This makes it clear to third parties that they negotiate with and are bound towards a unique legal person, acting according to procedures established under Article 218 of the TFEU.24 This also makes it clear that the EU as such is responsible for breaches of international legal obligations. Concerning extra-contractual liability, the Treaty of Lisbon strengthens the EU commitment to respect fundamental international legal obligations, in both its internal and external policy. This core commitment is embodied in Articles 2, 3, and 21 of the TEU, but is fragmentarily enforced also through other rules, such as Article 11 of the TFEU. Thus, the EU declares its intention to respect and promote basic international legal principles such as peace, sustainability, human dignity, freedom, democracy, equality, the rule of law 23 See, for instance, ECJ, European Parliament v. Council and European Parliament v. Commission, Joined Cases C-317-04 and C-318-04, concerning the agreement between the EC and the US on Passenger Name Records wrongly concluded based on Art. 95 of the EC Treaty and renegotiated based on Arts. 24 and 38 of the TEU with a change in the Treaty partner. See also M. Cremona, “Defining Competence in EU External Relations: Lessons from Treaty Reform Process”, in A. Dashwood & M. Marescau (Eds.), Law and Practice of EU ­External Relations – Salient Features of a Changing Landscape, Cambridge University Press, Cambridge, 2008, p. 34, at p. 38. 24 J.-C. Piris, The Lisbon Treaty – A Legal and Political Analysis, Cambridge University Press, Cambridge, 2010, at p. 87; C. Damians, G. Davies & G. Monti, European Union Law: Cases and Materials, Cambridge University­Press, Cambridge, 2010, at p. 633.

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Ottavio Quirico and human rights. This means that, if in the pre-Lisbon period EC responsibility arose in practice mostly out of violations of international agreements,25 in the post-Lisbon era EU international responsibility is more likely to arise also out of violations of general international legal obligations.26 As regards contractual liability, the Treaty of Lisbon clarifies the internal division of competences between the EU and its member states. However, this division also applies to the exercise of external EU power, and thus to the conclusion of international agreements, by virtue of the principle of parallelism. According to this principle, internal EU powers are necessarily matched by parallel external competences.27 The doctrine of parallelism is considered valid in this paper and necessary to remedy the uncertainty of the language of Article 216(1) of the TFEU.28 More specifically, the Lisbon Treaty introduces a precise categorization in the founding Treaties and distinguishes three main types of competences: exclusive competences, shared competences, and supporting competences (Art. 2 of the TFEU), including a nonexhaustive list of the fields governed by each of them (Arts. 3-5 of the TFEU). Therefore, the boundaries of each competence are more clearly defined and transparent, both internally and externally. This attempt at clarification takes place in the vein of the Laeken Declaration29 and reduces the necessity of resorting to implied powers.30 Moreover, it aims to disentangle potential conflicts of competence that emerged in the past between the EC and its member states and to facilitate treaty implementation.31 Within this framework, Article 3(1) of the TFEU expands and clarifies the areas of exclusive EU competence, largely by codifying previous ECJ case law.32 In the regulatory areas where it is vested with exclusive competence, the EU is the only subject able to legislate. As a consequence, the role of the member states is limited to the application of EU acts, 25 See Cremona 2006, at p. 27; Kuijper and Paasivirta, “Further Exploring International Responsibility: The European Community and the ILC’s Project on Responsibility of International Organizations”, 1 IOLR 2004, p. 111, at p. 116. 26 It is, however, important to remark that the status and content of fundamental international legal obligations, i.e. general principles of (international) law, and their relationship to EU law, remain subject to dispute (see, for instance, Brownlie 2008, at pp. 4 et seq. and 16 et seq.). 27 J. Klabbers, “The EU and International Law – Personality, Capacity, Powers”, ; Summaries of EU Legislation – International Agreements, . 28 Art. 216(1) of the TFEU provides: “The Union may conclude an agreement with one or more third countries or international organizations where the Treaties so provide” (emphasis added). Arts. 2-5 of the TFEU, which now regulate the internal competences of the Union, literally do not “provide for” external competences. 29 Laeken Declaration on the Future of the European Union, 15 December 2001. 30 This doctrine nevertheless still applies by virtue of Art. 216 of the TFEU, which provides: “The Union may conclude an agreement with one or more third countries or international organizations … where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties”. On the necessity of resorting to implied powers in external EU action, see Cremona 2008, at pp. 50 et seq. 31 Ibid., at pp. 40 et seq. 32 On exclusive EC competence before Lisbon, see Cremona 2006, at pp. 2 et seq.

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4  The International Responsibility of the European Union unless the Union delegates power to states, under Article 2(1) of the TFEU. Reflexively, the EU is the only subject able to conclude parallel international treaties. Exclusive competence is provided for in the areas of customs union; competition rules necessary for the functioning of the internal market; monetary policy for the member states whose currency is the euro; conservation of marine biological resources under the common fisheries policy; and common commercial policy. Moreover, according to Articles 3(2) and 216 of the TFEU exclusive competence exists for the conclusion of an international agreement when this is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or insofar as the conclusion of a treaty may affect common rules or alter their scope. Outside the areas covered by exclusive EU competence, the Union is vested with shared competence, supporting competence, and special competence (Article 2 of the TFEU). Under Article 4(1) of the TFEU, shared competences are general prerogatives, according to which both the EU and its member states are authorized to adopt binding acts and parallel international treaties. According to Article 4(2) of the TFEU, the EU has (preferential)33 shared competence in the following areas: internal market; social policy aspects defined in the TFEU; economic, social and territorial cohesion; agriculture and fisheries, excluding the conservation of ­marine biological resources; environment; consumer protection; transport; trans-­ European networks; energy; area of freedom, security and justice; and common safety concerns in public health matters provided for in the TFEU. Under Article 4(3)-(4) of the TFEU, the EU has (non-preferential)34 shared competence with respect to the member states in the matter of research, technological development, space, development cooperation, cooperation with developed countries, and humanitarian aid. Article 6 of the TFEU provides that the EU can only intervene to support, coordinate or complement the action of member states in the areas of protection and improvement of human health, industry, culture, tourism, education, vocational training, youth and sport, civil protection, and administrative cooperation. The EU also has special competences in certain fields. In particular, under Article 5 of the TFEU the Union is responsible for ensuring the coordination of economic and employment policies, and thus the EU defines the guidelines to be followed by member states. Under Article 24 of the TEU, the Union has competence in all fields connected with the CFSP, which is defined particularly by the President of the European Council and the High Representative of the Union for Foreign Affairs and Security Policy. 33 This means that a member state can exercise regulatory power only if the EU does not exert its competence. 34 Article 4(3)-(4) of the TFEU provides that “the exercise of that [EU] competence shall not result in member states being prevented from exercising theirs”.

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Ottavio Quirico Finally, the “flexibility clause” – established under Article 352 of the TFEU – vests the EU with the ability to act beyond the powers conferred upon it by the Founding Treaties, if a pursued objective so requires.35 4.3.2    The Relation between Competences, International Obligations and Responsibility of the European Union and Its Member States The reshuffle of competences introduced by the Lisbon Treaty, especially with regard to the basic distinction between exclusive and non-exclusive competences, has an important impact on the attribution of responsibility to the EU. The fact that the Lisbon Treaty clarifies the Union’s regulatory power is a crucial factor for determining international responsibility in contrahendo. This also influences – at least to a certain extent – the attribution of contracted international obligations to the EU and its member states, and thus ultimately the determination of the subject responsible for their breach, in light of Article 4 of the ILC’s Draft Articles.36 The core regulation in the matter is provided for in the above-mentioned Articles 2(1) and 3 of the TFEU, according to which member states can no longer act internally and conclude parallel external treaties in areas covered by exclusive EU competence, unless they are so empowered by the Union. On the international plane, this regulation entails that in areas of exclusive competence the Union is the sole bearer of responsibility in ­contrahendo,37 for instance in the field of the common commercial policy. As to post-contractual responsibility, given that exclusive EU competence generates international obligations for both the EU and its member states (Art. 216(2) of the TFEU), responsibility of the EU might arise because of the conduct of member states’ organs. So far, for instance, the responsibility of the EC has been challenged in addition to that of the member states, either jointly or separately, for breach of intellectual property rights under the TRIPS agreements, whose commercial aspects are now encompassed by the CCP and thus exclusively regulated by the EU.38 Areas covered by shared competence under Article 4 of the TFEU may lead to international agreements concluded by both the EU and its member states. Within this context, 35 For a clear presentation of the limits of the powers of the EU, see Cremona 2008, at pp. 47-50. 36 See Cremona 2006, at p. 24; Kuijper and Paasivirta 2004, at p. 114. 37 R.A. Wessel, “The EU as a Party to International Agreements: Shared Competences, Mixed Responsibilities”, in Dashwood and Marescau 2008, p. 152, at p. 186; Damians et al. 2010, at p. 647. 38 WTO, Denmark, Measures Affecting the Enforcement of Intellectual Property Rights, Notification of a Mutually Agreed Solution, WT/DS83/2, IP/D/9/Add.1, 13 June 2001; Greece – Enforcement of Intellectual Property Rights for Motion Pictures and Television Programs, Notification of a Mutually Agreed Solution, WT/DS125/2, IP/D/14/Add.I, 26 March 2001; EC – Enforcement of Intellectual Property Rights for Motion ­Pictures and Television Programs, Notification of a Mutually Agreed Solution, WT/DS125/1, IP/D/13/Add.1, 26 March 2001.

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4  The International Responsibility of the European Union the attribution of international obligations to the EU and its member states is not always clear cut, especially in the case of mixed agreements, i.e. agreements jointly negotiated by the EU and its member states.39 As a general rule, it is usually maintained that whenever it proves impossible to attribute certain parts of a given agreement exclusively to either the Union or member states­ – namely because of the absence of an explicit and clear declaration of competence towards third parties40 – if a third state asks in vain for information as to the division of responsibility between the EU and its member states, or receives an uncertain answer, both the EU and its member states should be jointly and severally liable for contractual – at least in the case of mixed agreements – and extra-contractual international responsibility.41 Thus, for instance, in a case concerning the application of the EC–ACP Lomé Convention on Development Aid, to which both the EU and its member states are parties under shared competence, the ECJ stated that the Community and its member states are jointly liable to third parties for the fulfilment of treaty obligations, unless specific provisions of the Convention explicitly provide for separate responsibility.42 This approach, which envisages a sort of “confusion” of responsibility, complements the commitment of the EU and its member states to cooperate in the negotiation, conclusion and implementation of international agreements in the case of shared competence.43 The logic of joint liability provides a procedural solution to the tension between third states’ demand for certainty as to responsibility and the Union’s concern for autonomy. However, a case-by-case assessment seems necessary, and formal mechanisms should preferably be established to disentangle the division of responsibility between the EU and its member states. For instance, Annex IX to the UN Convention on the Law of the Sea (UNCLOS) and Article 4(5) of the Kyoto Protocol, to which both the EU and its member states are parties, provide for mechanisms for apportioning responsibility between the EU and its member states. Similarly, the Draft Legal Instrument on the Accession of the EU to the European Convention on Human Rights (ECHR), to which all EU member states are already parties, deals with the establishment of a system for clearly dividing responsibility 39 Cremona 2006, at p. 17. 40 Talmon 2005, at p. 418. 41 For a theoretical framework of joint and several responsibility applied to the division of responsibility ­between international organizations and their member states, see Brownlie 2005, at pp. 361-362; S. Yee, “The Responsibility of States Members of an International Organization for Its Conduct as a Result of Membership or Their Normal Conduct Associated with Membership”, in Ragazzi 2005, p. 435; Kuijper & Paasivirta 2004, at pp. 122-123. 42 ECJ, Parliament v. Council, Case C–316/91, Judgment of 2 March 1994, at para. 29. See also Cremona 2006, at p. 21; Talmon 2005, at p. 417; J. Heliskoski, Mixed Agreements as a Technique for Organising the International Relations of the European Community and Its Member States, Kluver Law International, The Hague, 2001,­ at pp. 161-166. 43 See D. Verwy, The European Community, the European Union and the International Law of Treaties, ­Cambridge University Press, Cambridge, 2004, at p. 158.

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Ottavio Quirico between the EU and its member states, including a co-defence mechanism in the case of joint responsibility.44 In practice, before the Lisbon Treaty a claim for international responsibility against the EC never failed for the reason that it was brought against the wrong party.45 In fact, the EC was considered bound as a signatory in respect of a whole agreement, in the case of both exclusive and shared competence.46 4.3.3    Discretionary Power as a Basic Criterion to Ultimately Divide International Responsibility between the EU and its Member States In light of Article 6 of the ILC’s Draft Articles, the EU can act through its ‘institutions, bodies, offices, and agencies and their servants”, and is thus liable for regulatory and nonregulatory acts of its organs. Thus, attribution of responsibility for breach of international obligations is relatively simple when the EU acts exclusively through its organs (Art. 291(2) of the TFEU). In contrast, attribution of responsibility is more problematic when member states’ organs are vertically involved in the implementation of EU internal or external acts through their administrative organs under Article 291(1) of the TFEU.47 In principle, whenever the administration of a member state mechanically implements Union’s acts, for instance, in the case of a regulation, only the EU should be responsible.48 In contrast, when states enjoy a margin of discretionary power in implementing the Union’s acts, they exercise discretion between different regulatory options. The question thus arises as to whether such limited control over member states’ conduct is sufficient to attribute state conduct to the Union. According to an important scholarly opinion, attribution of member states’ conduct to the Union is possible based on the ECJ jurisprudence, which, dealing with cases where 44 See Steering Committee for Human Rights (CDDH)-UE and European Commission, Draft Legal Instrument on the Accession of the EU to the ECHR, CDDH-UE(2011)16, 19 July 2011, Article 3. 45 G. Gaja, Second Report to the ILC on Responsibility of International Organizations, UN Doc. A/CN.4/541 (2004) at p. 6, para. 11; Kuijper and Paasivirta 2004, at p. 123. 46 ECJ, Meryem Demirel v. Stadt Schwäbisch Gmünd, Case C-12/86, Judgment of 30 September 1987, at­ para. 7; WTO, Appellate Body, European Communities – Custom Classification of Certain Computer Equipment, WT/DS62/R, WT/DS67/R, WT/DS68/R, Report of 5 February 1998. See also A. Rosas, “The European Union and International Dispute Settlement”, in L. Boisson de Chazournes, C. Romano & R. Mackenzie (Eds.), International Organizations and International Dispute Settlement: Trends and Prospects, Transnational Publishers, 2002, p. 49, at p. 57. 47 See Hoffmeister 2010, at pp. 723 et seq. On the attribution of the conduct of member states to international organizations, see ECtHR, Grand Chamber, Agim Behrami and Bekir Behrami v. France, Application­ No. 71412/01, and Ruzhdi Saramati v. France, Germany and Norway, Application No. 78166/01, Decision on Admissibility of 2 May 2007, esp. at para. 151. 48 This stance is nevertheless controversial (see Cremona 2006, at p. 35; Kuijper and Paasivirta 2004, at pp. 126-128).

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4  The International Responsibility of the European Union member states had to implement EU directives, emphasized that the legality of member states’ measures is ultimately governed by Union law.49 Therefore, whenever EU acts govern the conduct of a member state that is in breach of an international obligation, the EU should be internationally responsible.50 The member state should, in turn, be internationally responsible based on the margin of discretionary power it enjoys, if any.51 In the same vein, in the absence of EU action, if the conduct of a member state breaches an international obligation, EU responsibility might arise for omission of due control over the organs of the member state. As a general rule, it can be logically concluded that the basic parameter to subjectively apportion responsibility between the EU and its member states is the normative control that the EU exercises (action), or is supposed to exercise (omission), over member states’ conduct. When the Union’s rules (ought to) govern the legality of Member states’ conduct, the latter should be attributable to the Union.52 Therefore, the internal regulatory competence of the EU provides a paradigm for establishing the Union’s international responsibility for conduct of its member states under its normative authority. This is consistent with Articles 7 and 17 of the ILC’s Draft Articles.53 Controversial EU Directive 2008/101, which recently included aviation activities in the EU Emission Trading Scheme, provides an interesting example for the application of this logic. In fact, Article 3(e) of the Directive provides that member states play a role in administering the annual allocation of GHG allowances in the aviation sector. However, decisions in the matter 49 See Hoffmeister 2010, at p. 742, mentioning especially ECJ, Commission v. Ireland (Mox Plant), C–459/03, Judgment of 20 May 2006. 50 Talmon 2005, at pp. 413-414. 51 But see Cremona 2006, at pp. 34-35. 52 This logic should also apply when the EU or its member states act beyond the limits of their competence, i.e. ultra vires as regards the internal division of competences. In fact, Art. 27(2) (Internal Law of States, Rules of International Organizations and Observance of Treaties) of the 1986 Vienna Convention provides that “an international organization party to a treaty may not invoke the rules of the organization as a justification for its failure to perform the treaty”. Furthermore, Art. 8 (Excess of Authority or Contravention of Instructions) of the ILC’s Draft Articles provides: “The conduct of an organ or agent of an international organization shall be considered an act of that organization under international law if the organ or agent acts in an official capacity and within the overall functions of that organization, even if the conduct exceeds the authority of that organ or agent or contravenes instructions”. 53 Art. 7 (Conduct of Organs of a State or Organs or Agents of an International Organization Placed at the Disposal of Another International Organization) provides: “The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct” (emphasis added). Art. 17 (Circumvention of International Obligations through Decisions and Authorizations Addressed to Members) provides: “1. An international organization incurs international responsibility if it circumvents one of its international obligations by adopting a decision binding member States or international organizations to commit an act that would be internationally wrongful if committed by the former organization; 2. An international organization incurs international responsibility if it circumvents one of its international obligations by authorizing member States or international organizations to commit an act that would be internationally wrongful if committed by the former organization and the act in question is committed because of that authorization” (emphasis added).

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Ottavio Quirico are taken by the EU Commission, and member states mechanically implement them. Thus, if it is assumed that EU Directive 2008/101 is inconsistent with Article 2(2) of the Kyoto Protocol,54 which provides that states must avoid unilateral action and limit or reduce GHG emissions from aviation bunker fuels through the International Civil Aviation Organisation, only the EU should be considered internationally liable for member states’ action aiming to limit GHG emissions from foreign companies in the aviation sector. Based on these premises and given that the Lisbon Treaty did not fundamentally modify the EU regulatory system – at least with regard to the basic distinction between primary and secondary EU law and “tertiary” member states’ regulation – it can be assumed that the logic of the division of responsibility in the case of intertwined acts and omissions of the EU and its member states has not changed from the pre-Lisbon period. 4.4 Conclusion The Lisbon Treaty introduced three basic changes as regards the international responsibility of the EU. First, by abolishing the three-pillared structure of the Union and by conferring legal personality upon the EU as such, the Treaty simplified and expanded EU international responsibility. Secondly, the Treaty committed the EU to enhanced respect of general international legal obligations. Thirdly, by establishing a clearer internal division of competences between the EU and its member states, the Treaty increased the transparency of parallel EU international responsibility – certainly in contrahendo, and, to a certain extent, also for breaches of contractually established international legal obligations. More specifically, as to the division of responsibility between the Union and its member states, international agreements concluded by the Union generate international obligations and responsibility for both the EU and its member states regardless of the exclusivity of competence in contrahendo. Furthermore, when acts or omissions of the EU and its member states are intertwined, responsibility should be attributed to the EU not only for acts or omissions of its organs, but also for conduct of its member states’ organs ultimately acting (or non-acting) as instruments of the Union whenever the conduct of those organs is, or ought to be, governed by the EU. The responsibility of the member states should, in turn, be based on the margin of discretionary power they enjoy, if any. Such a general scheme provides at least basic guidance in approaching issues of attribution of responsibility in the case of breaches of international obligations committed by the EU and its member states. In this respect, since liability still depends upon the unchanged three-tiered structure of the EU, the systematic criterion for dividing responsibility between the EU and its member states does not radically vary from the pre-Lisbon period. 54 On this issue, see CJEU, case C-366/10.

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5

Does the Emperor Really Have New Clothes? A Critical Assessment of the Post-Lisbon Regime of Division of Competences

Balázs Fekete* 5.1 Introduction Since the EU is an extremely complicated political entity, it has numerous different political and legal layers.1 One of these is the distribution of powers between the Union and the member states. The study of the new regime of Union competences is highly relevant in these years since it allows us to arrive at important conclusions. These conclusions are not solely of constitutional character,2 but also highlight certain general tendencies. Interestingly, the history of the Treaty Establishing a Constitution for Europe3 was a sharp indication that a federal scenario is still unimaginable under recent socio-political conditions, however, this did not mean that the drafters of the treaty neglected the use of certain elements of federalism while designing the new European constitutional architecture. The post-Lisbon regime of vertical division of powers is one of the best examples of this, since it reflects an evidently federal approach even though the federal nature of the new constitutional setting is still highly debated.4 This brief article is not a simple description of the

* Lecturer in law, Pázmány Péter Catholic University Faculty of Law and Political Sciences/Research fellow, Centre for Social Sciences, Hungarian Academy of Sciences. Email: [email protected]. The article is based on a conference lecture presented at the international conference EU Law and Policies after the Treaty of Lisbon held in Centre for Social Sciences, Hungarian Academy of Sciences. The author wishes to thank the comments of Professor Martin Nettesheim. The final version is published within the framework of Project No. TÁMOP-4.2.1.B–11/2/KMR–2011–0002 of Péter Pázmány Catholic University (Development of Scientific Research at PPKE). 1 For a general discussion see, N. Nugent, The Government and Politics of the European Union, ­Palgrave ­Macmillan, New York, 2010. 2 For a constitutionalism oriented analysis see K. Lenaerts, Federalism: ‘Essential Concepts in Evolution – The Case of the European Union’, Fordham International Law Journal, Vol. 21, No. 3, 1998, pp. 746-753. 3 Treaty Establishing a Constitution for Europe [2004] OJ C310/01. 4 For a clear-cut argumentation that the European integration has always had a federal nature see R. Schütze, From Dual to Cooperative Federalism: the Changing Structure of European Law, Oxford University Press, Oxford, 2009, pp. 1-4.

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Balázs Fekete vertical distribution of powers in the Union,5 but aims to reflect upon certain dimensions thereof from a critical point of view. Basically, three theses will be elaborated in order to highlight some controversies surrounding the recent regulation of Union and member state competences. It must also be mentioned that the following theses are by no means definitive statements; they are merely starting points for the broader academic discussion. The theses are as follows: (1) The reform of competences introduced by the Lisbon Treaty can be regarded ­neither a real revolution nor even a significant evolution, since it is of a strong conservative n ­ ature. That being said, the transformation of the legal framework of the vertical division of ­powers did not establish a qualitatively new regime. It only systematized and codified the achievements of the earlier case law of the European Court of Justice (hereinafter ECJ) and some former treaty provisions. (2) However, the real achievement of the changes is the introduction of a federal attitude and vocabulary. The text of both the Treaty on the European Union (hereinafter ‘TEU’) and Treaty on the Functioning of the European Union (hereinafter ‘TFEU’) relies on essential terms rooted in federalism such as for instance ‘exclusive’, ‘shared’ or ‘member state’ competences. Therefore, the distribution of powers between the Union and the member state is articulated in a clear federal way. Indeed, it can be regarded a real novelty compared with the prior-Lisbon regime evolving in the context of delicate and sophisticated political and judicial compromises. (3) Lastly, although the new regime was obviously inspired by a federal mindset, it cannot be equated with a real federative government. The supranational level is incomparably ‘weaker’ and less powerful in substantive terms than the central governmental level of real federations. Many important competences that would make the EU a real and functioning federal state are still lacking. As a result, fears of a silently emerging United States of Europe or European Super State are manifestly unfounded in a public law sense.

5.2 An Imperfect Conservative Reform In the words of political philosophy, ‘conservative reform’ seems to be a suitable term to describe what happened with the distribution of competences between the EU and the member states following the Lisbon reforms. Although it would be rather tempting to consider this term an apparent contradiction, this is certainly not the case. Conservative political philosophy generally accepts that the change in the order of things is both

5 For the description, see P. Craig & G. de Búrca, EU Law: Text, Cases and Materials, Oxford University Press, Oxford, 2011, pp. 73-102; K. Lenaerts & P. van Nuffel, European Union Law, Sweet and Maxwell, London, 2011, pp. 124-130.

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5  Does the Emperor Really Have New Clothes? unavoidable and necessary. Therefore, conservative authors do not deny the necessity of transformation; what they frequently and vehemently debate are its nature and features. For example, Michael Oakeshott argues that a slow and gradual, that is to say, spontaneous transformation is much more favourable than a line of fast, direct and intentional acts aiming to comprehensively reform a certain segment of life.6 Thus, ‘conservative reform’ is a plausible term for characterizing those processes that gradually, softly and organically change a given situation shifting into another one. As a preliminary remark, it should also be mentioned that the reform of the entire system of European Union competences has been a constant claim of both the European political elite and the European civil society in the last fifteen years. Besides featuring in the general scholarly and political discussion, it was also reflected in official European Union documents. A declaration attached to the Nice Treaty7 had already mentioned the necessity of this reform which was one of the main issues that gave birth to the Laeken Declaration8 and the following constitution-making process leading to enactment of the Lisbon Treaty. To be precise, both declarations emphasized the necessity of a clear delimitation of the European Union and member state competences. The declaration on the future of the European Union attached to the Nice Treaty simply pointed out the problem on an official level, since it indicated it as one of the main questions to be discussed in this respect.9 The Laeken Declaration provided a more detailed analysis, broadening the scope of official awareness. Its main message was that the division of competences had to be clarified and simplified; furthermore, this regime was also to work in a more transparent way. In order to achieve these aims, it explicitly claimed a ‘clearer distinction’ among the different types of competences, including the exclusive ones, the shared ones, and the competences of member states.10 In sum, the reconsideration of the former regime of the distribution of powers between the supranational and member state levels of government was an essential component of the constitution-making process launched in 2001; however, its precise substance was still open to debate. Upon analysing the changes brought about by the Lisbon Treaty, one may conclude that they did not radically transform the existing competence regime although they integrated a new framework and various new elements into the corpus of European public law. The

6 See M. Oakeshott, ‘On Being Conservative’, in M. Oakeshott, Rationalism in Politics and Other Essays, ­Liberty Fund, Indianapolis, 1991, pp. 407-437. 7 23. Declaration on the future of the Union. 5. OJ C 80/85. 8 Laeken Declaration on the Future of the European Union. . 9 The declaration also mentioned the status of the Charter of Fundamental Rights, the simplification of the Treaties’ wording, and the role of national parliaments. So, it pointed out key questions of the future constitutional development. 10 Laeken Declaration pp. 3-4. .

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Balázs Fekete actual setting of the division of competences is based on both the TEU and TFEU. The TEU establishes the underlying principles for sharing and exercising competences in Article 3 and 4 with special regard to the demarcation of member states competences as well as the limits of Union competences. In addition, Title I TFEU (Arts. 2-6) sets forth detailed rules by defining the nature and scope of the various competences as well as listing their specific policy areas. Thus, as of recently, the distribution of competences is spread out in seven independent articles. That being said, the European Union received a newly designed legal framework for exercising competences incorporated into the treaty architecture. It should not be forgotten, that in the earlier phases of the development of integration the problems of the vertical division of powers were decided by the ECJ on a case-by-case basis.11 However, although the emergence of such a new ‘competence clause’,12 the beating heart of each federal system, is certainly a new element of European public law, emphasis must be laid on the fact that the drafters of the treaty simply codified pre-existing solutions in the great majority of the cases. Indeed, the substance of this ‘competence clause’ consisting of seven treaty provisions predominantly stem from pre-Lisbon public law developments. The majority of these were former treaty provisions and various earlier case law achievements; both generally approved by the communis opinio doctorum of legal scholars. Therefore, this transformation can only be termed a ‘conservative reform’ instead of a real revolution as the focal point thereof were the developments lying in the past. All in all, the Lisbon reform refined the legal framework of the division of competences – e.g. it created new articles precisely delimiting Union and member state competences, it also introduced new terms into the text of these articles – nonetheless it did not add any qualitatively new elements that would call into question the former constitutional setting. As a first illustration, the case of exclusive Union competences should be mentioned. Article 3 TFEU precisely sets forth those five areas – the customs union, competition rules for the internal market, monetary policy for those member states who participate in the final stage of monetary integration, conservation of marine biological resources and common commercial policy – where the EU has exclusive competence in the classical sense of the term. Moreover, the second paragraph of this article handles the question of the conclusion of international agreements. It sets forth that the Union possesses exclusive competence if the conclusion of an international agreement is required by a legislative act, or is necessary to exercise an ­internal competence, or insofar as it may affect common rules or alter their scope.

11 See in detail: J. Weiler, ‘The Transformation of Europe’, Yale Law Journal 100, 1990-1991, pp. 2413-2453. 12 By this term ‘competence clause’ I mean the sum of those constitutional provisions that regulates the distribution of power between the federal and member state level of government in a federation. They can appear in many forms, there is a considerable diversity at that field, but – as comparative public law points it out promptly – their function is the same: delimiting various levels of competences. See The Constitution of the Federal Republic of Austria Arts. 10-15; La constitution belge Arts. 74 and 77; Basic Law for the Federal Republic of Germany Arts. 70-75; and The Constitution of the United States Art I paras 8-10.

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5  Does the Emperor Really Have New Clothes? Let us take a closer look at these exclusive competences! The exclusivity of the Union’s competence in the area of customs unions and monetary policy of the Euro-zone would not have been seriously questioned in the pre-Lisbon setting. Both the spirit and the wording of the Treaty on the European Community made this obvious.13 Furthermore, the academic literature also accepted their exclusivity without reservation.14 In addition, ­emphasis must also be put on the fact that the ECJ had already stressed the exclusive nature of the European Community’s competences in the area of common commercial policy in relation to trade in goods15 and the conservation of marine biological resources with respect to fishery.16 The sole novelty among these competences is the appearance of the establishment of competition rules with regard to the functioning of the internal market as it has not been considered an exclusive competence so far. However, the ECJ has already accepted its exclusive nature in a judgment.17 Furthermore, the presence of the case law of the ECJ is also overwhelming regarding the provisions related to external competences, since they also rely on certain principles emerging from it.18 Thus, the list of exclusive competences as framed by the Lisbon Treaty is definitely not a surprising one in the light of earlier constitutional developments. If one also checks the list of shared competences incorporated in Article 4 TFEU one will immediately realize that it essentially mirrors the pre-Lisbon state of affairs.19 What is important in this respect is that the precise ‘configuration of power sharing’20 can only be determined if one reads them together with the detailed rules of the relevant chapters of the TFEU.21 In conclusion, it can be argued that the substantive scope of the treaties – although the relevant provisions were considerably re-tailored and refined by the drafters of the treaty on a textual level – have not changed substantially. 13 See e.g., as for customs union: Art. 26 TEC declaring that the Common Customs Tariffs shall be fixed by the Council; as for monetary policy: Art. 108 TEC emphasizes that ECB must carry out its task independently without taking instructions from any external entity including member states. 14 See K. Lenaerts & P. van Nuffel, Constitutional Law of the European Union, Thomson, Sweet and Maxwell, London 2006, pp. 97-98. 15 See Opinion of the Court of 11 November 15 in 1/75, Draft OECD Understanding on a Local Cost Standard drawn up under the auspices of the OECD [1975] ECR 1355. 16 See the case law starting with Judgment of the Court of 14 July 1976 in Joined Cases 3-4/76 and 6/76, ­Cornelis Kramer and others [1976] ECR 1279. 17 See Judgment of the Court of 14 September 2010 in Case C-550/07 P, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v. European Commission [2010] ECR I-08301. 18 See R. Schütze, ‘Lisbon and the Federal Order of Competences: A Prospective Analysis’, 33 European Law Review 2008, pp. 713-714. 19 See Lenaerts & van Nuffel, supra note 14, p. 97, arguing that “virtually all Community powers are nonexclusive” meaning that with the exception of the four exclusive competences (common commercial policy related to trade of goods, common fishery policy, customs union and monetary policy) at that time each power related to the main policy areas were shared between the Community and the member states. 20 P. Craig, ‘The Lisbon Treaty, Process, Architecture and Substance’, European Law Review, Vol. 33, No. 2, 2008, p. 147. 21 See Art. 2(6) TFEU stating that “the scope of and arrangements exercising the European Union’s competences shall be determined by the provisions of Treaties relating to each area.

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Balázs Fekete In fact, by introducing these two categories of competences the drafters of the treaty tried to create a coherent setting for the division of powers between the European Union and the member states by arranging the earlier fragmented developments and achievements into a logically coherent, essentially federal framework. However, and this is the most striking point, it failed to transform the existing state of affairs substantially. Undoubtedly, this was a reform; nonetheless, it was not more than a precise systematization of the preexisting components. That is why it can be labelled a ‘conservative reform’. However, contrary to all systematization efforts other parts of the new regime are still ­illogical and incoherent.22 One could say that this reform also had its internal limits mostly due to certain political controversies. One can find references in Article 4(3-4) TFEU – it should not be forgotten that Article 4 is principally dedicated to shared competences – to other types of competences. Research, technological development, space, development cooperation and humanitarian aid are the main fields where the European Union has ‘a certain’ competence. However, surprisingly, these competences can only imply activities (including the implementation of programmes and common policies) that do not prevent member states from exercising their competence on the same fields. One thing is clear from this wording: these do not fit the classical federal tripartition of competences by their very nature. They are not shared competences as they cannot overrule the same member states competences, therefore, their place in Article 4 is highly questionable.23 Parallel competence might be a proper choice to name them, but in reality, this seems controversial since it can hardly be imagined that they will never intersect the same competences of member states, as would be the ideal case. For instance, European research and innovation framework programmes necessarily interfere with the same national activities to a certain degree as they set forth research priorities and allocates research funds.24 Thus, the exercise of the Union’s ‘parallel’ competence in the field of research and development is always capable of partially influencing the same national policies; that is, in practice the national authorities necessarily loose some segments of their autonomy. Therefore, it may seem a pure illusion to talk about parallel competences in this respect, since the way the Union level exercises its ‘parallel’ competences necessarily affects the attitudes of national players thereby also influencing their competences. 22 This dimension has already been comprehensively analyzed by Schütze, supra note 18, pp. 714-721. 23 Ibid., p. 717. 24 E.g., The Commission’s Green paper on the European Research Area explicitly mentions that public authorities of the member states have to work on removing “legal, administrative and practical barriers” in order to “establish a single and open European labour market for researchers”. Although the impact of these efforts have been rather limited until these days due to the non-compulsory nature of coordination it certainly has influenced the national legislators and authorities as an important external factor when designing the framework of national research activities. Indeed, it seems to be impossible to design national research and development policies without taking into account the EU’s priorities in this field. See, The European Research Area: New Perspectives. Green paper. 04.04.2007, European Commission, Brussels, 2007, p. 11.

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5  Does the Emperor Really Have New Clothes? Furthermore, the following categories of competences are even more obscure and problematic than those mentioned earlier. Article 5 TFEU empowers the Union to exercise certain coordinating competences in the field of economic policies, employment policies and social policies. It is argued that the main reason for the emergence of these coordinating competences was a political compromise, since in the framework of the Convention the parties could not reach an agreement on the question whether these areas should be put under the umbrella of shared or complementary competences.25 Lastly, Article 6 TFEU lists seven so-called complementary competences26 by emphasizing that the acts of the Union in these matters cannot even result in the harmonization of the rules of the member states.27 Thus, the post-Lisbon competence regime is also composed of numerous atypical competences and that makes the whole picture even more complicated. In sum, the new regime of power distribution is also based on atypical competences besides the classical ones. They can be labelled as parallel, coordinating or supplementary competences. Common to all of them is that in case they are exercised by the Union this cannot lead to the expiry of the own competences of the member states, however, they definitely influences those. That is to say, they fluctuate somewhere between the shared and exclusive member states competences, therefore their substantial scope and real normative value still remains a question. One may argue that coordinating competences would be normatively more powerful than complementary ones;28 nevertheless the real added value of this division is unclear yet. All in all, their introduction as sui generis categories is quite confusing in from a constitutional point of view, therefore, their reconsideration and simplification should be an important task for the next revision of the Treaties. Moreover, their presence also indicates that the internal limits of this reform are closely related to the controversial nature of European political reality. Thus, some further systematization and clarification would still be favourable in order to make the recently installed regime more transparent and comprehensible. Until such time, it cannot be argued that the Laeken goals were fully and perfectly achieved.

5.3 A Federal Approach and Vocabulary Introduced Based on the above, the Lisbon reform did not substantially modify the actual status quo of the division of competences between the European Union and the member states. However, this lack of substantial transformation does by no means lead to the conclusion that it 25 Schütze, supra note 18, p. 717. 26 Protection and improvement of human health; industry; culture; tourism; education, vocational training, youth and sport; civil protection; administrative cooperation. 27 Art. 2(5) TFEU. 28 Schütze, supra note 18, pp. 717-718.

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Balázs Fekete did not bring any new elements into the constitutional architecture. Both the spirit and the wording of the articles dealing with competence distribution changed comprehensively, unambiguously indicating a federal-turn in the attitude of the founding treaties. If one examines the prior-Lisbon framework of distribution of competences, one striking feature will appear at the outset. The treaties – both the TEU and Treaty establishing the European Community (hereinafter ‘TEC’) – were seemingly reluctant in applying classic terms of federalism while setting forth precise rules. Of course, this was not surprising in the era when the Community was born, since the first, embryonic decades were pre-eminently dedicated to economic integration, namely the establishment of a common market. Purely political questions were of a secondary importance on the agenda of the evolving Community. In addition, the failure of both the European Political Community and the European Defence Community in the 1950s sharply pointed out how limited the range was for any ambitions of supranational and political integration at that point in time.29 However, the integration process had gradually acquired a political character,30 while the Maastricht reforms, with special regard to the establishment of the three-pillars structure, definitely paved the way for a political union. And, questions on the federal nature of this continuously evolving political integration could legitimately have been posed in this context.31 However, the drafters of the treaty did not insist on the reconsideration of competences in a federal manner neither in Amsterdam, nor in Nice. In a perhaps slightly surprising way, the last version of the TEC kept the legal framework that was essentially designed at the very beginning of the integration.32 Thus, although the political, economic and even the judicial context of the integration had been transformed to a considerable degree, the legal provisions dedicated to the exercise of the competences remained essentially within the framework of a non-federal paradigm. When defining the exercise of the powers of the Community, the TEC predominantly ­relied on terms such as ‘task’,33 ‘purposes’,34 ‘activities’,35 ‘limits’36 or ‘powers conferred upon’.37 Although both the substantive scope of the treaties and the legislative activities of the Community could be coherently explained employing these concepts,38 they were 29 See Weiler, supra note 11, p. 2410; Schütze, supra note 4, p. 44. 30 See, G. Harpaz, ‘European Integration in the Aftermath of the Ratification of Lisbon: Quo vadis?’, 11 ­European Public Law 1, 2011, pp. 73-78. 31 E.g., Weiler, supra note 11; Lenaerts, supra note 2. 32 In the Treaty Establishing the European Economic Community Arts. 2 and 3 were dedicated to lay down the principles of the activities of the Economic Community. Art. 2 indicated the main tasks of the EEC, while Art. 3 provided a list of the principal activities. 33 Art. 2 TEC. 34 Art. 3 TEC. 35 Ibid. 36 Art. 5 TEC. 37 Ibid. 38 See Lenaerts & van Nuffel, supra note 14, pp. 80-99.

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5  Does the Emperor Really Have New Clothes? unable to deliver such a clear and structured picture as a federalist setting could have offered.39 One may conclude that the legal framework of competence distribution dealt with its subject matter in a rather pragmatist and operationalist attitude within the prior-Lisbon constellation. That being said, the system relied on vague terms with no explicit constitutional meaning. Their presence resulted in a lack of solid constitutional background; indeed, the precise content and scope of competences had to be established by the ECJ on a step-by-step basis.40 The sole exception was the expression ‘exclusive competence’ that was added to the TEC by the Maastricht Treaty in 1992.41 Its inclusion might have been regarded as a sign of a silent transformation, since it was the first moment when a clearly federal concept ­appeared in the founding treaties. However, albeit very tempting, such a conclusion should be considered with caution. First of all, it should be borne in mind that the term ‘exclusive competence’ was solely mentioned in the context of subsidiarity.42 Hence, it was not introduced as a sui generis constitutional concept in order to indicate the exclusive sphere of the Community’s competences. It only had an explanatory and illustrative value by pointing out that the requirement of subsidiarity could not be applied where the Community had an exclusive competence. Therefore, it could not be considered more than the counterpoint of shared competences subjected to the requirements of both subsidiarity and proportionality. The only conclusion that could have been deduced from the appearance of this term in Article 3b is that the Community had certain exclusive competences, but their precise area and scope remained unsettled on the level of the treaty. As a result, the prior-Lisbon constitutional regime was seemingly unenthusiastic in applying classic federal concepts to describe the existing system of vertical division of competences. This is most likely due to the fact that the idea of euro-federalism had already been seriously challenged in the early history of the European integration – just think of De Gaulle’s sceptical, deeply intergovernmental attitude.43 Indeed, by the federally-neutral phrasing of the provisions concerned the member states as masters of the treaties did not want to touch upon such a delicate question, namely the federal functioning of the Community, that could have threatened the status quo of integration, potentially jeopardizing

39 Professor Weiler argues that on the basis of Art. 2 and 3 EEC competences can be “derived in rather opentextured language”. That is, they cannot be regarded as solid and precise constitutional basis as it would be a case with clear federal terms. Weiler, supra note 11, p. 2433. 40 See Ibid. pp. 2431-2453. 41 Originally, Art. 3b TEC. 42 Art. 3b TEC declared that “in areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity [. . .]”. 43 On de Gaulle’s attitude towards external relations, with special regard to the European integration see J.  ­Vernant, ‘Le général de Gaulle et la politique extérieure’, 35 Politique étranger, 6, 1970, pp. 619-629.; S. Hoffmann, ‘De Gaulle, Europe, and the Atlantic Alliance’, International Organization, Vol. 18, No. 1, 1964, pp. 1-6.

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Balázs Fekete all achievements already realized. It could easily be imagined that a complete or partial introduction of a classical federal phrasing into the text of the treaties would immediately have fostered strong political counter-reactions centred around the supremacy of ­national sovereignty. However, this completely changed since the ratification of the Lisbon Treaty. Indeed, it introduced a new approach in the design of the constitutional framework dedicated to the organization of the exercise of competences.44 In fact, by the introduction of a socalled ‘competence clause’ a qualitatively new attitude has just begun to fertilize European public law on an official level. The new ‘competence clause’ – even if it is an i­ ncoherent and fragmented provision since some components are incorporated in the TEU, while others are regulated in the TFEU – can structurally be compared with those of the classic federal constitutions. Thus, it is of a seemingly federal nature, therefore, it can be regarded as a real improvement in comparison to the earlier attitude of the founding treaties generally neglecting federalism in this respect. That is to say, the conceptual framework in which the drafters of the treaty regard and manage the question of distribution of competences changed to a great extent. There are some examples for illustrating the above statement. Firstly, both Articles 4(1) and 5(2) TEU stress that the competences not “conferred upon the Union in the Treaties remain with the Member States”.45 By attributing such a high level of importance to the definition of the precise sphere of the member state competences – all competences that were not transferred to the Union by an explicit treaty provision in abstracto – the d ­ rafters of the treaty subscribed to the very core of federalist thinking. More concretely, they ­accepted one of its basic tenets that in a federalist political system two precisely ­delimited spheres of governments work together in the same constitutional framework.46 Obviously, these levels of government may cooperate in various ways, as the examples of dual and cooperative types of federalist structures may illustrate,47 but the division of these two spheres of government remains fundamental. That is to say, these articles reflect strong federal commitments. Thus, in the eyes of the constitutionalizing power, the EU comprises and integrates two different politico-legal entities, the supranational, Union level and the member states. 44 It should be noted that the majority of these provisions have already been set forth by the Draft Constitution, so the real paradigm-shift was made the drafters of the Convention. See Treaty Establishing a Constitution for Europe, OJ 2004 C 310 Title III. Union competences Art. I-11-I-18. 45 It is also striking that to what extent the underlying philosophy of this article reflects the approach of the Tenth Amendment of the US Constitution. For a detailed discussion of the legal interpretation of the Tenth Amendment see D.C. Casto, Jr, ‘The Doctrinal Development of the Tenth Amendment’, 51 West Virginia Law Quarterly, 1948-1949, pp. 227-249. 46 See e.g., Alexander Hamilton, ‘The Necessity of a Government as Energetic as the One Proposed for the Preservation of the Union’, The Federalist No. 23. 47 Schütze, supra note 4, pp. 4-10.

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5  Does the Emperor Really Have New Clothes? Furthermore, as a logical consequence of the earlier, apart from emphasizing the importance of the equality of member states before the treaties Article 4(2) TEU lists the key areas that will remain in the hands of the member states. In doing so, this provision ­delimits the core of the political and constitutional existence of the member states, that is, competences that cannot be overruled by acts of the Union. These can be grouped around the following key points: (1) fundamental political and constitutional structures including the system of local and regional self-government; (2) defence of the territorial integrity; (3) maintenance of law and order on its territory; and (4) national security. These broader terms should be translated to the conventional language of constitutional law, but if we do so, it is possible to conclude that (1) the competence to set up the internal constitutional and political structure autonomously; (2) military competences and (3) police competences will certainly preserve their place in the constitutional armoury of the member states.48 It is worthwhile mentioning at this point, that such a delimitation of exclusive member state competences echoes to a great extent the US federal approach granting general ‘police power’ to states.49 In sum, this is another important point to substantiate how close the recent constitutional philosophy of the Lisbon Reform is to the general heritage of federalism. In addition, even if it is nothing more than a commonplace in the world of constitutional law, the division of exclusive, shared and member states competences also reflects a definitively federal attitude. The definition of these groups of competences is a logical consequence of a constitutional philosophy that strictly delimits two distinct spheres of government, that of the federal or supranational and that of the member state. Precise patterns of such a threefold division of competences are incorporated into the federal constitution of both Germany or Austria.50 So, the drafters of the treaty followed the European line of federalist thinking on this point. Moreover, the expressis verbis listing of exclusive and shared competences also implies another essential principle of federalism. This is the principle of enumerated powers setting forth that the federal level has no general scope of jurisdiction since its acts must always be linked to one of the competences enumerated in the text of the constitution or founding

48 It is worthwhile pointing out that Working Group V in the Convention defined a broader framework by discussing the subject-matter of statehood. It argued that national identity in a legal sense consists of two main parts with certain sub-components. The first one is centered around “the fundamental structures and essential functions”, while the second one is related to “basic public policy choices and social values”. However, the final version totally neglected the public policy choices and social values part. Final Report of Working Group V, Brussels, 4 November 2002, CONV 375/1/02 WG V 14. 11. 49 For a general discussion in a broad constitutional context see J.E. Novak & R.E. Rotunda, Constitutional law (8th edn), Thomson-West, St. Paul (Minn.) 2010, p. 139. For an in-depth historical and analytical analysis see S. Legarre, ‘The Historical Background of Police Power’, 9 University of Pennsylvania Journal of Constitutional Law 3, 2007, pp. 745-796. spec. pp. 781-793. 50 Basic Law for the Federal Republic of Germany Arts. 70-75. The Constitution of the Federal Republic of Austria Arts. 10-15.

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Balázs Fekete treaty.51 US constitutional history teaches us that this principle may even have such a broad reading that made it possible to infer the doctrine of implied powers52 with respect to enumerated federal powers. Nonetheless, its very core, i.e. that the federal government is able to act only if an explicit or implicit authorization emanates from the constitution, is still one of the essential cornerstones of federal legal architecture. Considering the above, it is certainly not an overstatement to submit that an apparent federal-turn has taken place in the constitutional philosophy of the founding treaties. As for competence sharing between the Union and the members states, the Lisbon reforms introduced both a clear federal attitude and a more or less coherent federal vocabulary. It is even more apparent if one compares the actual constitutional framework to that prior to Lisbon. Articles 4(1) and 5(2) TFEU reveal that the drafters of the treaty regarded the Union as a political entity with two distinct levels of government. In addition, the threefold division of exclusive, shared and member states competences also goes back to the roots of federal constitutional philosophy. This kind of a division of competences implies the principle of enumerated competences further reinforcing the federal references. However, contrary to that presented earlier, this picture is not as clear as it could be since the inclusion of parallel, coordinating and supplementary competences also reflect the ­political reality of the recent stage of European integration. Therefore, the ‘competence clause’ of the treaties does not have a completely federal nature, as the political compromises surrounding the entire constitution-making process had a considerable impact on it.

5.4 The Shortcomings of the Recent Solution – Substantive Comments Two insights have been revealed thus far. Firstly, the Lisbon reforms codified the existing status quo on the exercise of competences in the European Union. Secondly, the formation and the phrasing of the legal framework is of a clear federal nature, both its underlying constitutional philosophy and precise wording incorporate essential tenets of a federal structure. This last section, however, attempts to formulate some substantial comments by highlighting certain controversial points. The starting point of this discussion is the simple fact that the recent setting of the vertical division of powers in the European Union has seemingly unambiguous federal aspirations. Each component – (1) the inclusion of the competence clause (2) the delimitation 51 “This government is acknowledged by all, to be one of enumerated powers”, argued Chief Justice Marshall in his landmark decision. See McCulloch v. Maryland 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819) at 405. For a general introduction: Novak & Rotunda 2010, pp. 139-150; J.A. Barron & C.T.A. Dienes Constitutional Law in a Nutshell, Thomson-West, St. Paul (Minn.), 2009, pp. 74-79. 52 Chief Justice Marshall argued that “but it may with great reason be contended, that a government, intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so v­ itally depends, must also be intrusted with ample means for their execution”. McCulloch v. Maryland 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819) at 408. For a general analysis see Novak & Rotunda 2010, pp. 141-145.

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5  Does the Emperor Really Have New Clothes? of the spheres of Union and member states’ government (3) the general ‘police power’ explicitly granted to the member states (4) the threefold division of competences and (5) the presence of the principle of enumerated competences – underlines the impression that the exercise of competences operates on a clear federal basis in the Union. Taking one more step forward, this may also lead to a fundamental conclusion. In fact, the European Union, as far as the relationship between the supranational and member state levels goes, is a federal entity. But is this really true? May we submit that the European Union is a federal constitutional structure? Of course, this question, due to the linguistic and conceptual uncertainties, that is, the terms federation, federal or federative have a considerable penumbra of uncertainty,53 cannot be answered from a single point of view. Depending on either the approach or the given field of study, authors may arrive at various conclusions.54 In order to contribute to the ongoing scholarly discussion, this article discusses this problem from a comparative perspective. From a substantial point of view, the recent setting of division of powers between the European Union and the member states cannot really be compared to traditional federal solutions. That being said, the new ‘competence clause’ relying to a great extent on a federal constitutional philosophy, logic and vocabulary does not include that many essential powers that would be vital for the proper functioning of a real federation. Comparative public law points out that real federations have exclusive competence in the field of foreign policy,55 military and defence policy,56 or imposing federal taxes thereby founding the federal fiscal policy.57 Naturally, member states may retain some fragments of the earlier exclusive powers, but it should be noted that these cannot compete at all with concomitant federal competences.58 Indeed, the European Union still lacks these powers, only a very limited and sometimes controversial coordination, if any, has started to emerge in these fields.59 Member states are obviously unwilling to give up, 53 See H.L.A. Hart, The Concept of Law, Clarendon Press, Oxford, 1978, pp. 124-125. 54 See e.g., Lenaerts, supra note 2, p. 747. In this article professor Lenaerts argues that federalism can have various interpretations and these also influence us in the understanding of the EU’s structure. Or, Professor Schütze pointed out the constitutional structure of the European Union has a clear federal nature, and it can be compared to cooperative federalism. Schütze, supra note 4, p. 352. 55 Basic Law for the Federal Republic of Germany Art. 73(1); The Constitution of the Federal Republic of ­Austria Art. 10(1) 2; The Constitution of the United States Art. I, para. 10. 56 Basic Law for the Federal Republic of Germany Art. 73(1); The Constitution of the Federal Republic of ­Austria Art. 10(1) 15; The Constitution of the United States Art. I, para. 8. 57 The Constitution of the Federal Republic of Austria Art. 10(1) 4; The Constitution of the United States Art. I para. 8. 58 E.g., Art. 32(3) of the German Basic Law provide certain international treaty-making competences for the member states in relation with their sui generis legislative power. However, the same article also requires the consent of the Federal Government to these treaties, thus the federal level has a veto power in this case. Moreover the Federal Constitutional Court emphasized in a decision that the member states cannot have an autonomous foreign policy on the basis of this article. See J. Throne, Federal Constitution and International Relations, University of Queensland Press, St. Lucia, 2003, p. 53. 59 See e.g., Title V Chapter 1 and Chapter 2 Section 1 TEU (Common foreign and security policy), Title V Chapter 2 Section 2 TEU (Defining a broad framework for military and defence cooperation), Title VIII Chapter 1 TFEU (Economic policy).

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Balázs Fekete or to partially transfer these areas of action to the Union, since they are still regarded as the core elements of national sovereignty. Therefore, the supranational government in the EU has considerably less room to act in substantive terms than in a truly federal system. Furthermore, there are other points in the recent design of the distribution of competences that impede the construction of an efficient federal constitutional framework. Almost two hundred years ago, when establishing a truly federalist interpretation of the US Constitution, Chief Justice Marshall argued that the powers of the federal government emanated directly from the people.60 That is, in Marshall’s opinion the source of the powers of the federal government was the people, and not the North-American states. Consequently, the federal government could in no way be limited by the states in general, although they certainly had such aspirations as reflected by 19th century US constitutional history. As a result of this construction, only the Constitution may impose limitations on the acts of the federal government, the component states were deprived of this opportunity.61 Marshall’s reasoning, linking the powers of the federal government to the American people, simply closed down those lines of constitutional argumentation that may have ­attempted to raise claims based on the sovereignty of the states as a substantial barrier of governmental power. In addition to its constitutional relevance, Marshall’s approach had a clear political dimension since it made it possible to refute ‘states’ rights’ political claims marked by strong republican and anti-federalist features.62 However, it is obvious that such a constitutional approach is unimaginable in the recently established setting of the division of powers in the European Union. Article 5(1) TEU declares that the principle of conferral has a crucial role to play in limiting the exercise of Union competences, while Article 5(2) TEU states that “the Union shall act only within the limits of the competences conferred upon it by the Member States”. These provisions have detrimental consequence for any federalist argument. The fact that the Union competences are limited by the principle of conferral – implying that the member states intentionally and explicitly transferred their powers to the supranational level of government – points out that the member states are the primary source of Union powers – and not the people of Europe. The Preamble of the TEU also underlines the primary importance of

60 “The government of the Union, then (whatever may be the influence of this fact on the case), is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.” McCulloch v. Maryland 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819) at 404-405. 61 Chief Justice Marshall set forth three criteria for the legality of federal acts: (1) the end has to be legitimate (2) the act has to be within the scope of the constitution (3) the means has to be in harmony with the letter and the spirit of the constitution. McCulloch v. Maryland 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819) at 421. So, the state’s potential objections cannot be relevant at all in assessing the legality of a federal act. 62 See Novak & Rotunda 2010, pp. 141-143.

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5  Does the Emperor Really Have New Clothes? the member states in this respect. It only refers to the peoples of Europe four times63 and it seemingly considers it an object of Union’s policies, not an autonomous driving force behind the integration.64 Therefore, the federalist approach directly linking the supranational level to the people as Marshall did in his seminal judgment is prima facie impossible within the constitutional context of the European Union. In a similar case, if at all, a reference to Article 5(1) and 5(2) TEU would immediately invalidate any US-styled federalist speculation. Therefore, federal aspirations attempting both to neutralize the will of member states in legitimizing the exercise of powers of the European Union and strengthen the power of the Union level would contravene the prevailing constitutional setting. Consequently, member states can still impose strict limits on the acts of the European Union since they are the fundamental source of its powers. This also means that they can easily impede a federal expansion of supranational competences.65 In essence, the recent state of affairs can only be transformed into a more federative one in case the member states agree to such transformation, thus, this seems to be a pure political question. Nowadays, in the era of the economic crisis, it is hard to imagine that member states would give up more competence areas in the coming years, since the recent political developments in the European Union indicate that sovereignty is still a major concern of member states in general. Lastly, it is worthwhile mentioning that even Article 352 TFEU cannot be applied for the extension of the powers of the federal level as it happened in the history of US constitutionalism.66 It is true that this article and its antecedents have played a role that is comparable to that of the ‘necessary and proper’ clause of the US Constitution.67 However, there are some differences and these call into question whether this article may be invoked as efficiently as its US counterpart was applied in order to provide implied powers to the US federal government to accomplish its ends. Chief Justice Marshall, when establishing the

63 Preamble alinea 6 TEU (deepening the solidarity between Europe’s peoples), Preamble alinea 9 TEU (promoting economic and social progress for the people); Preamble alinea 12 TEU (ensuring the security and safety of people in facilitating the free movement of persons); Preamble alinea 13 TEU (creating an ever closer union among the peoples of Europe). 64 On the contrary, US Constitution regards the People of United States as the final subject of the whole constitution (“We the people of the United States [. . .] do ordain and establish this Constitution for the United States of America”). To put it bluntly, the TEU is for the people, the US Constitution is made by the people. 65 See, Opinion of the Court of 28 November 1996 in 2/94 Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms [1996] E.C.R. I-1759. This opinion illustrates that the ECJ also had a very restrictive attitude in expanding competences to politically sensitive areas. That is, the principle that the member states are the “Masters of Treaties” – not the supranational institutional level – is protected by the ECJ generally. 66 See Novak & Rotunda 2010, pp. 141-145. 67 The Constitution of the United States Art. I para. 8. “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

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Balázs Fekete implied powers doctrine in respect to the enumerated powers, relied on both structural and textual interpretation. Firstly, he submitted that from the fact that the ‘necessary and proper’ clause is situated within the enumerated powers it could be inferred that it was not a simple addition, but one of the enumerated powers itself.68 Secondly, the phrasing of this clause, that is the lack of the adjective ‘absolutely’, also indicated that the federal government is able to choose any appropriate means to make the exercise of its powers efficient.69 Chief Justice Marshall’s linguistic argument is also valid in the context of Article 352 TFEU. One can find no reference to ‘absolute’ necessity in the text of this provision. This article refers to the ‘policies defined in the Treaties’ instead of ‘powers’ as the ‘necessary and proper’ clause does in the US Constitution, and no serious doubts can be raised in relation to the applicability of the article in establishing implied competences. However, as far as structural interpretation goes, the case is obviously different. Article 352 TFEU is not part of the section devoted to Union competences, instead, it is located in Part Seven (General and Final Provisions).70 If one follows Marshall’s argument the only logical conclusion is that Article 352 TFEU is not part of the Union powers but an additional provision to be applied in special cases. Therefore, it is impossible to argue that this article would be “an express recognition of the need to provide additional law-making powers”71 to execute the originally enumerated powers. As a result, a US-type extension of competences through the recognition of the implied dimensions of enumerated powers must face serious challenges in the prevailing legal framework. Therefore, it is questionable if Article 352 TFEU can really be regarded as a real ‘necessary and proper’ clause of the ­European Union constitutional order.72 In sum, the recent constellation of competence rules – albeit exhibiting a manifest federal shape – is far removed from a true federative regime yet. Some essential competences for an efficient and real federal way of functioning are still in the more or less exclusive power of the member states. Moreover, the primary role of the principle of conferral as well as the position of Article 352 TFEU render any judicial activism leading to a federal transformation in respect of competences an illusion. Thus, the exercise of powers in the European Union is of a sui generis nature, situated somewhere in halfway between intergovernmental cooperation and federalism.

68 McCulloch v. Maryland 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819) at 353. 69 Ibid. at pp. 414-415. 70 It should be mentioned that this clause had a different place in the structure of the Draft Constitution. The constitution-maker placed it into the Title III dedicated to the Union competences. See Treaty Establishing a Constitution for Europe, OJ 2004 C 310 Title III. Union competences Art. I-18 (Flexibility Clause). 71 Novak & Rotunda 2010, p. 145. 72 See Schütze, supra note 4, p. 135.

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5  Does the Emperor Really Have New Clothes? 5.5 Conclusions – The Emperor Is Certainly not Naked but Weak A telling way to formulate some conclusions can be the reconsideration of the famous tale by Andersen. This ‘metaphorical extension’ may explain better the recent situation than the simple use of the normal language of legal scholarship. Applying the metaphor of the ‘Emperor’ to the European Union, one may conclude that the ‘Emperor’ in our case is certainly not naked, as was the case in the famous tale, since he got new, well-tailored clothes following Lisbon. At the same time he seems manifestly weak especially when compared with the other ‘Emperors’ wearing similarly styled clothes. That is, although the Lisbon reforms reconsidered the entire framework of the distribution of competences in a seemingly federal way, they did not lead to the creation of a properly and efficiently functioning allocation of powers. The shortcomings of the post-Lisbon regime of competence sharing have already become manifest in the last few years. One of the main reasons for the recent stalemate over the European debt crisis, with special regard to the fragility of Euro, might be that the European Union is unable to act and react as fast and efficient as would have been necessary in a European level crisis. The lack of vital exclusive and shared competences, mostly in the area of fiscal and foreign policies, hinder the European Union in delivering clear-cut and unambiguous responses to constantly emerging challenges. Contrary to all federal efforts, the competences necessary for an efficient crisis management pre-eminently remained in the hands of national governments. These in turn have understandably focused predominantly on their own problems, trying to preserve these competences even if most of the problems and challenges have a clear transnational and regional nature.73 In sum, the new federal-like, but essentially hybrid design of the division of powers ­between the European Union and member states must prove its worthiness in a historically unprecedented situation, in the waves of both the global economic crisis and the European debt crisis. Perhaps, the Emperor will be able to answer these questions in his new outfit, however, this still remains an open question highly dependent on the whole European political scene.

73 See H. von Rompuy, ‘The Discovery of Co-Responsiblity: Europe in the Debt Crisis’, Speech at the Humboldt University, 6 Ferbruary 2012, p. 3.

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6

From the Principle of Linguistic Diversity to Enforceable Language Rights in the European Union

Petra Lea Láncos* 6.1 Introduction: Diversity and the Proliferation of Guarantees Made up of 27 member states, it is a commonplace to state that the European Union is culturally and linguistically diverse. Historically, this diversity has been accommodated by an extraordinarily permissive language regime in the framework of European integration – international organizations normally restrict the number of their official languages to a minimum in order to guarantee efficient functioning.1 This permissive approach to languages notwithstanding, with the entering into force of the Lisbon Treaty, we are witnessing a proliferation of the guarantees of linguistic diversity: ranging from the negative obligation to safeguard linguistic diversity2 and the principle of non-discrimination3 to the positive obligation of the Union to promote its linguistic diversity.4 It seems as though the

*

1

2 3 4

Adjunct professor at the Pázmány Péter Catholic University of Budapest, Faculty of Law at the Department for European Law. She is also member of the secretariat of the Hungarian Deputy Commissioner for the Protection of the Interests of Future Generations (“Green Ombudsman”). I am most grateful to the participants of the Dienstagsrunde of the Max Planck Institute for Comparative Public Law and International Law for their insights and feedback and Botond Horváth for editing. A. Károly, ‘Language Policy in the European Union’, 8 Eger Journal of English Studies, 2008, p. 130. J. Witt, Wohin steuern die Sprachen Europas?, Stauffenburg Verlag, 2001, pp. 69-70. Keeping the number of official languages in international organizations and other entities for transnational cooperation actually serves the gate-keeping efforts of national governments that seek to determine which pieces of information and how it should be transferred to the national public. Archiburgi points out that pressures for democratization, transparency and accountability of intergovernmental entities have intensified forcing such typically closed organizations to rethink their language policies. D. Archiburgi, ‘The Language of Democracy: Vernacular or Esperanto? A Comparison between the Multiculturalist and Cosmopolitan Perspectives’, 53 Political Studies, 2005, p. 541. Art. 22 Charter of Fundamental Rights (‘ChFR’). Art. 21 ChFR. Art. 3 para. 3 TEU and Art. 165 paras 1-2 TFEU. Whether or not the linguistic diversity of the Union and the member states encompass immigrant languages remains a question. Grin makes a good case for including immigrant languages into the policies related to linguistic diversity and language rights. François Grin, ‘Combining immigrant and autochtonous language rights: a territorial approach to multilingualism’, in T. Skutnabb-Kangas & R. Phillipson (Eds.), Linguistic Human Rights, De Gruyter Mouton, 1995, pp. 31-34.

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Petra Lea Láncos expansion of the guarantees5 of linguistic diversity brought about by the Lisbon amendments is a reaction to certain deep-lying fears, threats or discontent,6 which surfaced as a call to protect and promote Europe’s languages against the European Union itself. The EU’s linguistic diversity thus emerges as a value in dire need of protection. But what are the reasons and justifications for such a claim? Is language to be regarded and protected as a particular area of social reality or a value of horizontal nature encompassing the complete socio-political reality? Does linguistic diversity represent an intrinsic value? Is it possibly instrumental to the protection of other values or rights? Although lawyers are normally concerned with the interpretation and application of law it may be of particular interest to take a step back and examine the most likely reasons behind such stipulations, highlighting the possible political and legal interests and choices that have eventually been codified. The underlying theoretical framework thus revealed may finally serve as a starting point for conceptualizing enforceable language rights within the European Union itself. The present article is divided into six parts. Following the introduction I attempt to define the term linguistic diversity, which shall be the starting point of my investigation. Next, I identify the concrete fears and frustration of different language groups and member states associated with European integration. I then turn to the origins and development of the claim for the protection of linguistic diversity. After reviewing the general theoretical foundations of the principle of diversity and its contribution to the debate on linguistic diversity, I propose an instrumental perspective of language as a possible approach of the EU towards guaranteeing language rights.

6.2 Definition of Linguistic Diversity To adequately assess the concepts underlying linguistic diversity, it is appropriate to also define the term linguistic diversity itself. In a broad sense, linguistic diversity may be defined as “the range of variations exhibited by human languages”.7 Linguistic diversity is

5 It is too early to decide how effective these guarantees shall be and whether they merely represent another attempt at “window dressing”, see A. von Bogdandy, ‘The European Union as Situation, Executive, and Promoter of the International Law of Cultural Diversity’, EJIL, Vol. 19, No. 2, 2008, p. 242. As Kraus puts it: “Although Europe’s constitutional discourse celebrates diversity in general and abstract terms, the diversityrelated e­ lements in the process of European polity-building remain blurrEd.” P. A. Kraus, A Union of Diversity, Cambridge University Press, 2008, p. 10. 6 Von Bogdandy 2008, pp. 247-249: “It is important to note, that the influence of European integration on culture is not restricted to the cultural policy of the Community. Even in areas where Community law apparently does not intervene, the processes and consequences of economic integration are at play.” M. Király, Egység és Sokféleség, Új Ember, Budapest, 2007, p. 265. 7 D. Gorter et al, ‘Cultural Diversity as an Asset for Human Welfare and Development’, position paper, p. 2 . (2009) (last accessed 18 December 2011).

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6  Enforceable Language Rights in the European Union therefore an expression of the variety of languages; however, it is also a relative term in the sense that any assessment of linguistic variety has to take place with reference to a particular territory or confined community. Taking the territorial aspect as a starting point, Skutnabb-Kangas asserts that linguistic diversity can be defined from two perspectives. The first perspective relies on ascertaining the number of languages in a given territory or community (for example: Europe, member state, region, etc.). Thus, any reduction that takes place in the number of languages on the territory/community under examination results in a loss of its linguistic diversity (richness). Another approach would be to consider the number of speakers of the different languages spoken in a given territory/community and their relative proportion to each other (evennes). This approach stipulates that linguistic diversity should be measured on the basis of the percentages of the population speaking the different languages present in the area/group under examination. From this perspective, linguistic diversity is high in regions, member states, etc. where the largest language group represents the smallest proportion of the population.8 Linguistic diversity is therefore measurable and as such, may increase or decrease due to different factors of influence. One such comprehensive factor of influence is language policy. The toolkit of language policy9 is diverse; language policies – be it on the state or the European level – may serve different aims, from rationalization and the restriction of language use to protecting and promoting linguistic diversity and granting language rights to the speakers of ‘endangered’ languages.10 As linguists never cease to remind us, the linguistic diversity of Europe is relative, as it ‘is the linguistically poorest continent’, comprising

8 T. Skutnabb-Kangas, ‘Why Should Linguistic Diversity be Maintained and Supported in Europe?’, Reference Study – Council of Europe 2002, (last accessed 18 December 2011), p. 9. For a better understanding, the two approaches are illustrated by Philippe Van Parijs: “Take a population A consisting of three communities, each of them speaking only one language, and another population B consisting of five communities, each of them also speaking only one language. The richness of B is then said to be greater than that of A, as the number of distinct types – whether species, races or, in this case, native languages –, is larger in B than in A. It may therefore be tempting to infer that population B is linguistically more diverse than population A. But this would be premature. Why?   Suppose that the three communities that make up population A are of about equal sizes, whereas in population B one of the five languages is the native language of 99% of the population? In the light of this additional information, we shall have no difficulty agreeing that population A is, after all, linguistically more diverse than the nearly homogeneous population B. Diversity, we conclude, cannot be only a matter of richness, i.e. of number of types, but also of evenness, i.e. of how equally the population is spread between those types, or of how little the members of the population are concentrated in one or few types. Just as richness will not do without evenness, evenness will not do without richness.” ‘Linguistic Diversity – What is it? And does it matter?’, EURODIV Paper (December 2006), p. 26, , p. 1 (last accessed 18 December 2011). 9 For a comprehensive assessment of the term language policy, see Witt 2001, pp. 23-29. According to Witt, language policy may cover both national and foreign languages and regulate areas related to cultural, economic and even foreign policy. 10 P.L. Láncos, ‘Részvételi jogok és nyelvi sokszínűség az Európai Unióban’, Miskolci Jogi Szemle, Vol. 19, No. 2, 2009, p. 112.

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Petra Lea Láncos only about 3% of the world’s languages.11 With the commitment of the ­European Union towards preserving its cultural diversity, in particular in the field of languages, European language policy should be aimed at balancing out external and internal factors of influence that may result in a loss of linguistic diversity in the Union.

6.3 Fears, Threats and Discontent: Protecting Linguistic Diversity against the Union Before embarking upon the discussion of the various manifestations of the concept of diversity, it is appropriate to examine the perceived and real threats posed by European integration to linguistic diversity. It is important to bear in mind that although the present article portrays the European Union as a single actor in the context of integration and linguistic assertion, the individual institutions and bodies of the EU assume different – at times even opposing – roles in this process. For example, whereas the European Parliament takes on the role of self-appointed representative of the cultural diversity of Europe12 and regularly adopts resolutions for furthering linguistic diversity,13 the Commission is adamantly opposed to all attempts to expand the range of internal working languages.14 And while the European Ombudsman suggests that good administrative practice entails due consideration of the linguistic endowments of citizens,15 the European Court of Justice denies that European law “confers a right on every citizen to have a version of anything that might affect his interests drawn up in his language in all circumstances”.16 In must also be pointed out that in accordance with the definition given above, the linguistic diversity of the European Union and in fact that of the member states comprises not only the official languages of the EU but also regional and minority languages and, arguably, the non-indigenous languages of immigrant citizens. These three layers of linguistic variety are all affected by European integration, albeit to a very different degree and manner.

11 Skutnabb-Kangas 2002, p. 7. At the same time, thanks to colonization European languages had a lasting impact on indigenous languages of other continents and are still the official language in numerous nonEuropean states. 12 “Whereas Parliament itself, as the Community institution which has been democratically elected and therefore represents the cultural diversity of Europe.” Resolution on racism, xenophobia and anti-semitism and the results of the European Year against Racism (OJ C 55/17, 24.2.97). 13 EP Resolution of 11 February 1983, OJ C 68, on Measures in Favour of Linguistic and Cultural Minorities, EP Resolution of 30 October 1987, OJ C 318, on the Languages and Cultures of Regional and Ethnic Minorities in the European Community, EP Resolution of 29 February 1994, OJ C 61, on Linguistic and Cultural Minorities in the European Community. 14 Case T-185/05, Italy v. Commission [2005] ECR I-10217. 15 3191/2006/(SAB)MHZ, 2.5. 16 Most recently reiterated in Case T-117/08, Italy v. European Economic and Social Committee [2011] ECR 00000 at p. 71.

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6  Enforceable Language Rights in the European Union 6.3.1   The Invisible Hierarchy of Languages: The Institutional Language Regime of the EU One of the most obvious restrictions on linguistic diversity posed by European integration is inherent in the failure of the official institutional language policy of the EU: although formally the European institutions use all 23 official languages in their work, reality looks strikingly different. Indeed, according to Ahn, the Union’s “respect for linguistic diversity in its institutional language policy is rather a symbolic policy statement, which does not carry much weight”.17 Only a handful of languages, most prominently English but also French and German, are employed in everyday work, whereas other official languages are largely neglected.18 Of course, it may be pointed out that the dominance of English in Europe is not necessarily attributable to a conscious European language policy but much rather to the international influence of the United States in the area of economy, politics and popular culture.19 This notwithstanding, the threat to linguistic diversity in Europe (and elsewhere for that matter) is presented as the threat of Englishization of other languages.20 As Phillipson points out: “English is influential and popular worldwide because this brand of language connotes pleasure, employment, influence, and prestige.”21 This trend is reinforced by the fact that the more people speak English as their mother tongue or as a foreign language, the more incentive non-speakers shall have to learn English too, due to probability-sensitive language learning to maximize their economic and social opportunities.22 The unequal status of the official languages in the European public sphere leads to a deep-lying discontent among certain linguistic groups, especially as Regulation 1/58 on 17 E. Ahn, ‘A Region Divided/United: Language Policy Developments in the European Union’, cited by Károly 2008, p. 133. 18 Károly 2008, p. 131. According to Phillipson “there is unofficial acceptance of a linguistic hierarchy with French and English at the top”: R. Phillipson, ‘English for the Globe, or Only for Globe-Trotters?’, in: Ch. Mair, The Politics of English as a World Language, ASNEL Papers 7, Rodopi, B.V. Amsterdam – New York, 2003, p. 21. 19 Károly 2008, p. 134. In the figurative description offered by Phillipson “English may be seen as a kind of linguistic cuckoo, taking over where other breeds of language have historically nested and acquired territorial rights, and obliging non-native speakers of English to acquire the behavioral habits and linguistic forms of English”. R. Phillipson, English Only Europe?, Routledge, London 2008, p. 4. For further reasons see Phillipson, 2003, pp. 24-26. 20 Vividly illustrated by volume titles such as ‘English-Only Europe?’. Phillipson 2008, ‘The Politics of English as a World Language: New horizons in postcolonial cultural studies’. Mair 2003. 21 Phillipson 2008, p. 7. 22 P. Van Parijs, ‘Linguistic Diversity as a Curse and as By-product’, in: X. Arzoz (Ed.), Respecting Linguistic Diversity in the European Union, John Benjamins Publishing Company, Amsterdam, 2008, p. 22. Speaking English, the global lingua franca opens up employment opportunities, especially for native-speakers, P. J. Weber, Kampf der Sprachen, Verlag Krämer, Hamburg, 2009, p. 12. At the same time, this also “has serious adverse effects on civil society and democratic participation in the political process. English is the language of the powerful. For the majority, lack of proficiency in English closes doors”. Phillipson 2008, p. 7.

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Petra Lea Láncos language use in the institutions does not make any differentiation between the official languages of the Union.23 According to Mayer and De Witte, the ‘principle of the equality of languages’ may be derived from the Regulation, which forms integral part of the European constitutional construct.24 However, in its ruling on Kik, the European Court of Justice (hereinafter ‘ECJ’) found that nothing in the Treaty or the case law of the ECJ supports the existence of such a principle.25 The Court reiterated its position in Italy v. Commission.26 According to settled case law, there is a possibility of introducing a gradual system among the languages – i.e. to exclude certain official languages from the category of working languages. Inherent in such a system is the possibility of a disadvantage to the speakers of languages thus excluded. For example, Union citizens speaking an official language which does not belong to this privileged circle or the speakers of minority vernaculars may not, or only at a considerable cost or effort participate in certain administrative procedures of the Union. Further, the speakers of such disadvantaged languages have less chances of employment on the ‘Union job market’ than the speakers of English, French or German. Weber asserts, that the status of English is no doubt related to the dominance of the English speaking (Anglophone) cultures – for example persons speaking English as their mother tongue are often in a preferential position when applying for certain vacancies.27 According to Grin, the supreme status of the English language results in an overall ­social advantage for the UK and its citizens, with approximately 17 billion Euros in savings and income per annum.28 Such a privileged position of the English language is not even justified by the proportion of the English tongued population in the EU: English is only the third largest linguistic group in the Union. Thus, not only are minority, regional and immigrant languages excluded from the European communicative space, but in practice, communication with and within the institutions and bodies of the Union is restricted to just a few of the official languages resulting in an unappealing linguistic hierarchy.29

23 Regulation No. 1 determining the languages to be used by the European Economic Community. 24 B. De Witte, ‘Language Law of the European Union: Protecting or Eroding Linguistic Diversity’, in: R. Crauford Smith (Ed.), Culture and European Union Law, Oxford University Press, 2004, p. 221. 25 Case C-361/01, Kik v. OHIM [2003] ECR I-8283, p. 87. 26 “[I]t should be noted that there is no provision or principle of Community law requiring that such publications should routinely be made in all the official languages.” Case T-185/05, Italy v. Commission [2008] ECR II-3207, at p. 115. 27 Weber 2009, p. 6. 28 F. Grin, ‘Principles of policy evaluation and their application’, in: Arzoz 2008, p. 80. 29 F. Palermo, ‘Linguistic Diversity within the Integrated Constitutional Space’, European Diversity and Autonomy Papers (‘EDAP’), No. 2, 2006, p. 6.

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6  Enforceable Language Rights in the European Union We may witness an emergence of ‘language cases’ not only before the Court, but also the ­European Ombudsman,30 signalling the discontent of the Union citizens with such a European linguistic set up. In particular, the European Ombudsman examined a complaint related to the published communications and internal documents of the Commission, complaining that these are often only made available in English.31 Although Regulation 1049/200132 grants Union citizens the right of access to documents of the European Parliament, Council and Commission, it is silent on the issue of which language versions have to be made available to the applicants, enigmatically (and perhaps contradictorily) stating: “Documents shall be supplied in an existing version [. . .] with full regard to the applicant’s preference.”33 According to the Ombudsman, although there is no legal obligation to draw up a new document containing the information the applicant requests, “it is good administrative practice to provide information when requested.” In particular, “the principle of good administration requires the institutions to be citizen friendly”, implying that it is the interests of the citizens that have to be given priority rather than internal institutional aspects and difficulties, and thus, institutions should, as far as possible provide “information in a language that the interested person requests, even when this information [is] only available in a different language.”34 A very topical example for the struggle of official languages against privileged languages of the EU is the newly authorized enhanced cooperation of 25 member states on the establishment of a unitary patent protection. The EU has long strived to establish a unitary patent protection system in order to drastically cut back on the costs of patent applications which were very expensive due to translation requirements. The high costs of patent protection in the EU made the European market uncompetitive from a global perspective, therefore, member states started working on a solution to reduce the number of languages in which the patent applications have to be made. For about a decade the negotiations on the unitary patent dragged on because certain member states were not willing to give up the compulsory use of their official languages in the patent system. Finally, the majority of the member states decided to side step Italy and Spain and launched an enhanced cooperation for the unitary patent system based on the language regime of the European Patent Office (comprising English, French and German).35 30 Decision of the European Ombudsman closing his inquiry into complaint 3147/2006/IP against the European Personnel Selection Office (EPSO); Decision of the European Ombudsman on complaint 3191/2006/ (SAB)MHZ against the European Commission. 31 3191/2006/(SAB)MHZ. 32 EP and Council Regulation of 30 May 2001, 1049/2001, OJ L 145, regarding public access to European Parliament, Council and Commission documents. 33 Ibid., Art. 10 para. 3. 34 3191/2006/(SAB)MHZ, 2.5. 35

(last accessed 18 ­December 2011); B. Cordery, ‘An EU Patent? Proposal for Enhanced Cooperation’, Kluwer Patent Blog (12 January 2011), (last accessed 18 December 2011).

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Petra Lea Láncos It seems neither Union citizens nor member states are ready to accept the decline of the significance of their languages in the European political, cultural and economic space and are increasingly challenging such discriminatory practices. This also proves that language disputes are never just disputes over language. “[. . .] [W]hen a language group fights to preserve its language, it is never just preserving a tool for communication: It is also preserving certain political claims, autonomous institutions, cultural products and practices, and national identities”.36 Thus, the issue of linguistic diversity may also be perceived as a struggle for political assertion. Looking towards the future, Weber even suggests, that “with the deepening of ­European harmonization, the cultural and linguistic power struggles between the different peoples shall intensify, as local and regional vernaculars will increase in importance for the population”.37 The increasing dominance of English has several important consequences, all to the detriment of linguistic diversity. Firstly, on the global and EU level linguistic diversity is reduced due to the shrinking of the number of speakers and the territories where ‘unpopular’ smaller languages are spoken. This phenomenon is not exclusively induced by the spread of English, it is but one important factor in the process. Skutnabb-Kangas somewhat bleakly declares: “big languages turn into killer languages, monsters that gobble up others, when they are learned at the cost of the smaller ones”.38 Secondly, languages become ‘infiltrated’ by English terms, expressions and syntax,39 which reduces the diversity or richness of other languages. A well-known example is the emergence of ‘franglais’, persecuted by prominent French linguists and politicians.40 Thirdly and ironically, the English language itself becomes affected and distorted in the process of its massive employment by nonnative speakers, as exemplified by the emergence of ‘Euroenglish’. According to Jankojć, Euroenglish even has dialects, regional variants and professional jargons, all resulting in a

36 W. Kymlicka & F. Grin, ‘Assessing the Politics of Diversity in Transition Countries’, in: F. Daftary & F. Grin (Eds.), Nation-Building, Ethnicity and Language Politics in Transition Countries, ECMI/LGI Series on ­Ethnopolitics and Minority Issues, Open Society Institute, Budapest, 2003, p. 11. 37 Weber 2009, pp. 13-14. 38 T. Skutnabb-Kangas, ‘Linguistic Diversity and Biodiversity – The Threat from Killer Languages’, in: Mair 2003, p. 33. 39 “Reduced linguistic diversity so understood is a direct and unavoidable consequence of the spreading of a lingua franca. [. . .] Whenever natives of some language learn another language, this expands the possibility of borrowing and other forms of influence. However, as most native speakers of a given language become competent in the same non-native language, this possibility becomes a strong probability, and the language they all learned will tend to exert a lasting influence on their native tongue – most obviously through the import of vocabulary, sometimes also morphological and syntactic changes.” Van Parijs 2008, p. 21. 40 P. Thody, Le Franglais: Forbidden English, Forbidden American – Law, politics and language in contemporary France, The Athlone Press, London 1995, pp. 34-37. Thody points out, that the animosity towards imported English words are also fed by Anglophobia present especially on the French political right. See also R. ­Munday, ‘Legislating in Defence of the French Language’, 44 Cambridge Law Journal 2, 1985, pp. 218-219.

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6  Enforceable Language Rights in the European Union process which changes English from within.41 Fourthly, linguistic diversity is especially reduced on the territories of states where the official language is English, as the more people speak English within and outside the home country, the less incentive English speakers will have to learn a foreign tongue. This leads to massive monolingualism in the respective states and conversely, an even greater demand for other language speakers to learn English to accommodate monolingual English speakers.42

6.3.2   Forces of the Internal Market: The Free Movement of Languages As regards the threats and frustration posed by European integration to linguistic diversity, another point of departure may be the area of market freedoms within the internal market and the possibility of the restriction of free movement based on legitimate language goals. Here, the threat does not necessarily lie in the unimpeded spread of the English language and often it is not the official national language that is endangered, but the minority and regional languages of the different member states. In the area of the free movement of goods and services, the problem is usually captured by the so-called ‘tradelinkage-debate’, which centres around the issue of cultural values and their commodification in the process of free trade.43 Although the ‘culture and trade quandary’ is typically marked by US dominance in the audiovisual sector44 – and a concomitant dominance of American culture and English as the language of such products, a phenomenon against which the EU attempts to step up as a united front in the framework of the WTO45 – the internal market may be another (though arguably more confined) battlefield for invoking cultural justifications to restrict trade in goods and services threatening linguistic diversity. As Toggenburg points out, “de iure the 4 market freedoms may considerably constrain national language policies”.46

41 According to Jankojć Euroenglish “is a very bare language, but it is also a supranational language which does not belong to any specific country; it is the language used at international conferences, in world trade and international finance. The non-native speakers who use this language have ‘tainted’ it: it contains and accepts mistakes that would be unacceptable for a native speaker”. Z. E. Jankojć, ‘University, Students, Plurilingualism, Euroenglish and Society of Knowledge in the Context of European Integration’, , p. 16 (last accessed 18 December 2011). 42 Phillipson 2008, p. 63. 43 R.J. Neuwirth, ‘The ‘Cultural Industries’: A Clash of Basic Values? A Comparative Study of the EU and the NAFTA in the Light of the WTO’, EDAP, No. 4, 2004, pp. 7, 12-13. 44 J. Shi, ‘The “Specificity” of Cultural Products versus the “Generality” of Trade Obligations’, Yale Law School Legal Scholarship Repository, Student Scholarship Papers, paper 104, Spring 2010, pp. 3-4. 45 M. Burri, ‘Cultural Diversity as a Concept of Global Law: Origins, Evolution and Prospects’, Diversity 2, 2010, p. 1060-1062. 46 G.N. Toggenburg, ‘Die Sprache und der Binnenmarket im Europa der EU: Eine kleine Beziehungsaufstellung in 10 Punkten’, EDAP, No. 1, 2005, p. 15.

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Petra Lea Láncos The internal market established within the framework of European integration is based on the premise of free trade, where possible cultural justifications restricting the free movement of goods and services must be construed extremely narrowly.47 Member states are not free to protect their cultural and linguistic diversity at their own discretion, but must adhere to the imperative of free movement.48 The commodification of cultural values and their impact on national, regional, minority and other cultural and linguistic communities is thus very apparent in the framework of the internal market.49 And while the EU generally heralds itself as the guardian of cultural values, it attempted to introduce a ­so-called disconnection clause to the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions to rule out the effects of the agreement within the internal market50 to prevent member states from invoking the Convention against ­European law. It is also worth reiterating, that applications and procedures before ­European offices and bodies related to the functioning of the internal market – such as

47 P.L. Láncos, ‘A kultúra fogalmának és védelmének alakulása az UNESCO és az Európai Közösség jogforrásainak fényében’, 3 Iustum Aequum Salutare 4, 2007, pp. 126-127. 48 For example, although the ECJ adopts a seemingly strict approach to labeling by compelling shop owners to at least use ‘languages easily understood’ by the consumers of the member state when selling products not labeled in the official language of the member state, in essence, the ECJ and the Art. 14 of Council Directive 79/112/EEC of 18 December 1978 are opening the door to speculation about which languages are “easily understood” in a member state and more importantly: the possibility of not using native languages in, e.g. product labeling. In Piageme II the ECJ stipulated: “The expression ‘a language easily understood’ used in Art. 14 of the Directive is not equivalent to ‘the official language of the Member State’ or ‘the language of the region’. It is designed to ensure that the consumer is provided with information rather than to impose the use of a specific language.” This wide-reaching formulation would in practice typically result in a reduction of possible language versions (Case C-85/94, Piageme v. Peeters [1995] ECR I-2955; C-385/96. European Court reports, 1998, p. I-04431). At the same time, it is difficult to ascertain which languages may be prescribed for labeling purposes by the members states in the individual cases. As Cosmas points out: “If the easily understood language is neither the official language nor the language of the region, what language is it? [. . .] Are member states still authorized, or are they no longer authorized, to legislate on matters of language? Where an assessment is made by the national court on a case-by-case basis, who is the ‘purchaser’ to be taken into account when it assesses whether the language is easily understood?” (Opinion of Advocate General Cosmas in Case C-385/96, Goerres [1998] ECR I-4433 at p. 39). Thus, although members states are free to determine their individual language policies, these must conform to – among others – the imperative of free movement as the example of the Toubon law and the issues of French labeling show. See also Case C-33/97, Colim v. Bigg’s [1999], ECR 1-3175; Case C-366/98, Yannick Geffroy and Casino France [2000] ECR 1-6579. 49 “Processes of market integration in an unbounded economy have homogenizing consequences. [. . .] Thus, unsurprisingly, the identity of the citizens of the European Union largely coincides with the identity of market participants and consumers.” P.A. Kraus, ‘A one-dimensional diversity?’, in: Arzoz 2008, p. 92. For a better understanding of the complexity of European identity, see M. Szabó, ‘Európai identitás és a Lisszaboni Szerződés’, 8 Iustum, Aequum, Salutare 2, 2012, pp. 261-266. 50 S. von Schorlemer, ‘Kulturpolitik in Völkerrecht verankert’, in: Deutsche UNESCO-Kommission, Übereinkommen über den Schutz und die Förderung der Vielfalt kultureller Ausdrucksformen 2006, pp. 40, 57; M. Smrkolj, ‘The Use of the “Disconnection Clause” in International Treaties: What does it tell us about the EC/ EU as an Actor in the Sphere of Public International Law?’, GARNET Conference, “The EU in International Affairs”, Brussels, 24-26 April 2008, Available at , p. 2.

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6  Enforceable Language Rights in the European Union the Office for Harmonization in the Internal Market or the European Patent Office – are typically constrained by a judicially confirmed restrictive language regime.51 In relation to the internal market, the issue of possible language restrictions on the free movement of persons plays an important role. In its jurisprudence the European Court of Justice maintained that “in the context of a Community based on the principles of free movement of persons and freedom of establishment, the protection of the linguistic rights and privileges of individuals is of particular importance”.52 Whereas in the Groener case the ECJ acknowledged the efforts of national governments to promote the use of a certain language expressing national identity and culture and recognized the legitimacy of policies aiming at “the protection and promotion of a language of a Member State which is both the national language and the first official language,”53 it was silent on the question whether this also holds true for other, for example minority languages as well.54 It is interesting to note that the exercise of free movement and intra-community migration may actually contribute to the flowering of linguistic diversity in the member states.55 For example in the Garcia Avello case, the ECJ found Belgian rules governing persons’ surnames to be discriminatory and held: “it is common ground that, by reason in particular of the scale of migration within the Union, different national systems for the attribution of surnames coexist in the same Member State”,56 a phenomenon which potentially increases the diversity of languages and linguistic traditions in the member states.57 In this sense the free movement of persons within the internal market is much rather a catalyst, than a constraint of linguistic diversity. However, as Julie Bernier remarks, the principles of non-discrimination and proportionality inherent in internal market rules “circumscribe significantly the range of language policy measures available to Member States. [. . .] This highlights the tension between the EU’s expressed commitment to linguistic diversity and

51 Case C-361/01P, Kik v. OHIM [2003] ECR I-8283. 52 Case C-137/84, Ministére Public v. Mutsch [1985] ECR 2681 at p. 2695; later also in Case C-274/96, Bickel and Franz [1998] ECR 1-7637. 53 Case C-379/87, Groener [1989] ECR 3967. 54 N.N. Shuibhne, ‘The European Union and Minority Language Rights’, 3 International Journal on Multicultural Societies 2, 2001, p. 71. Shuibhne points out that in the aftermath of the Kik judgment the position of non-official languages in the internal market seems particularly frail. ‘Does the Draft EU Constitution Contain a Language Policy?’ II Mercator International Symposium: Europe 2004: A new framework for all languages? , p. 5 (last accessed 18 December 2011). 55 P. Hansen, ‘A Common Market, a Common “Problem”: Migration and European Integration Before and After the Launching of the Single Market’, Center for Ethnic and Urban Studies, 2005, p. 29. 56 Case C-148/02, Carlos Garcia Avello v. Etat Belge [2003] ECR I-11613, at p. 42. 57 “Names are intensely individual and mark identity both of the unique person and of the person as a member of a group. [. . .] In regard to the public use of names, the state may recommend and more or less vigorously enforce that people register their children with names of a particular form in a language or with names only in certain langauges. [. . .] [H]uman rights are likely to be violated when the state intervenes in the relationship between individual’s names and group identity.” B.H. Jernudd, ‘Personal Names and Human Rights’, in: Skutnabb-Kanga & Phillipson, 1995, pp. 121, 130.

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Petra Lea Láncos its commitment to secure internal market freedoms”.58 For example, similar to the 1994 French Carignon law, the new Hungarian media law shall prescribe a compulsory ratio of at least 50% of the broadcasting time of community radios and 25% of broadcasting time for other radio agencies to be filled with Hungarian songs.59 Although member states may require media service providers to comply with rules on national content on the basis of sustaining cultural diversity, the proportionality of such a measure may certainly be disputable.

6.3.3   Responding to the Language Question: The EU’s Efforts to Safeguard and Promote Linguistic Diversity The EU itself seems to acknowledge the perception of European integration as a threat to linguistic diversity, as illustrated by the European Commission’s paper on multilingualism: “Anyone who feels that his or her cultural identity, and that means primarily language, is protected, will not feel that identity threatened. Such a threat would have been anathema to the founding fathers of the European Union”.60 In this vein, the European Union initiated various programmes, enacted legislation and set up institutions for promoting multilingualism and the safeguarding of linguistic diversity.61 Most prominently, the establishment of a European Agency for Linguistic Diversity and Language Learning was considered,62 however, the idea was later abandoned in favour

58 J. Bernier, ‘EU Economic Integration and National Language Policies: An Overlooked Tension’, delivered at the Conference: Debating Language Policies in Canada and Europe, University of Ottawa, 31 March-2 April 2005, pp. 6-7. 59 Law No. CLXXXV of 2010. On media service providers and mass communication, Art. 66 para. 4 item h and Art. 21 para. 2. 60 European Commission: Multilingualism: The Key to Success, 2002, quoted by Kraus, 2008, p. 118. 61 Schilling sums up the activities of the EU in this field as follows: “On the one hand, by a soft-law approach, the EU promotes language-learning by its citizens. [. . .] On the other hand, one could claim that it strives to make language-learning by its citizens superfluous, aiming ‘to give citizens access to European Union legislation, procedures and information in their own languages’. This aim is pursued by a hard-law approach: indeed, similar to the situation in a multilingual State without a lingua franca, many of the languages spoken within the EU are made official languages of the EU.” T. Schilling, ‘Language Rights in the European Union’, 9 German Law Journal 10, 2008, pp. 1224-1225. For the promotion of language learning and multilingualism, the EU has launched several youth and adult projects, such as SOCRATES I (including LINGUA, ERASMUS, COMENIUS). In the field of preserving lesser used languages, most recently the three-year project European Language Diversity for All (ELDIA) was launched, which aims at developing a general system for measuring and evaluating effects of changing balances between European languages. Previous efforts include the establishment of the European Bureau for Lesser Used Languages and the Mercator Network for the recognition and protection of regional and minority languages. 62 The relevant feasibility study may be downloaded from: (last accessed 18 December 2011).

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6  Enforceable Language Rights in the European Union of a network-approach building on existing structures and developing ‘Language Diversity Centres’ promoting multilingualism and linguistic diversity.63 It is worth addressing the issue of multilingualism, as it is an important pillar of the language policy of the European Union besides the respect for linguistic diversity.64 The Commission asserts, that a successful multilingualism policy can strengthen life chances of citizens: “it may increase their employability, facilitate access to services and rights and contribute to solidarity through enhanced intercultural dialogue and social cohesion. Approached in this spirit, linguistic diversity can become a precious asset, increasingly so in today’s globalised world”.65 Apart from the fact that employability, access to services etc. may only be enhanced through learning an official language of the EU, preferably English, French or maybe G ­ erman, the project of a multilingual Europe actually undermines linguistic diversity, because the more languages people have in common, the more the linguistic evenness of Europe – and therefore also its diversity is reduced.66 The problem is exacerbated by the fact that in Europe multilingualism is predominantly ‘Englishization’, as English is by far the most popular ‘foreign’ language learned in order to communicate effectively beyond borders.67 Thus, multilingualism cannot be seen as a tool for increasing linguistic diversity. Apart from the (limited) efforts of the European Union to sustain its linguistic diversity, the new guarantees introduced by the Lisbon amendments also deserve attention. However, it remains to be seen, what effect these new guarantees shall have on European legislation and the jurisprudence of the European Court of Justice in possible cases related to the clash of languages and the imperative of rationalization, harmonization and free movement. 6.4 Diversity Concepts and their Origins 6.4.1   You Have the Right to Remain Silent: Linguistic Diversity in the Nation-State The fears, threats and discontent associated with European integration are the concrete manifestations of how a common government willingly or unwillingly encroaches upon 63 COM/2005/0596 final, Communication from the Commission to the Council, the European Parliament, the European Economic and Social committee and the Committee of the Regions – A New Framework Strategy for Multilingualism, at II.1.2. 64 See e.g., COM(2003) 449 final, Promoting Language Learning and Linguistic Diversity: An Action Plan 2004-2006, Brussels, 24 July 2003. On p. 5 it reads: “The range of foreign languages spoken by Europeans is narrow, being limited mainly to English, French, German, and Spanish. Learning one lingua franca alone is not enough. Every European citizen should have meaningful communicative competence in at least two other languages in addition to his or her mother tongue.” 65 COM(2008) 566 final, Multilingualism: an Asset for Europe and a Shared Commitment Brussels, 18 September 2008, 3 (emphasis added). 66 Van Parijs 2008, p. 20. 67 T. Berchem, ‘Deliberations on a European Language Policy’, in: R. Ahrens (Ed.), Europäische Sprachenpolitik, Universitätsverlag Winter, Heidelberg 2003, pp. 29-30, Phillipson 2008, pp. 64-66.

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Petra Lea Láncos rights, interests and sentiments related to language use in a linguistically diverse setting. Although the concrete reservations and problems may be different, governments of multilingual societies face very similar challenges. Multilingual states and the need to accommodate the interests of language groups with that of the general interest is not a novelty, indeed, classic examples include the Roman Empire from antiquity,68 the Ottoman Empire and the Holy Roman Empire of the middle ages or the Austro-Hungarian Monarchy of modernity. For example, as a consequence of the political assertion of the different national groups in the Habsburg Monarchy, the Basic Law of 1867 provided that all ethnic entities of the empire enjoy equal rights, along with the “inviolable right to the preservation and fostering of [their] nationality and language”.69 However, it is the 18th and 19th century movement for the building of nationstates that is generally taken as the starting point for the analysis of the emergence of diversity policies, as these had a lasting impact on the linguistic setting of contemporary states and societies (a), which in turn gave rise to the different concepts and policy options related to the management of linguistic diversity (b). a) Indeed, Anderson suggests that there is an intrinsic relationship between linguistic ­diversity and the nation-state. In analysing the emergence of national consciousness, ­Anderson points out that the convergence of capitalism and print technology on the fatal diversity of human language created the possibility of a new form of imagined community, which in its basic morphology set the stage for the modern nation.70 Thus, linguistic diversity is seen as the starting point for the emergence of the nation-state, soon to be quenched in the process of nation-state building71 through a variety of assimilationist policies. Linguistic diversity poses a challenge to the idea of the unitary and efficient modern nation-state, because the multiplicity of languages renders government less efficient while the political basis of the state is fragmented along the lines of a defining factor of 68 Another example is mentioned by Fidrmuc, Ginsburgh and Weber related to the “Rosetta Stone: a royal decree inscribed into a large stone slab in 196 BC to announce the royal cult of King Ptolemy V on the first anniversary of his accession to the Egyptian throne. As Egypt was ruled by the (Greek speaking) Ptolemaic dynasty at that time, the inscription was rendered both in Greek and Egyptian (the latter being in two versions, the traditional hieroglyphic script and the simpler contemporaneous demotic script)”. J. Fidrmuc et al, ‘Economic Challenges of Multilingual Societies’, . 2005, p. 52 (last accessed 18 December 2011). 69 Art. 19 of Staatsgrundgesetz vom 21 Dezember 1867, über die allgemeinen Rechte der Staatsbürger für die im Reichsrate vertretenen Königreiche und Länder (StGG), RGBl Nr. 142/1867. 70 B. Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism, Verso Books 2006, p. 48. 71 Kymlicka and Grin point out an interesting aspect of the exclusive language policy of some European nation-states. Although such a language regime is restrictive on other languages, it may also “be interpreted as protecting an endangered language. [. . .] Policies aimed at privileging the Estonian language over the Russian language within Estonia are, in part, an attempt to privilege a majority titular language over a minority language. But they are also an attempt to protect a small, potentially threatened language confronted by a world language”. Kymlicka & Grin, 2003, p. 6.

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6  Enforceable Language Rights in the European Union personal and group identity.72 Adopting a single official language or restricting official communication to a selected few vernaculars is thus justified by two reasons: first, by the pursuit of a single ‘nation’, and second, by the need to communicate efficiently with the citizens.73 Many authors refer to the fact that nations are in fact “imagined communities”,74 more or less artificially construed entities, the building of which relies on, among others, a restrictive language policy.75 The construction of the nation-states followed the principle of cuius regio eius lingua,76 where “language turned into a symbol of political and national identity and belonging”.77 Thus national identity and unity is forged by the “formation of linguistic and cultural homogeneity via the establishment of a common, usually single, hegemonic ‘national’ language.”78 Illustrating the significance of language in the formation of identity, Andrássy romantically observes: “Language shows us who and what we are, it is the bearer and expression of our identity and culture: in a sense language is our home, our spiritual fatherland.”79 However, the significance of language is not purely cultural – the political aspect of language lies in its prominent role in enabling political participation.80 The indispensability of language as a means of political participation also justifies rationalization and the restriction of the number of languages used in the official sphere, in order to render political communication between the state and the citizens more efficient.81 Several studies on this subject refer to the notorious quote by John Stuart Mill, who analysed the relationship between linguistic diversity and political participation and came to the conclusion that: Free institutions are next to impossible in a country made up of different ­nationalities. Among a people without fellow-feeling, especially if they read and speak different languages, the united public opinion, necessary to the 72 J. Edwards, Language and Identity, Cambridge University Press, 2009, p. 21. States where there is no dominant language group (Switzerland, Belgium) or where large linguistic communities are present (Italy) the identity shaping force of language is ever so apparent. 73 Toggenburg 2005, p. 6. 74 “It is imagined because the members of even the smallest nation will never know most of their fellowmembers, meet them, or even hear of them, yet in the minds of each lives the image of their communion. [. . .] Nationalism is not the awakening of nations to self-consciousness: it invents nations where they do not exist.” Anderson 2006, p. 6. 75 D.M. Weinstock, ‘The Antinomy of Language Policy’, in: W. Kymlicka & A. Patten (Eds.), Language Rights and Political Theory, Oxford University Press, 2007, p. 253; Toggenburg 2005, pp. 5-6. L. Trócsányi, ‘Az anyanyelv használatához való jog a nemzeti alkotmányokban’, 4 Romániai Magyar Jogtudományi Közlöny, 2006, p. 7; Weber 2009, p. 12. 76 Kraus 2008, p. 93. 77 E. Shohamy, Language Policy – Hidden agendas and new approaches, Routledge, 2006, p. 27. 78 Ibid., p. 29. 79 Gy. Andrássy, ‘Az anyanyelv használatához való jog jellege’, 4 Romániai Magyar Jogtudományi Közlöny 2, 2006, p. 14. 80 P. L. Láncos, ‘Részvételi jogok és nyelvi sokszínűség az Európai Unióban’, 4 Miskolci Jogi Szemle 2, 2009, pp. 115-117. 81 P.A. Kraus, ‘A one-dimensional diversity?’, in: Arzoz 2008, p. 86; Toggenburg 2005, p. 6.

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Petra Lea Láncos working of representative government, cannot exist [. . .]. One section does not know what opinions, or what instigations, are circulating in another82 b) However, centralization and restrictive language policies associated with nation-state building gave rise to similar fears and sentiments as described above in relation to the ­European Union. May draws attention to the power structures behind national language policies stating that ‘state-mandated’ languages are clearly political acts which advantage certain groups over others.83 As such, the nation-state asserts or cements the power position of typically the majority language group. Language as a means of domination is even more apparent in states, where “the ‘dominant’ national language has not been the language of the majority of the population, but the language of the groups holding power”.84 Inherent in such language regimes was the discrimination and degradation of large parts of the population. As a result of the struggle of linguistic minorities for recognition, the rise of human rights and the principle of self-determination in the 20th century, the one-sided, centralizing approach of the nation-state towards languages became outdated. The respect for cultural and linguistic identities and the guarantees of language rights acquired the status of fundamental rights.85 For example, the 1966 International Covenant on Civil and Political Rights foresees, that in those States in which [. . .] linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, [. . .] or to use their own language. It must be however pointed out that the Covenant merely protects the linguistic rights of minorities. It is important to note, that according to the jurisprudence of the Permanent Court of International Justice, to achieve a veritable equality of minorities, it may be useful to grant them special rights unavailable to the majority population (affirmative action).86 According to the Permanent Court of International Justice, the rationale for minority protection treaties was to “ensure that members of racial, religious and linguistic minorities 82 D. Schnapper, ‘Linguistic Pluralism as a Serious Challenge to Democratic Life’, in: P. Van Parijs (Ed.), Cultural Diversity versus Economic Solidarity, De Boeck, Brussels, 2004, p. 213. 83 S. May, ‘Misconceiving Minority Language Rights: Implications for Liberal Political Theory’, in: Kymlicka & Patten 2007, pp. 126-127. 84 Such as in the case of Paraguay where Spanish was introduced and installed as the official language by the colonizers. Today, the local vernacular Guarany spoken by the vast majority of the population is a co-official language of Paraguay. Archiburgi 2005, p. 540. 85 I. Ernszt, ‘Ébresztő a (látszólagos) csipkerózsika álomból? – nyelvi jogok a nemzetközi jogban’, 4 Romániai Magyar Jogtudományi Közlöny 2, 2006, p. 23. Of course, the status of ‘fundamental right’ may be disputed – even the most fervent supporters of linguistic rights formulate very carefully: “linguistic rights should be considered basic human rights” and “restriction on these rights may be considered and infringement of fundamental LHRs” (emphasis added), R. Phillipson, M. Rannut & T. Skutnabb-Kangas, ‘Introduction’, in: Skutnabb-Kangas & Phillipson 1995, p. 1, 2. 86 Minority Schools in Albania; Greece v. Albania. Advisory Opinion 26. PCIJ, Ser. A./B, No. 64, 1935; P. Kovács, ‘Az európai kisebbségvédelmi kodifikáció legújabb eredménye’, 5 Regio – Kisebbség, politika, társadalom 4, 1994, p. 153.

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6  Enforceable Language Rights in the European Union should be placed in every respect on a footing of perfect equality with other nationals of the state”. There are also developments towards the adoption of a separate legal document solely related to linguistic rights. The so-called Barcelona Declaration (Universal Declaration of Linguistic Rights) of 1996 signed by UNESCO and several non-governmental organizations proposes setting up various bodies to ensure the protection of such rights, while numerous prominent linguists are also urging the adoption of a binding charter on linguistic rights.87 Such a Charter is the European Charter for Regional and Minority Languages, which came into force in 1998, however, the rights enshrined in the charter are not enforceable and do not extend to speakers of immigrant languages. A classic example for a modern multilingual political community would be India, with 114 different languages spanning the peninsula.88 The language policy introduced in this culturally, linguistically and religiously diverse country reflects the multilevel and decentralized organization of the state itself.89 Hindi serves the function of national ‘official language’ with the role of unifying the different language groups and forging national identity. English was retained as the language of administration for a provisional period of 15 years, however, due to its widespread nature and resentment towards Hindi, English remains an important common language of the country.90 On the state level, the majority languages serve as official regional languages while minority speakers are afforded constitutional protection. There are three important trends in this linguistically diverse country: the ‘nationalist agenda’ of cultural unification and the promotion of Hindi through the ‘Bollywood’ film industry, the importance of the elite language English as the link to education and wealth, and finally the economic drawbacks related to the efforts of preserving linguistic diversity. In order to accommodate its linguistic diversity and at the same time benefit from its economic potential, India instituted a tri-language education system based on the instruction of a regional vernacular, Hindi as the national tongue and a E ­ uropean language as a window to the international community. The inclusiveness of preserving regional and minority languages and at the same time promoting a ‘national’, unifying language and a European tongue as the language of world economy represents an attempt to balance social, political and economic interests arising on all levels of the state.91 87 The Declaration may be downloaded from: (last accessed 18 December 2011). Skutnabb-Kangas & Phillipson, ‘Towards the formulation of a universal declaration of linguistic human rights’, in: Skutnabb-Kangas & Phillipson 1995, p. 98. 88 G. Mahajan, ‘Negotiating Cultural Diversity and Minority Rights in India’, in: Democracy, Conflict and Human Security, International Institute for Democracy and Electoral Assistance, Publications Office, Stockholm, 2006, p. 111. 89 Ibid., p. 115. 90 Ibid., p. 113. Although the language of colonialism, today, English is perceived as ‘neutral’ as opposed to oppressive Hindi. Linguistic resentments led to the movement of ‘Hindi Never, English Ever’ where “English was considered at least an equalizer between the various languages”. A.R. Fullman, Legacies and Limitations: Legislating Linguistic Diversity in India, graduate work at George Mason University, Fairfax 2005, pp. 5-6. 91 Fullman 2005, pp. 5-7; Witt 2001, pp. 72-73.

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Petra Lea Láncos The case of India as well as the developments described above entail important messages not only for multilingual states but also for the European Union, as they face the same challenges and dilemmas: on the one hand, there is a general interest related to intensifying and securing internal trade as well as communicating sufficiently with the citizens which requires the restriction of language use and the introduction of a single official language, on the other hand, intercultural dialogue, the respect for personal identity and equality requires the promotion of linguistic diversity and granting special language rights. 6.4.2   Diversity-Speak: The Language of Linguistic Diversity Whereas the nineteenth century and its fervid attempts at nation-state building put assimilation and homogeneity to the fore, the twentieth century has elevated diversity to the unchallenged value of the millennium. Diversity has become the buzz-word of Western democracies and conquered both culture and politics on the regional, national and international level.92 There are two basic concepts of diversity at work which (instinctively and scientifically) inform and influence the debate on linguistic diversity: biodiversity and multiculturalism. 6.4.2.1  A Green Thumb for Languages: Bringing Languages into the Biodiversity Discourse The first concept is directly linked to the term biodiversity. Biodiversity is an expression employed to describe the biological (species, ecosystems or genetic) diversity of a defined area.93 Biodiversity in a certain region may be high or low, representing richness in variety or a lack thereof. The aspiration to protect biodiversity linked with the equally popular term of sustainable development evidences a shift in global consciousness towards preserving our common natural heritage in its abundance and variety. The protection of biodiversity is justified and indeed promoted based on the realization that any reduction in the diversity of an ecosystem results in instability and possibly further changes, reductions and extinction.94 Such a result is perceived as a loss due to the fact that for example a 92 X. Arzoz, ‘The protection of linguistic diversity through Art. 22 of the Charter of Fundamental Rights’, in: Arzoz 2008, p. 152. 93 94 A nuanced approach is offered by Giulio A. De Leo and Simon Levin: “In reality, all natural ecological systems change over time, and it is extremely difficult to determine a normal state for communities whose measurable properties are often in flux, either because of natural disturbance or because of internal ecological mechanisms.” ‘The Multifaceted Aspects of Ecosystem Integrity’, (1997) (last accessed 18 December 2011). Perhaps this perspective is also useful for studying the natural changes and shifts in languages and their use. For example, Mamadouh highlights some natural shifts in the ecology of languages. She points to the fact that while European integration had almost no effect on the member states’ language policies, the latter were indeed effected by the global intensification of communication, especially in English, the enhanced use of regional languages due to administrative devolution as well as migration. V. Mamadouh, ‘Dealing with Multiculturalism in the European Union’, Journal of Comparative Policy Analysis: Research and Practice, Vol. 4, 2002, p. 330, cited by Károly, 2008, p. 134.

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6  Enforceable Language Rights in the European Union reduction in genetic diversity leaves mankind less resources to draw upon. Thus, the value of diversity in this sense is based on its utility to human beings. In a similar vein, for the purposes of linguistic diversity, Van Parijs cites a common conviction according to which maintaining linguistic diversity is advantageous, as all languages incorporate a specific knowledge about the surrounding world95 and culture as a way of life allowing for collective experimentation, all for the benefit of mankind.96 As Boran points out, languages may bear scientific value possibly fostering technological advancement as well as aesthetic value, due to their unique way of conveying emotions in the form of art. Both aspects may deem languages public goods worthy of protection.97 A final argument related to the biodiversity jargon and arguments, yet appropriated for the purposes of justifying the claim for linguistic diversity, is the argument that diversity (including linguistic diversity) increases the potential for adaptation and innovation by providing flexibility and creativity.98 Leaving the ambit of utility in the biodiversity discourse, Callicot goes further and proposes that there is an inherent worth, an intrinsic, i.e. non-instrumental value of “nature (or some of nature’s parts)” and that mankind has a moral responsibility to safeguard it.99 Transferring the idea to the field of languages Weinstock quotes Réaume who characterized the intrinsic value of languages as follows: “it is a human accomplishment, and end, in itself, because it is a ‘cultural inheritance’ and a ‘marker of identity.”100 MacPherson also takes the leap from utility to inherent worth and claims: “an ethical position would be to go one step further and recognize [. . .] the intrinsic value of languages [. . .] because they are entangled in the quality of lives of people adapting to places through time”.101 Some authors even assert that linguistic diversity is in fact a precondition for sustaining biodiversity due to the unique knowledge enshrined in the various languages about the

95 “Diversity is an implicit value by virtue of the enhanced biological and cognitive information it avails to future generations”, S. MacPherson, ‘TESOL for Biolinguistic Sustainability: The Ecology of English as a Lingua Mundi’, 20 TESL Canada Journal 2, 2003, p. 5. 96 Van Parijs 2008, pp. 27-28. 97 I. Boran, ‘Global Linguistic Diversity, Public Goods, and the Principle of Fairness’, in: Kymlicka & Patten, 2007, pp. 193-199. 98 Skutnabb-Kangas, 2002, p. 14. 99 J. Baird Callicott, ‘Intrinsic Value in Nature: a Metaethical Analysis’, The Electronic Journal of Analytical Philosophy, Vol. 3, Section 9, Spring 1995. 100 “What would it mean for language to have intrinsic value? It would mean that languages have value independently of the instrumental roles they perform in the lives of their users (or, indeed, non-users). [. . .] Inasmuch as particular languages have intrinsic value, the interests which people have in them cannot be reduced to their various instrumentalities as communicative tools and as ‘contexts of choice’”. Weinstock 2007, p. 254. 101 MacPherson 2003, p. 5. In line with the view of the intrinsic value of linguistic diversity, Blake asserts that “Each language represents a way of viewing the world as well as a unique human achievement; when any language is destroyed, something of great beauty has gone out of the world”. M. Blake, ‘Language Death and Liberal Politics’, in: Kymlicka & Patten 2007, p. 216.

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Petra Lea Láncos speakers’ immediate environment.102 As Boran points out, stipulating moral prescriptions in analogy to the preservation of the environment may yield insights, however, basing normative claims on the assumption of a strong correlation between the two and presenting linguistic diversity as an integral part of biodiversity has yet to be substantiated.103 Based on the foregoing, we may conclude that the burgeoning of the term and concept of biodiversity in public debate has certainly contributed to the fact that: firstly, diversity has become widely thematized and is in itself is recognized as a value (even in spheres unrelated to the ecosystem),104 second, there are arguments for recognizing the value of diversity (and as such, linguistic diversity) irrespective of its utility,105 assuming an intrinsic value thereof and thirdly, the terms and concepts related to biodiversity inform the diversity debate related to the socio-political sphere (status of linguistic communities, preservation, promotion).106 6.4.2.2  Speak for Yourself: Multiculturalism and the Promotion of Language Rights The second strand of diversity concepts is rooted in the notion of the equal dignity of the person as well as the equality of cultural communities. The rise of the political theories of both liberalism and multiculturalism is also a product of the twentieth century: the horrors of World War II led to the codification and universal recognition of human rights and equal dignity as well as the prohibition of discrimination based on race, ethnic origin, culture, etc.107 Although multiculturalism is perceived as a rival theory to liberalism, both are in fact aimed at supporting the recognition of identities and difference based on equality,

102 “So striking is this correspondence between linguistic and biological diversity that these researchers coined a common term: biolinguistic diversity. As with the use of language extinction and death, such terms are needed to shift our perception to appreciate the deep interconnection between language, culture, and biology.” MacPherson 2003, p. 3; for a detailed account on this interdisciplinary approach, see Skutnabb-Kangas 2003, p. 37; Skutnabb-Kangas 2002, pp. 13-14; Boran 2007, p. 192. 103 Boran 2007, p. 193. 104 “There is a degree of social consensus over the notion that diversity is, by and large, a ‘good thing’, albeit perhaps a costly one. This is borne out by frequent examples of official discourse and international treaties extolling the virtues of diversity, or by the fact that the preservation of linguistic diversity is sometimes presented as a policy objective in its own right”, F. Grin, ‘Diversity as Paradigm, Analytical Device and Policy Goal’, in: Kymlicka & Patten 2007, p. 170. This conviction was present already in the nineties: “a basic assumption is that preservation of linguistic and cultural diversity is important”. D. Gorter, ‘Information, Documentation and Research on Bilingual Education for Regional or Minority Languages in the European Union’, Helsinki Citizens’, Assembly of Moldova 1996, p. 21. 105 Weinstock, 2007, p. 253. 106 “Linguistic diversity bears a striking resemblence to environmental utility, suggesting that the type of policy issues that arise in language and in environmental matters are analytically related”, Grin 2007, p. 172. 107 This phenomenon is captured by Arts. 21 and 22 of the ChFR, which prohibit discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation and oblige the Union to respect cultural, religious and linguistic diversity.

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6  Enforceable Language Rights in the European Union albeit from a different perspective and in a different manner. Whereas liberalism stipulates equal citizenship premised on individualism, equality and universalism applying the neutral ‘one size fits all’ principle of non-discrimination,108 multiculturalism contends that the same rule will have a different impact on members of different groups109 and thus leads to unfair results compromising the material equality of the formally equal citizens.110 Kraus suggests that the liberal perception of the neutral state is premised on the view of a culturally homogenous nation-state where diversity is a non-issue.111 In such a setting, speakers of minority/non-official languages are granted the same rights as speakers of majority/official languages – the speakers of the different languages are thus formally equal. However, it is important to see that the effect of a majority/official language on political, economic and cultural life is overwhelming. For example, in order to exercise their political rights in an informed way, minority/non-official language speakers would have to be able to access official or media-spread information in the majority/official language. In the field of economy, it is easy to see that the employment chances of a minority/non-official language speaker shall be lower, especially in the area of white collar jobs where intensive communication skills are required. Finally, although culture is perceived as an expression and necessary element of the identity of a (linguistic) community, cultural events performed in a minority/non-official language shall attract a smaller number of viewers and consequently less, or no private funding. Minority/non-official language speakers are not only ‘forced’ to become multilingual, but must experience the deterioration of their culture and language due to non-use. At the same time, until they become assimilated they can only access politics, ‘higher’ professions and popular cultural events at a greater effort and cost. As Grin observes: “Once we recognize that language serves these multiple

108 Scholars of linguistic rights theories stress that even liberal states could not remain neutral in the face of a multilingual society – the introduction of an official language always results in discrimination. Archiburgi 2005, p. 540. S. Vertovec & S. Wessendorf, ‘Migration and Cultural, Religious and Linguistic Diversity in Europe: An overview of issues and trends’, International Migration, Integration and Social Cohesion (­IMISCOE) 2004, p. 30. 109 B. Barry, ‘Liberalism and Multiculturalism’, 4 Ethical Perspectives 2, 1997, p. 4; U. Wattal, ‘Understanding “Spanglish” and “Flemch”: A Comparative Analysis of American and Belgian Language Politics’, 22 ­Macalester International, 2009, p. 229. 110 “Formal equality means equality in the form of the law. It requires that the law treat persons similarly who are situated alike. [. . .] More recently, this notion of formal equality became associated with classical liberalism. This political philosophy presumes that individuals are free to compete with each other and that all can make their own choices. [. . .] Material equality encompasses both formal equality and economic, social, and cultural equality. As such, the notion of material equality acknowledges the importance of both personal and environmental barriers that inhibit the equal participation of certain members of groups in society. In the material equality perspective, society is obliged to modify those differences that deny or impair the right of each individual to be an equal member of society.” A. Hendriks, ‘Disabled Persons and their Right to Equal Treatment: Allowing Differentiation While Ending Discrimination’, 1 Health and Human Rights 2, 1995, pp. 157-159. 111 Kraus 2008, p. 93.

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Petra Lea Láncos functions, the liberal strategy of trivializing language issues as simply technical questions of communicative reach will not work.”112 It may be concluded, that language actually spans the whole socio-political and even economic reality and thus although speakers of minority languages are formally equal to the members of the majority population, without active support from the state, the opportunities enjoyed in the economic, social and cultural sphere will be different to the detriment of the speakers of the minority/non-official languages.113 Liberalism and its requirement of non-discrimination thus fails to achieve material equality as in the equality of opportunities of citizens, for the remedy of which multiculturalism proposes special rights to express the minority identity and to promote participation.114

6.5 The EU Legal Context: Protecting Linguistic Diversity through an Instrumental Perspective of Language As we have seen above, linguistic diversity may be considered a value worthy of protection based on its utility or its intrinsic nature as well as equal dignity or equal opportunities of the different language speakers. Herein lay the justifications of the normative guarantees for linguistic diversity. The protection and promotion of languages and linguistic diversity may be achieved through various language policy means. In the European Union, safeguarding linguistic diversity is based on a negative approach of non-interference and respect for linguistic diversity and a positive, active promotion of multilingualism through language learning. As outlined above, the promotion of multilingualism actually backlashes upon the project of protecting linguistic diversity, because the more languages Union speakers have in common, the more linguistic diversity is reduced (not to mention that in practice probability-sensitive language learning favours learning English as a foreign language). As a result, multilingualism policy should be separated from the efforts of safeguarding linguistic diversity, as it furthers different aims: it promotes the benefits related to enhanced and efficient communication between the speakers of the different member states. At the same time, safeguarding linguistic diversity must rely on a possible preservation of ‘endangered’ vernaculars, the negative approach of non-interference and language rights guaranteed by the Union.

112 Kymlicka & Grin 2003, p. 11. 113 As Kraus remarks: as language serves as an instrument to express the individual identities, the state “may pretend to be ‘blind’ (regarding religion, for instance), yet it cannot possibly behave like a ‘deaf-mute’ (when it comes to language), Kraus 2008, p. 84. 114 J.E. Fossum, ‘Identity-Politics in the European Union’, ARENA Working Papers, WP 01/17 (2001), at note 19 (last accessed 18 December 2011).

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6  Enforceable Language Rights in the European Union 6.5.1   Legal Framework of EU Language Policy 6.5.1.1  Non-Enforceable Goals and Values The primary law of the European Union related to linguistic diversity includes provisions which are non-enforceable and may be deemed as goals, values and constitutional aspirations. These provisions can also be seen as horizontal principles which are to be taken into consideration when framing EU legislation also in other areas. The Protection and Promotion of Linguistic Diversity According to Article 3 paragraph 3 TEU: “(The Union) shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced.” Based on its placement the provision may be interpreted as a sort of constitutional aspiration with no enforceable rights attached to it. As such, it is merely an instrument guiding the interpretation of the Treaty. At the same time, it may also be interpreted as a positive obligation of the Union to actively endorse the circumstances facilitating the existence of the vast varieties of languages. Thus, linguistic diversity may be perceived as a ‘constitutional value’115 in itself, which secures the context for both language rights and cultural rights.116 In this sense, the Union is obliged to protect and endorse linguistic diversity in the framework of its other goals and values and within the constraints of its institutional and financial possibilities. Such an active stance of the Union is also supported by the wording of the Treaty which speaks of safeguarding and enhancing.117 Positive measures aiming at protecting and enhancing linguistic diversity may be based on Article 167 para. 1 TFEU, regulating the cultural policy legislation of the EU. Based on its cultural competence the Union has implemented the Culture 2000 and Cultural Programme, which also contained instruments related to the “protection and promotion of regional and minority languages and cultures”.118 The Union also has a negative obligation to respect linguistic diversity: according to the horizontal principle in Article 167 paragraph 4, the Union is to take into account cultural considerations in the course of all of its activities. Thus, the EU must examine the impact of its activities on culture in general and linguistic diversity in particular.119 If a planned measure should be detrimental to linguistic diversity, it is not to be enacted.

115 B. de Witte, ‘The protection of linguistic diversity through provisions of the EU Charter other than Art. 22’, in: Arzoz 2008, p. 177. 116 G. Halmai, E. Polgári & P. Sólyom, ‘Távol Európától – Az alkotmánybíróság a bejegyzett élettársi kapcsolatról’, 52 Élet és Irodalom 21, 2009, . 117 Emphasis added. 118 De Witte 2008, p. 183. 119 Gabriel N. Toggenburg, ‘A Rough Orientation Through a Delicate Relationship: The European Union’s Endeavours for (its) Minorities’, 4 EIoP 16, 2000, pp. 11-12.

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Petra Lea Láncos The important question regards the material scope of the provision, i.e. which languages are to be protected and promoted by the EU? As there are no restrictive provisions, the widest possible interpretation of the material scope of the provision may also be asserted. This means, that possibly even immigrant languages must be protected (and promoted) by the EU. However, a more plausible solution is that the material scope covers official, regional and minority languages, as these are the only languages explicitly or implicitly referred to in the Treaty. Promotion of Multilingualism Promoting language learning and multilingualism is an important part of the language policy of the European Union.120 Speaking many languages “can strengthen life chances of citizens: it may increase their employability, facilitate access to services and rights and [. . .] enhanced intercultural dialogue and social cohesion.”121 Here again, it must be pointed out that multilingualism actually undermines linguistic diversity. For one, those wishing to enhance their employability shall typically learn the privileged languages English, French and German. At the same time, the more languages people have in common, the more the linguistic diversity (evenness) of Europe is reduced.122 Thus, multilingualism cannot be deemed as a tool for increasing linguistic diversity. 6.5.1.2   Enforceable Rights The provisions referred to below give rise to enforceable language rights, however, the material scope, that is the languages covered by these provisions as well as their personal scope vary. Information Rights Article 41 paragraph 4 of the Charter of Fundamental Rights (hereinafter ‘ChFR’) provides that “everyone has the right to turn to the institutions in writing in any of the languages of the Treaties and to receive an answer in same language.” This language right is thus actually instrumental to exercising information rights related to EU governance and administration in order to enable Union citizens to fully participate in the democratic life of the Union. Although codified under the Title ‘Citizens’ rights’, according to the wording

120 See e.g., “Promoting Language Learning and Linguistic Diversity: An Action Plan 2004-2006”, Brussels, 24 July 2003 COM(2003) 449 final. On p. 5 it reads: “The range of foreign languages spoken by Europeans is narrow, being limited mainly to English, French, German, and Spanish. Learning one lingua franca alone is not enough. Every European citizen should have meaningful communicative competence in at least two other languages in addition to his or her mother tongue.” 121 COM(2008) 566 final, 3 of 18 September 2008, Multilingualism: an Asset for Europe and a Shared Commitment Brussels (emphasis added) 122 Van Parijs 2008, p. 20.

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6  Enforceable Language Rights in the European Union of the provision (‘everyone has the right’) third country nationals are not excluded from exercising this right. However, there are serious constraints to this right, since it may only be enforced in the languages of the Treaties, that is, the official languages, excluding minority, regional and immigrant languages. Further, it relates only to correspondence with the institutions of the Union, excluding offices, bodies and agencies which may well bring decisions impacting on interests, rights and duties of Union citizens and third country national. The Prohibition of Discrimination Based on Language Article 21 paragraph 1 of the Charter of Fundamental Rights explicitly prohibits discrimination based on language. This new provision affords protection to not only Union citizens but all persons falling under the personal scope of EU law. This means, that even speakers of non-official, minority and immigrant languages may enforce their right to non-­discrimination under EU law. However, linguistic discrimination may be justified by overriding imperatives if these are applied in a proportionate manner. What is interesting that for example racial discrimination may hardly be justified, but the same does not hold true for discrimination based on language. Language discrimination may be justified based on overriding reasons relating to the public interest, thus, there is a potential threat of masking racial discrimination against those racial or ethnic groups which are simultaneously language groups (Roma, Jews) in the justifiable cover of language discrimination. The (Possible) Prohibition of Interference in Language Use by Members of Minority Groups According to Article 22 of the Charter of Fundamental Rights, “the Union shall respect cultural, religious and linguistic diversity”. Based on the travaux preparatoires, the antecedents of the codification and the context of the provision, numerous authors regard this as a per se minority protection clause.123 It protects the core characteristics which define minorities, at the same time it does not explicitly refer to minorities which made it possible for member states negating minority rights to accept the clause.124 Should we accept this interpretation, it entails that the provision obliges the Union to refrain from interfering in the most defining elements expressing the belonging to a minority: culture, religion and language. At the same time, there are also constraints to this right. Article 22 of the Charter creates an enforceable, albeit negative right, based on which the Union is only obliged to non-interference, but has no obligation to take positive action to promote m ­ inority languages. This status negativus is an individual right, as may be inferred from Article 2 TEU, which only mentions “rights of persons belonging to minorities”, disregarding any 123 X. Arzoz, ‘The protection of linguistic diversity through Article 22 of the Charter of Fundamental Rights’, in: Arzoz 2008, pp. 147-152. 124 Ibid., pp. 149, 152, 160.

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Petra Lea Láncos possible collective rights. Finally, only “persons belonging to minorities” may invoke this right – while the term ‘minority’ as well as its scope is largely left unclear. Are those official language speakers to be qualified as persons belonging to a minority, who are nationals of a member state where the official language differs from their mother tongue (for example German speakers in Hungary)? However, if the provision is of general scope, then that would mean that the obligations of the Union under this provision are identical to the obligation of protecting linguistic diversity under Article 3 paragraph 3 TEU.

6.5.2   Conceptualizing Instrumental Language Rights in the European Union In the legal context of the European Union, one is hard pushed to find enforceable guarantees of linguistic diversity. For example, Article 3 paragraph 3 of the TEU declares, that the Union shall respect its rich cultural and linguistic diversity and Article 22 ChFR with its almost identical wording may be appropriately deemed a constitutional aspiration rather than an enforceable right. However, individual ‘language rights’ are enshrined in primary law which do contribute to preserving and respecting linguistic diversity in the Union. Such examples include the right to apply to certain institutions and bodies of the Union and to receive an answer from these in any official language of the EU (Art. 24 TFEU, or with an almost identical wording: Art. 41 para 4 ChFR) or the prohibition of discrimination based on language (Art. 21 ChFR). However, such language rights vary highly as regards their material scope and the status of the speakers protected. This results in a patchwork-like quilt of linguistic guarantees without an overarching concept and adequate protection in all language situations where legitimate concerns for the protection of the speakers’ rights arise. A seemingly straightforward perspective on the conceptualization of the protection of linguistic diversity could be based on the intrinsic value of the languages in their abundance and variety. Such an approach would however blur the exact limits of the EU’s responsibilities in the ambit of language protection and promotion and would thus render the scope of its potential obligations boundless – and therefore also unenforceable. The intrinsic value inherent in the diversity of languages is now well reflected in the obligation of the Union to respect its linguistic diversity, which, by its nature is much rather a ‘constitutional aspiration’ of the Union contained in the ChFR as well as a principle of horizontal nature guiding EU legislation, than an enforceable linguistic right. Consequently, a perspective of the intrinsic value of linguistic diversity does not yield insights as to which concrete rights may be enforced in order to secure individual language use under EU law. A further point of departure for the protection of linguistic diversity could be based on an instrumental view of languages, or with other words, stipulating the right related to language use as a precondition for exercising other rights laid down in primary law. 118

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6  Enforceable Language Rights in the European Union As Phillipson, Rannut and Skutnabb-Kangas point out, “people who are deprived of [linguistic human rights] may thereby be prevented from enjoying other human rights, including fair political representation, a fair trial, access to education, access to information and freedom of speech, and maintenance of their cultural heritage”.125 Such a perspective deems language rights auxiliary rights facilitating the enforcement of other, in the present case: human rights. This way, without having to elaborate whether language rights are human rights or not, their instrumentality for the exercise of other, codified human rights may be affirmed. Thus, for the scope of EU law certain rights contained in the founding treaties as well as the Charter of Fundamental Rights may be the enforceable rights to which language rights may adhere. In this regard it is important to note, that exercising rights in a language different from the mother tongue makes the exercise of such rights impossible or extremely difficult. According to the Commission publication Speaking for Europe, the “EU ensures that there is no discrimination between citizens whose languages are spoken by a large number of people and others using less widely spoken ones.”126 Around 10% of the Union citizens speak a non-official language of the Union.127 Moreover, as we have seen above, the use of even official languages is restricted in practice, putting not only non-official language speakers, but potentially also speakers of non-privileged official languages at a disadvantage for being forced to exercise certain rights under EU law in another language. As such, they could be excluded from exercising their rights under the Charter of Fundamental Rights, especially those contained under the heading ‘Freedoms’ comprising among others, basic communication rights and ‘Citizen’s Rights’ related to political participation.128 This way, an indivisible connection between language and the exercise of human rights may be struck, obligating the European Union to protect and promote language use as a concomitant of the enforcement of human rights by Union citizens. As Schilling puts it: “autonomy means a person’s authority to dispose of her own legal sphere, especially the ability to protect her interests by speech acts. [. . .] [I]t must be considered an inadmissible violation of a person’s human dignity to forbid her to use the language(s) she knows [. . .] incapacitating her to protect her interests other than by raw force.”129

125 Phillipson, Rannut & Skutnabb-Kangas 1995, p. 2. 126 p. 3 (last accessed 18 December 2011). 127 “Almost 10% of the EU-citizens speak a minority language, which means that in some very real aspects of their lives they are in a secondary position. In other words they cannot, by definition, be regarded as fully equal citizens. This is a serious shortcoming in the practice of European citizenship.” H. Lax, ‘Minority Languages in Europe – Importance and Future’, speech – Brussels (15 October 2008), p. 4. 128 As Cunningham points out it is “vital to democracy that Community legislation should be available to Europe’s citizens in their own languages, as a guarantee of equality before the law. Ignorance of law is no defence so the law cannot be imposed on anyone in an incomprehensible foreign language”. K. Cunningham, ‘Translating for a Larger Union – Can We Cope with more than 11 Languages?’, 2 Terminologie et Traduction, 2001, p. 24. 129 Schilling 2008, pp. 1227-1228.

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Petra Lea Láncos The perspective of limiting the commitment of the European Union to respect linguistic diversity to a negative approach of non-intervention and the guarantee of a short list of enforceable rights is very restricted. Its appeal lies in the fact that this perspective lays out the precise obligations of the European Union, rendering efforts in the field of safeguarding linguistic diversity more transparent. Also, the personal scope of such rights would encompass all Union citizens with languages ranging from official to minority/regional and immigrant languages in the EU. The disadvantage of limiting the EU’s responsibility for safeguarding linguistic diversity to such a confined field of activity is that it does nothing for the active promotion of linguistic diversity, language use and third country nationals language rights. At the same time, it must be pointed out that the status of non-official or non-privileged language speakers and the protection of linguistic diversity do not even reach the level of protection outlined above.

6.6 Conclusions With the Lisbon amendments the European Union is more than ever committed to the protection and promotion of linguistic diversity. There are serious reasons for such an engagement of the Union: although the language regime employed by the EU is far more permissive than those of international organizations, and indeed, of most member states, the speakers of autochthonous or immigrant minority languages and even certain official languages perceive the forces of European integration as a threat to linguistic diversity in general and the flowering and utility of their vernaculars in particular. The intensifying diversity debate in the last century conceived several concepts of diversity which also informed the discussion of linguistic diversity and language rights. Such concepts include the equal dignity of Union citizens as well as the instrumental perspective on languages which may serve as a starting point for determining the scope of the obligations of the European Union related to safeguarding linguistic diversity. One possible solution could be the protection of linguistic diversity with reference to civil rights and fundamental rights contained in the founding treaties and the Charter of Fundamental Rights presupposing concomitant language rights as auxiliary rights for the enforcement of fundamental rights and general rights of Union citizens. Although this perspective leads to rather limited obligations of the Union, the reality of the protection of linguistic diversity does not even reach this slim target.

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Part II Forum: The Sólyom Case

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7

Hungary versus Slovakia – EU Membership versus Sovereign Statehood

Ernő Várnay* 7.1 Introduction On 21 August 2009, a unique incident occurred in the history of the European Communities (European Union – hereinafter ‘EU’). A member state – the Slovak Republic – ­prohibited the entry of the Head of State of another member state (Republic of Hungary) to its territory. Hungary considered that this measure was in breach of EU law regarding the free movement of Union citizens, and brought an action before the Court of Justice of the European Union seeking the declaration of infringement.1 This action added to the very short list of cases brought under Article 259 of the Treaty on the Functioning of the European Union (hereinafter ‘TFEU’).2 The Court was bound to make a choice between the two qualities of President Sólyom, that of the Head of State – representative of a sovereign state in international relations – and that of a Union citizen – a status which is intended to be the fundamental status of nationals of the member states. The Court, without further hesitation, opted for the former, placing the relevant rules of the customary international law above the relevant Treaty provision. It seems obvious that the Commission and the Court do not wish to encourage the member states to bring their disputes of strong historical and political flavour to the EU judicial instances. The present article will present the facts of the case following the Opinion of the Advocate General (AG) and the judgment. (1) Next, it will summarize the arguments of the parties, the Advocate General and the Court concerning the first head of complaint (i.e. the alleged violation of the right to free movement of Union citizens) which actually regards

* Head of Department of European and International Law, University of Debrecen, Chair Jean Monnet in European Law, Graduated in Law (Szeged), Economics (Budapest) and European Studies (Nancy). 1 Judgment of 16 October 2012 in Case C-364/10, Hungary v. Slovakia (not yet published), hereinafter referred to as judgment. 2 Art. 259(1) TFEU provides: “A Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may bring the matter before the Court of Justice of the European Union.” Under this article before bringing action, the member state shall bring the matter before the Commission, which shall deliver a reasoned opinion after each state had the opportunity to submit its own case and its observations on the other party’s case both orally and in writing.

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Ernő Várnay the possible conflict of international law and EU primary and secondary law. (2) The third section offers some comments on the possible motives and consequences of the case.

7.2 Facts of the Dispute Upon the invitation of an association based in Slovakia, Mr László Sólyom, the President of Hungary, was scheduled to visit Komárno (Slovakia) on 21 August 2009 to participate in the unveiling ceremony of a statue of Saint Stephen, the founder and first king of the Hungarian state. Following several diplomatic exchanges between the two member states regarding the planned visit, the highest representatives of the Slovak Republic, the President of the Republic, the Prime Minister and the President of the Parliament adopted a joint declaration in which they indicated that President Sólyom’s visit was considered inappropriate, having regard in particular to the fact that he had not expressed any desire to meet Slovak dignitaries and that the date of the planned visit, 21 August was particularly sensitive.3 Following further diplomatic contact, President Sólyom stated that he wished the visit to go ahead. By note verbale of 21 August 2009, the Ministry of Foreign Affairs of the Slovak Republic informed the Ambassador of Hungary in Bratislava (Slovakia) that the Slovak authorities had decided to refuse President Sólyom entry into the territory of the Slovak Republic on that date for security reasons, on the basis of Directive 2004/384 as well as provisions of domestic law regarding the stay of foreign nationals and the national police.5 President Sólyom was informed of the terms of that note while en route to Slovakia; he acknowledged receipt at the border and refrained from entering Slovak territory. By note of 24 August 2009, the Hungarian authorities argued that Directive 2004/38 could not form a valid legal basis for justifying the refusal. They also found that insufficient reasons were given for the decision to refuse access, therefore, the measure was in breach of EU law. The Slovak authorities answered the note, stating that the application of Directive 2004/38 was the ‘last chance’ to stop President Sólyom entering the territory of the Slovak Republic, and that the Slovak authorities did not contravene EU law in any way.

3 On 21 August 1968, the Warsaw Pact troops, which included Hungarian troops, invaded Czechoslovakia. Perhaps it is worth noting at the time in question Hungary formed part of the Soviet bloc with extremely limited freedom of action in military affairs. We do not think that the invasion left any serious effect on the Slovak-Hungarian relations. 4 EP and Council Directive of 29 April 2004, OJ 2004 L 158/77. 5 Opinion of Advocate General Bot delivered on 6 March 2012 (Hereinafter Opinion), para. 7.

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7  Hungary versus Slovakia – EU Membership versus Sovereign Statehood The Hungarian Minister for Foreign Affairs sent a letter to Mr Barrot, Vice President of the European Commission, seeking the Commission’s opinion on the possible breach of EU law by the Slovak Republic. In his reply Mr Barrot acknowledged that, in accordance with Directive 2004/38, any restriction of the freedom of movement must observe the principle of proportionality, must be based on the personal conduct of the individual concerned, and that the person concerned must be notified of that restriction and given a full, precise explanation of the reasons. He also stated that it was for the national courts in the first place to consider whether the rules of Directive 2004/38 had been properly applied. He emphasized that all possible steps must be taken in order to avoid the recurrence of such situations and stated that he was confident that a constructive bilateral dialogue between the two member states could resolve the dispute. On 12 October 2009, the Hungarian Minister for Foreign Affairs, acting on behalf of Hungary, sent a complaint to the President of the Commission, requesting that the Commission examine whether it was appropriate to initiate infringement proceedings against the Slovak Republic under Article 258 TFEU for violation of Article 21 TFEU and Directive 2004/38. By letter of 11 December 2009, the Commission confirmed that “Union citizens are entitled to move and reside freely within the territory of the Member States pursuant to Article 21 TFEU and Directive 2004/38”. However, the Commission pointed out that “under international law, the Member States reserve the right to control the access of a foreign Head of State to their territory, regardless of whether that Head of State is a Union citizen”. In its opinion, the member states of the European Union continue to arrange official visits through bilateral political channels, thus, this is not an area where EU law applies. In the Commission’s opinion, while a Head of State may indeed decide to visit another member state as a private individual under Article 21 TFEU and Directive 2004/38, it is evident from the documents attached to the complaint of the Hungarian Minister for Foreign Affairs that Hungary and the Slovak Republic disagree regarding the private or official nature of the proposed visit. The Commission considered, therefore, that it was not in a position to find that the Slovak Republic had failed to observe the provisions of EU law on the free movement of Union citizens, even if the Slovak Republic had been wrong, in its note verbale of 21 August 2009, to rely on Directive 2004/38 and the legislation adopted for its implementation under national law. On 30 March 2010, Hungary brought the matter before the Commission in accordance with Article 259 TFEU. In its reasoned opinion the Commission considered that Article 21(1) TFEU and Directive 2004/38 do not apply to visits made by the head of one member state to the territory of another member state and that, under those circumstances, the alleged infringement is unfounded.

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Ernő Várnay On 8 July 2010, Hungary brought action seeking the declaration of the infringement of EU law by the Slovak Republic.

7.3 Before the Court . . . 7.3.1    The Application By its application, Hungary requested the Court to: (1) find that the Slovak Republic failed to fulfil its obligations under Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states, as well as Article 21(1) TFEU in that, relying on that directive, but failing to respect its provisions, it did not allow the President of Hungary, Mr Sólyom, to enter its territory; (2) declare that the position of the Slovak Republic, which it still maintained at the time the action was brought, namely, that it is entitled under Directive 2004/38 to prohibit the entry to the territory of the Slovak Republic of a representative of Hungary, such as the President of the latter State, thereby confirming that such an unlawful attitude may recur, conflicts with the law of the European Union, in particular Article 3(2) of the Treaty on the European Union (hereinafter ‘TEU’) and Article 21(1) TFEU; (3) declare that the Slovak Republic applied European Union law wrongfully in that its authorities did not allow President Sólyom access to its territory on 21 August 2009; and (4) in the event that a specific provision of international law may restrict the personal scope of Directive 2004/38, to define the extent and scope of such derogations. The Slovak Republic contended that the Court should dismiss the action. The Commission was given leave to intervene in support of the form of order sought by the Slovak Republic. The Slovak Republic first of all questioned the Court’s jurisdiction to rule on the action. The Court – concurring with the position advanced by the appellant, the Commission and the Advocate General – rejected this plea.6 The second and the fourth heads of complaint were rejected by the Court – also in line with the Opinion of the Advocate General – as inadmissible in the framework of the procedure at hand.7

6 Judgment paras 24-26. 7 Judgment paras 67-71.

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7  Hungary versus Slovakia – EU Membership versus Sovereign Statehood The third head of complaint was also deemed unfounded on the basis of a rather formalistic reasoning.8 The legal reasoning of the parties, the Advocate General and the Court were opposed actually only regarding the first head of complaint. Due to the fact that the most important questions were raised by this complaint, in the following we will limit ourselves to the analysis of this complaint.

7.3.2   The Law Applicable to the Case – EU Law or International Law? 7.3.2.1  Arguments of Hungary Since the main argument of the Commission – followed by Slovakia – was that the Slovak reliance on Directive 2004/38 was an ‘error’ ‘unfortunate wording’, ‘wrong’ ‘inappropriate’, ‘pure reference’9) and that the law applicable to the case was not EU law but international law, the legal reasoning focused on this point. The Hungarian Government claimed that Directive 2004/38 applies to all citizens of the Union, including Heads of State, and to all kinds of visits, that is to say, both official and private. There are no rules of international law providing for restrictions on the entering of Heads of States into a foreign state. In view of the case law of the Court according to which the Union legislature must respect international law,10 if such rules existed, Directive 2004/38 would have taken them into account, as the EU legislator did, for example, in Article 3(2)(f) of Council Directive 2003/109/EC concerning the status of third country nationals who are long-term residents.11 In any event, even assuming that such rules exist, Hungary considers that their application cannot compromise the effectiveness of EU legislation, such as Directive 2004/38, by introducing a derogation with regard to its personal scope. The Court declared that “the provisions of an agreement concluded prior to the entry into force of the Treaty or prior to a Member State’s accession cannot be relied on in intra-Community relations”.12 That opinion is equally valid with regard to the rules of customary international law. The right of every citizen of the Union to move freely within the European Union may be made subject only to the limitations specified by Directive 2004/38. Those limitations may be applied only when the substantive and procedural conditions laid down in said directive have been satisfied. The restrictive measures – invoked by Slovakia – based on public policy

8 Judgment paras 58-61. 9 Wording used by the Commission, Slovakia and the AG and the Court respectively. 10 In this connection Hungary cited Case C-286/90, Poulsen and Diva Navigation [1992] ECR I-6019, para. 9 and Case C-162/96, Racke [1998] ECR I-3655, para. 45. 11 Council Directive of 25 November 2003, OJ 2004 L 16/44. 12 Hungary relied on Joined Cases C-241/91 P and C-242/91 P RTE and ITP v. Commission [1995] ECR I-743, para. 84 and Case C-301/08, Bogiatzi [2009] ECR I-10185, para. 19.

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Ernő Várnay or public security may be applied only when based exclusively on the personal conduct of the individual concerned and if the conduct of the person concerned represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. The defendant failed to satisfy both the substantive and the procedural conditions set forth in Directive 2004/38. Mr Sólyom did not represent any threat to any fundamental interest of society and, in any event, it was disproportionate to refuse access.13 No notification was sent to Mr Sólyom to inform him of the grounds for the decision in question and of the remedies available to him. 7.3.2.2  Arguments of Slovakia The Slovak Republic first of all states that the Hungarian President’s planned visit was not a private visit of a Union citizen but the visit of a Head of State to the territory of another member state. Consequently, the question is whether EU law, and in particular Article 21 TFEU and Directive 2004/38 are applicable to Heads of State of the member states. In view of the role of Heads of State, their movements within the European Union fall within the sphere of diplomatic relations between the member states, as governed by customary international law and by international conventions. The principle of the conferral of competences under Article 3 TEU, Article 4(1) TEU and Article 5 TEU excludes bilateral diplomatic relations between member states from the ambit of EU law. That, Slovakia argues, is confirmed, first of all, by the judgment rendered in Commission v. Belgium,14 according to which the member states retain the right to regulate their diplomatic relations even after joining the European Union. Moreover, there is no provision in the Treaties that expressly confers competence on the European Union to regulate diplomatic relations between member states.15 As the sovereignty of the state which he represents is vested in the Head of State, he may enter another sovereign state only with the latter’s knowledge and consent. In that regard, the Slovak Republic points out that Article 4(2) TEU provides that “the Union shall respect the equality of Member States before the Treaties as well as their national identities” and that the principle of free movement may not, under any circumstances, alter the scope of the founding treaty or the provisions of secondary legislation. The fact that Directive 2004/38 does not provide for any derogation concerning the movement of Heads of State does not mean that that directive applies to them, the application of EU law to Heads of State being excluded by the Treaties themselves. The comparison

13 This is supported by the declarations of the Slovak Ministry of Foreign Affairs and the Slovak police according to which they will ensure the personal safety of Mr Sólyom. . 14 Case C-437/04, Commission v. Belgium [2007] ECR I-2513. 15 Judgment paras 33-34.

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7  Hungary versus Slovakia – EU Membership versus Sovereign Statehood drawn between Directive 2004/38 and Directive 2003/109 cannot be upheld, in so far as those two texts deal with different subjects, the latter related to the better integration of immigrants lawfully present in a state. The judgments in Poulsen and Diva Navigation and Racke16 do not give rise to any obligation requiring the Union legislature to indicate, for any act of secondary legislation, the material and personal scope of the Treaties in the context of international law. The judgments referred to by Hungary concerning the inapplicability of the customary law in relations between member states17 are relevant only in case the competence of the Union is not contested, and that is precisely what is happening here. If it were to be accepted that EU law applied under circumstances such as those of the present case, the Head of State of one member state would enjoy privileges based on that law in another member state, while at the same time being protected by the immunity provided for by international law against the applicability of administrative decisions taken by that state under EU law. The consequence would be that a member state could neither deny such a person entry into its territory nor, in view of his immunities, subsequently expel him. Even assuming that EU law is applicable under the circumstances of the present case, the Slovak Republic denies having applied that law, and in particular Directive 2004/38. In this connection, it takes the view that the note verbale of 21 August 2009 containing the reference to Directive 2004/38 formed part of the diplomatic exchanges, and did not therefore constitute a ‘decision’ within the meaning of that directive. Moreover, the note in question was not written by a police officer in the border control service, but by the Ministry of Foreign Affairs, that is to say, a body which clearly does not have the power to adopt a decision. The note was not addressed to Mr Sólyom, it was sent by diplomatic channels to Hungary. The unfortunate wording and the reference to Directive 2004/38 in that note do not determine the ratione materiae of that directive for the present case. 7.3.3   Opinion of Advocate General Yves Bot Basically, the Advocate General shares the view of the Slovak Republic (and the Commission). First he deems the planned visit as ‘public in nature’,18 falling within the scope of diplomatic relations. As the Treaties are silent on the question of access for Heads of State 16 Case C-286/90, Poulsen and Diva Navigation [1992] ECR I-6019 and in Case C-162/96, Racke [1998] ECR I-3655. 17 Joined Cases C-241/91 P and C-242/91 P RTE and ITP v. Commission [1995] ECR I-743 and Case C-301/08, Bogiatzi [2009] ECR I-10185. 18 Opinion para. 48. We note that the justification of this qualification “the Slovak authorities had been notified several times of this visit through diplomatic channels” is not particularly convincing because the host state may be notified in diplomatic channels even in case of a private visit planned incognito. A. Watts, The legal position in international law of the heads of states, heads of governments and foreign ministers, Vol. 247, Martinus Nijhoff 1994, Heads of States pp. 21-96, at p. 75.

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Ernő Várnay to the territory of member states, in accordance with the principle of conferral this is a competence reserved for the member states. The judgment in Commission v. Belgium19 also supports the view that the bilateral relations between member states remain within the purview of the member states, in accordance with international law. His conclusion: [. . .] the status of the highest representative of the State, which is that of Head of State, and the principle of the sovereign equality of States militate in favour of the opposite proposition to that supported by Hungary, namely, that visits by Heads of State within the Member States of the Union depend on the consent of the host State and the detailed conditions defined by the latter within the framework of its competence, and cannot be understood in terms of freedom of movement.20 A unique element of the Advocate General’s argumentation is that it does not exclude the possibility of exercising diplomatic competence in a manner incompatible with the Treaties. Nevertheless, in his view only a situation of persistent paralysis in diplomatic relations between two Member States, contrary to their commitment to maintain good-neighbourly relations consubstantial with their decision to join the Union, would be covered by EU law.21

7.3.4    The Judgment The Court remains silent on the principle of conferral. It does not deal with the question of the public or private nature of the planned visit. First, it recalls that “citizenship of the Union is intended to be the fundamental status of nationals of the Member States”, and Article 20 TFEU, which confers the status of citizen of the Union on every person holding the nationality of a member state. Since Mr Sólyom is of Hungarian nationality, he unquestionably enjoys that status.22 The primary and individual right to move and reside

19 Case C-437/04, Commission v. Belgium [2007] ECR I -2513. 20 Opinion para. 57. Concerning the necessary consent of the host state the Advocate General refers to Art. 2 of the 1961 Vienna Convention, Art. 2(1) and (2) of the Vienna Convention of 24 April 1963 on Consular Relations and Arts. 1(a), 2 to 6 and 18 of the Convention on Special Missions. 21 The AG refers to the preamble of the TEU “an ever closer union among the peoples of Europe”. For him would constitute a barrier to the attainment of the essential objectives of the Union, including the aim of promoting peace and to the loyalty clause (last para. of Art. 4(3) TEU), according to which the member states must refrain from any measure that could jeopardize the attainment of the Union’s objectives. 22 Judgment paras 40-42.

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7  Hungary versus Slovakia – EU Membership versus Sovereign Statehood freely within the territory of the member states conferred on each citizen of the Union under Article 21 TFEU is subject to the limitations and restrictions laid down by the Treaties and the measures adopted for their implementation.23 After these ‘required elements’, in the decisive paragraph 44 of its judgment the Court turns to the real starting point of its argumentation: Referring to its own case law in Racke24 and Kadi,25 it states that EU law must be interpreted in the light of the relevant rules of international law, since international law is part of the European Union legal order and is binding on the institutions. Consequently the fundamental question is whether, as the Slovak Republic claims, the fact that Mr Sólyom, while a Union citizen, was carrying out, at the material time, the duties of the ­Hungarian Head of State is liable to constitute a limitation, on the basis of international law, on the application of the right of free movement conferred on him by Article 21 TFEU.26 The answer is ‘yes’ without any qualification. The argumentation is very close to that of Slovakia and the Advocate General. On the basis of customary rules of general international law and those of multilateral agreements,27 the Head of State enjoys a particular status in international relations which entails, inter alia, privileges and immunities. The presence of a Head of State on the territory of another state imposes on that latter state the obligation to guarantee the protection of the person who carries out that duty, irrespective of the capacity in which his stay is effected. The status of Head of State therefore has a specific character, resulting from the fact that it is governed by international law, with the consequence that the conduct of such a person, such as that person’s presence in another state, comes under that law, in particular the law governing diplomatic relations. Such a specific character is capable of distinguishing the person who

23 The Court refers to its recent judgments in Lassal and in McCarthy: Case C-162/09, Lassal [2010] ECR I-9217, para. 29, and Case C-434/09 McCarthy [2011] Not yet published. 24 Cited supra note 15. 25 Racke, paras 45-46, and Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat International Foundation v. Council and Commission [2008] ECR I-6351, para. 291. 26 Judgment para. 45. 27 As rule of multilateral agreement the Court refers to Art. 1 of the New York Convention of 14 December 1973 on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, states, inter alia, that every Head of State, while on the territory of a foreign state, enjoys that protection. Judgment para. 47.

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Ernő Várnay enjoys that status from all other Union citizens, with the result that person’s access to the territory of another member state is not governed by the same conditions as those applicable to other citizens. The fact that a Union citizen performs the duties of a Head of State is such as to justify a limitation, based on international law, to the exercise of the right of free movement conferred on that person by Article 21 TFEU. The conclusion: In the circumstances of the present case, neither Article 21 TFEU nor, a fortiori, Directive 2004/38 obliged the Slovak Republic to guarantee access to its territory to the President of Hungary.28 This argumentation does not touch – even incidentally – upon the relationship with the EU Treaties or the secondary law of the EU. The status of Head of State excludes the applicability of the law governing the citizenship of the Union. Consequently the Court rejected the first head of complaint as unfounded. As none of the heads of complaint raised by Hungary had been upheld, the action was dismissed in its entirety.

7.4 Comments 7.4.1   A Lost Case from the Outset? The case was génant for the Union and for the Court of Justice in particular. One member state of the European Union prohibits the entry of the Head of State of another. It is a strange and unforeseen event. The parties in a contradictory procedure before the Court are member states. This would suffice to qualify the case as unusual. The Court delivered a judgment under the Article 259 TFEU procedure – “vestige des ‘racines internationales’ de la Communauté”29 – only three times as of yet.30 The highly political nature of the case is evident from the facts presented in the framework of the procedure (several politicians made statements before and after the incident) and was clear from the arguments presented in the action.31 Such a case occurred only once before the Court of Justice, namely in Spain v. United Kingdom.32 The origins of the conflict went back to the three hundred year old dispute

28 Judgment paras 46-52. 29 L. Burgorgue-Larsen, ‘L’identité de l’Union européenne au coeur d’une controverse territoriale tricentenaire Quand le statut de Gibraltar réapparaît sur la scène judiciaire européenne’, 43 Revue trimestrielle de droit européen 1 2007, pp. 25-45, pp. 25-26. 30 Case 141/78, France v. United Kingdom [1979] ECR 2923, Case C-388/95, Belgium v. Spain [2000] ECR I-3123, Case C-145/04, Spain v. United Kingdom [2006] ECR I-7917. 31 In its third head of complaint Hungary claimed that the Slovak Republic invoked the directive in order to pursue political aims and wished to express political hostility. Opinion paras 41-42, Judgment paras 53-54. 32 Case C-145/04, Spain v. United Kingdom [2006] ECR I-7917.

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7  Hungary versus Slovakia – EU Membership versus Sovereign Statehood between the British Crown and Spain on the (international) status of Gibraltar. The United Kingdom – executing the judgment of the European Court of Human Rights in Matthews v. United Kingdom – granted voting rights in the election of the members of the European Parliament to qualifying Commonwealth citizens (QCC), persons resident in Gibraltar but not holding the citizenship of the United Kingdom. According to Spain this was in breach of the treaty which confers the right to vote only to citizens of the member states (in their capacity as Unions citizen). The United Kingdom violated EU law by attaching Gibraltar to one of the existing electoral regions in England and Wales, thereby extending its territorial sovereignty to Gibraltar. The European Commission – while expressing the view that the United Kingdom had not violated EU law – invited the parties to find an amicable solution. Spain brought an action, and the Commission intervened in support of the United Kingdom. The Court – with a somewhat controversial reasoning – dismissed the action of the ‘troublemaker’ Spain. One of the messages of the judgment was: the member states should avoid turning to the Court with their historico-political disputes. The historical roots of the case Hungary v. Slovakia go back to over a thousand years. (Saint) Stephen I – the unveiling of the statue of whom Mr Sólyom was to honour with an inaugural speech – founded the Kingdom of Hungary in 1000. Until the changes to its borders were effected by the Treaty of Trianon, the territory of the Kingdom of Hungary included the territory on which now lies the Republic of Slovakia. The majority of the inhabitants of this territory were of Slovak nationality. As a result of the new borders set by the Treaty of Trianon and the Treaty of Paris,33 a significant Hungarian minority emerged in the neighbouring Czechoslovakia.34 This situation was inherited by Slovakia after the split of Czechoslovakia in 1993. The hostility against Hungarians was present in the political discourse in Slovakia from the very beginning. Reluctance towards granting collective minority rights was also perceptible. In Hungary, following the change of the political system in 1989/90, the reunification of the Hungarian nation without questioning the borders became part of the political ideology and government policy.35 This is reflected in the new Constitution of 1989 and also in

33 Treaty of Peace between the Allied and Associated Powers and Hungary signed at Trianon, 4 June 1920, in force 26 July 1921, 6 League of Nations Treaty Series Treaty of Peace with Hungary, Paris, 10 February 1947, No. 41, United Nations Treaty Series, p. 166. 34 The census of 1921 recorded 637,000 Hungarians. The census of 2011 in Slovakia recorded 458, 467 ­Hungarians (8.5 % of total population). 35 For the Hungarian governmental policy in this regard see N. Bárdi, ‘The Policy of Budapest Governments towards Hungarian Communities Abroad’, in: N. Bárdi, Cs. Fedinec & L. Szarka (Eds.), Minority Hungarian Communities in the Twentieth Century, Social Science Monographs, Boulder, Colorado, Atlantic Research and Publications, Inc, Highland Lakes, New Jersey, New York, 2011, pp. 456-467.

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Ernő Várnay the Fundamental Law adopted in 2011.36 During the Convention preparing the proposal for a Constitution for Europe, the Hungarian members put several – mostly unsuccessful – initiatives on the table in order to include the recognition and protection of collective rights of national and ethnic minorities in the Constitutional Treaty.37 We suggest that Mr László Sólyom planned his visit in the spirit of solidarity with the Hungarian minority living in Slovakia, perhaps to enhance their sense of belonging to the ‘mother country’. Perhaps he considered the visit an ‘intra-national’ business, maybe that is the reason why he refused to meet the representatives of the Slovak state. Arguably this was the main cause for the prohibition of entering the territory of the Slovak Republic.38 After the humiliation of its Head of State,39 Hungary could not remain inert. Given that the Slovak measure referred to an EU directive it seemed appropriate to initiate an infringement procedure against the Slovak Republic. The Commission tried to dissuade Hungary. In spite of the warning signals, Hungary followed through with the procedure. The outcome is well known.40

7.4.2   The Hidden Sovereignty – Heads of State in International Law From the very beginning, the European integration restricted the sovereignty of the member states. Examples are the custom union, the monetary union, or the prohibitions of member states to restrict market freedoms. Just after the promotion of peace and the wellbeing of its peoples, the Treaty on the European Union sets forth the objective of offering 36 Constitution of Hungary of 1949 as amended by Act XXI of 1989. Art. D of the Basic Law (constitution) of Hungary (entered into force on first of January 2012) provides: “Hungary, guided by the notion of a single Hungarian nation, shall bear a sense of responsibility for the fate of Hungarians living outside her borders, shall foster the survival and development of their communities, shall support their efforts to preserve their Hungarian identity, and shall promote their cooperation with each other and with Hungary.” 37 E.g., Contribution by Mr. József Szájer, member of the Convention, delegated by the Hungarian National Assembly, “Unity in diversity” Proposal for the representation of national and ethnic minorities in the institutional system of the European Union Committee of National and Ethnic Minorities (CONEM) (last accessed 7 December 2012). 38 One can come to the same conclusion on the grounds of the statement of Mr Robert Fico, the Slovak Prime Minister on 15 March 2010, responding to an opinion expressed by President Sólyom on the teaching of languages in primary school: “(in) these circumstances, refusing to allow Mr Sólyom to enter the country on 21 August 2009 was completely justified in our view. In our opinion, it is even more so now than it was then”. Opinion, para. 17. 39 The prohibition put Mr Sólyom into the company of Kurt Waldheim (president of Austria) and Mobutu (President of Zaire, notorious for corruption, nepotism and human rights violations). The former as a private person was barred from entry into the United States because of his activity during the World War II, the latter was refused permission to enter France in 1993. Watts, 1994, p. 73. 40 The possible political considerations behind the decision of the Court are indicated by Ambrus: “[. . .] the fact that the Court remained so obscure and unclear about the nature of the conflict of law and the way to solve it gives the judgment a very political tin”. M. Ambrus, ‘The Sólyom case: fragmentation and conflict of laws’, .

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7  Hungary versus Slovakia – EU Membership versus Sovereign Statehood its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.41 This objective requires a number of restrictions on the external and internal sovereignty of the member states.42 International law allows for the (self-)limitation of state sovereignty on the basis of an international agreement. This is exactly what the member states of the European Union undertook in the founding treaties. One can formulate the basic question of Hungary v. Slovakia as follows: Did the member states confer the power to restrict the crossing of their borders by their citizens – a power attributed to sovereign states under international law – or not? Hungary’s answer was ‘yes’, this was agreed under Article 21 TEU. The member states also prescribed the exceptions to such conferral (i.e. the remaining sovereignty in this matter). Slovakia and the Advocate General took the opposite view. The member states retain their sovereignty in the European Union, the Head of States are the representatives of state sovereignty in international relations, consequently their entry in another state is governed by international (diplomatic) law. According to international law such entry requires the consent of the host state.43 The member states did not confer competence upon the Union concerning the regulation of diplomatic relations between them. Under the principle of conferral44 this competence remains with the member states.45 It is submitted that the Court’s perception is essentially the same. Unlike the respondent member state and the AG, the Court’s judgment entirely avoided the use of expressions such as ‘sovereign state’ or ‘sovereign equality of states’. It makes considerable effort to conceal the sovereign state status of the member states, which actually serves as the veritable foundation of its reasoning.46 While Slovakia and the AG detected the special status of member states in international law rules on sovereign statehood, the Court remains silent on this matter. Understandably, the Court does not refer to the equality of member states

41 Art. 3(2) TEU. 42 As it was stated by the Court of Justice in the seminal Judgment Van Gend and Loos: “The European Economic Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only the Member States but also their nationals.” Case 26/62, Van Gend and Loos ECR [1963] 3. 43 Opinion, paras 34 and 57. 44 Art. 5(2) TEU. 45 For the Slovak reasoning, see Opinion, para. 34, and for the argumentation of the Advocate General, see Opinion para. 51. 46 This attitude is not new. As Jakab puts it, “Bodin, Hobbes and Pufendorf had invented the big gun (i.e. national sovereignty), and in the next centuries a series of philosophers, politicians and lawyers worked on the problem of where to hide it, so nobody gets hurt.” A. Jakab, ‘Neutralizing the Sovereignty Question Compromise Strategies in Constitutional Argumentations about the Concept of Sovereignty for the European Integration’, European Constitutional Law Review 2, 2006, pp. 375-397.

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Ernő Várnay before the Treaty or to the obligation of the Union to respect the constitutional identity of the member states. These Treaty provisions might be read as the expressions of the sovereign statehood of the member states. The same is true for the principle of conferral – equally unmentioned in the judgment – the meaning of which is that the member states remain the ‘masters of the Treaty’, in other words they remain sovereign. The Court failed to indicate the concrete source of customary international law concerning the special status of the Heads of State in international relations47 and answer the question, why it is governed exclusively in international law. In the light of the effort to sidestep the sovereignty question, this is more than understandable. The special status is closely related to the state sovereignty. As Sir Arthur Watts writes in his authoritative study:48 Over the past half century in particular [. . .] attitudes towards State sovereignty generally and towards Heads of States have changed; the mystique of sovereignty, whether of States or their Heads, is much diminished. Nevertheless, the earlier close identity of the law governing the position of States with that of Heads of States, with both aspects being informed by notions of “sovereignty”, has left its mark on current legal ideas relating to the position of Heads of States. [. . .]. Heads of States are still in a special position as the supreme representative of, and in some respects the personal manifestations of, their States.49 In practice, the state being visited may be expected to grant the visiting Head of State ceremonial courtesies and special measures of protection, and understandings – or even – an agreement – to that effect may be reached through diplomatic channels.50 Sir Watts quotes Oppenheim who says: the basis for the special treatment accorded to heads of States is variously ascribed, inter alia, [. . .] the respect due to them as representatives of sovereign states; [. . .] the implied licence of the state being visited.51 Maybe the Court avoided making explicit the direct relationship between the special treatment of Heads of State under customary international law and state sovereignty because it

47 One reason for that that the sources and substance of the customary international law as such are far from being certain. The International Law Commission recently adopted a working plan on the formation and evidence of customary international law. International Law Commission, Report on the work of its sixtythird session (26 April to 3 June and 4 July to 12 August 2011) General Assembly Official Records Sixty-sixth Session Supplement No. 10, Annex A Formation and evidence of customary international law. 48 Watts 1994. 49 Ibid., p. 36. 50 Ibid., p. 73. 51 Ibid., p. 36, note 34.

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7  Hungary versus Slovakia – EU Membership versus Sovereign Statehood did not wish to surrender a trump card to the hands of sovereignists or to tie its own hand when arguing for its own sovereignty.52 The fact that the Court finds the regulation of the status of Heads of State exclusively within the ambit of international law (in the mysterious ‘customary rules of general international law’ as well as multilateral agreements) clarified its position on several points. Perhaps the most important of which is that the member states did not confer implicit competence upon the Union concerning the regulation of the status of Heads of State of the member states. Read together with the absence of the principle of conferral, the judgment also claims that the member states cannot confer this competence upon anyone unless they lose their sovereign statehood. As the Court relies exclusively on international law, it can avoid making a final decision on the private or public nature of the planned visit since international law does not make a distinction between the two when it comes to offer Heads of State special treatment by the host state.53 (The Heads of State may ‘get rid of ’ this special treatment only in case they maintain their incognito.54) This way the Court excluded the interpretation – left open by Slovakia, the Commission and the AG – according to which the private visit of the Heads of State might come under the EU law.55 Another possible interpretation also remained outside the Court’s focus. The Court totally ignored the fact that the incident occurred between two member states of the European Union.56 This approach discerned in the Opinion of the AG, who is of the opinion that the member states are not totally free in their diplomatic relations, they are obliged to maintain good neighbourly relations in order to comply with the objectives of the Treaties. It would be probably contrary not only to a necessarily higher standard of comity between member states than in the case of ordinary diplomatic relations, but also to the normal

52 G. De Burca, ‘Sovereignty and the Supremacy Doctrine of the European Court of Justice’, in N. Walker (Ed.), Sovereignty in Transition, Hart, Oxford, 2003, pp. 449-460. 53 “The International Law Commission has expressed the view that ‘A Head of State [. . .] is entitled to special protection whenever he is in a foreign State and whatever may be the nature of his visit – official, unofficial or private’, and under Art. 1 (a) of the Convention on the Prevention and Punishment of Crimes against Internationally protected Persons, including Diplomatic Agents, 1973, a Head of State is an internationally protected person “whenever he is in a foreign State.” Watts 1994, p. 73 : “S’agissant de l’inviolabilité, il est incontesté qu’elle est accordée sur le territoire étranger non seulement en cas de visite officielle, mais aussi en cas de visite privée pourvue que la qualité de chef d’Etat soit connue” J. Salmon, ‘Representativité internationale et chef d’Etat’, in: A. Pedone (Ed.), Colloque de Clemont-Ferrand, Le chef d’Etat et le droit international, Paris, 2002 pp. 155-172, at p. 165. 54 “So long as the Head of State maintains his incognito there is no option but to treat him (on a private visit in another State) as an ordinary private person, and he may be regarded as having waived any claims to special treatment.” Watts 1994, p. 75. 55 We note that under the hearings, the questions addressed to the Hungarian agents were related to the public or private nature of the visit. Visibly on that point of the procedure this question had have some importance, at least for some judges. 56 This aspect is pointed out in the editorial comments of the Common Market Law Review, ‘Editorial comments, Hungary’s new constitutional order and “European unity”’ 3, 2012, pp. 871-883, at p. 883.

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Ernő Várnay functioning of the Union if the Heads of State of the member states wishing enter Belgium in order participate to European Council meeting were treated exclusively under the rules of public international law. 7.4.3   Customary International Law and the European Union Legal Order In its argumentation, the Hungarian Government claimed that there are no rules of international law governing the entry of a Head of State into the territory of another state. In any case, even assuming that such rules exist, their application must not compromise the effectiveness of EU legislation, such as Directive 2004/38, by introducing a derogation regarding its personal scope.57 Relying on two cases58 in which the Court ruled that “the provisions of an agreement concluded prior to entry into force of the Treaty or prior to a Member State’s accession cannot be relied on in intra-Community relations”, Hungary contended that opinion is equally valid with regard to the rules of customary international law.59 In the meaning of this interpretation, customary international law does not, in its entirety, form part of the European Union legal order. As we have seen earlier, the Court took the opposite view. ‘International law is part of the European Union legal order.’ How are we to understand this strong statement? Ambrus suggests that this position would essentially mean that there is no fragmentation between EU law and international law, as the latter is part of the former, i.e. they constitute the same legal regime or they live on the same island. Arguably, what the Court probably meant to say was, however, that they are part of the same regime, or more precisely that EU law forms part of general international law. Both of these two suggestions seem to simplify the relationship between international law and the EU legal system. Traditionally, the law of the EU contains primary law and secondary law. Primary law consists of the founding treaties (TEU and TFEU),60 the EU Charter of Fundamental Rights61 and the general principles of law (including fundamental rights).62 Secondary law

57 Opinion para. 28. 58 Joined Cases C-241/91 P and C-242/91 P RTE and ITP v. Commission [1995] ECR I-743, para. 84, and Case C-301/08, Bogiatzi [2009] ECR I-10185, para. 19. 59 Opinion, note 5. 60 Art. 1(3) TEU. 61 Art. 6(1) TEU. 62 As AG Trstenjak puts in his opinion in Audiolux: “The general principles are distinguished by the fact that they embody fundamental principles of the Community and of its Member States, which explains their status as primary law within the hierarchy of rules in the Community legal order.” Case C-101/08, Audiolux [2009] I-9823, para. 70. “The general principles of Community law have constitutional status.” Audiolux Judgment, para. 63.

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7  Hungary versus Slovakia – EU Membership versus Sovereign Statehood comprises the legal acts of the institutions of the EU. Provisions of agreements concluded by an institution of the EU form integral part of Community law once they enter into force. They do not prevail over primary law, but rank between primary and secondary law.63 In accordance with the principles of international law, the application of the Treaty does not affect the commitment of the member state concerned to respect the rights of non-member states under an earlier agreement and its compliance with corresponding obligations.64 (The Court rejected the proposition of the General Court according to which the Charter of the United Nations has primacy over EU primary law.65 ) In other words, according to the principle of pacta sunt servanda, these international treaties have primacy over the Treaties. EU law is thus considered to be more than a simple sum of legal acts. It is an autonomous legal order. The EU legal order protects this relative autonomy also vis-à -vis the international legal order.66 We suggest that the statement ‘international law forms part of the EU legal order’ understood as the ‘law of the land’ in the EU comprises not only the primary and secondary law of the EU, but also the relevant principles and rules of international law. This situation reminds us not only of the incorporation of fundamental rights into the Community legal order by the Court of Justice,67 but also of the relationship between EU law and the member states’ legal order68 or that of the national legal orders and public international law.69 Their cohabitation is of a dialectical nature.

63 Case 181/73, Haegeman [1974] ECR 449, para. 5, Kadi, paras 306-308. 64 Art. 351 TFEU, Case C-124/95, Centro Com [1997] ECR I-81, para. 56. 65 Case T- 306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council and Commission [2005] ECR II-3533, paras 231-241, Case T-315/01, Kadi v. Council and Commission [2005] ECR II-3649, paras 181-188, Kadi, paras 307-308, n. 84. 66 It is also to be recalled that an international agreement cannot affect the allocation of powers fixed by the Treaties or, consequently, the autonomy of the Community legal system … (see, Opinion 1/91 [1991] ECR I-6079, paras 35 and 71, and Case C-459/03, Commission v. Ireland [2006] ECR I-4635, para. 123 and case law cited.) Joined cases C-402/05 P and C-415/05 P. Kadi and Al Barakaat International Foundation v. Council and Commission [2008] ECR I-6351, para. 282 (emphasis added). 67 “In fact, respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community. It must therefore be ascertained, in the light of the doubts expressed by the Verwaltungsgericht, whether the system of deposits has infringed rights of a fundamental nature, respect for which must be ensured in the Community legal system.” (emphasis added). Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhrund Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125, para. 4. 68 “By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply.” Case 6/64, Flaminio Costa v. Enel [English 1964] 585, 593. 69 E.g., Art. Q Fundamental Law of Hungary provides:   “(2) Hungary shall ensure that Hungarian law is in harmony with international law, in order to comply with its obligations under international law.   (3) Hungary shall accept the generally recognised rules of international law. Other sources of international law shall be incorporated into Hungarian law upon their publication as rules of law.”

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Ernő Várnay We suppose that the place and legal nature of the international law in the EU legal order (in the ‘law of the land’ sense) is not homogenous. Given that in the Hungary v. Slovakia case the ‘customary rules of general international law’ are directly concerned, we will focus on this issue. Undoubtedly, some rules of customary international law70 and some of the general principles of international law71 found their way into the EU legal order. These rules and principles are binding upon the EU and its institutions. The exercise of the law-making powers of the institutions is limited by the relevant rules of international law. The acts of the institutions are to be interpreted, and their scope is restricted according to international law.72 Unfortunately, serious questions remain unanswered. Which rules and principles of customary international law form part of the EU legal order? Where is their place in the hierarchy of norms (principles) of EU law (in its narrow sense)? The first question seems to be even more relevant as the sources of international customary law are numerous and the value of these varies and much depends on the individual circumstances.73 According to von Bogdandy and Smrkolj, in Racke the Court integrated only “fundamental rules of customary international law” into the EU legal order, and because of the ‘complexity of the rules’, the Court further restricted its review to the question “whether, by adopting the suspending [act], the [institution] made manifest errors of assessment concerning the conditions for applying those rules” (para. 52.). Their conclusion is that “customary international law and general principles play only a minor role.”74 In Hungary v. Slovakia the Court integrated into the EU legal order the customary rules of general international law and multilateral agreements related to the Heads of States.

70 Case T-115/94, Opel Austria v. Council [1997] ECR II-39, para. 90. “The Court holds in this connection, first, that the principle of good faith is a rule of customary international law whose existence is recognized by the International Court of Justice (see the Judgment of 25 May 1926, German interests in Polish Upper Silesia, CPJI, Series A, No. 7, pp. 30 and 39) and is therefore binding on the Community”. Case C-162/96, Racke [1998] ECR I-3655, para. 46. “It follows that the rules of customary international law concerning the termination and the suspension of treaty relations by reason of a fundamental change of circumstances are binding upon the Community institutions and form part of the Community legal order.” 71 “In order to interpret that provision, account must be taken of the purpose of the IDA, the context of Article 6 and the general rule of international law requiring the parties to any agreement to show good faith in its performance (see, the judgment in Kupferberg, paragraph 1)” Case C-61/94, Commission v. Germany [1996] ECR I-3989. para. 30. In Wood Pulp, the Court admitted that “[A]ccordingly the Community’s jurisdiction to apply its competition rules to such conduct is covered by the territoriality principle as universally recognized in public international law.” Joined cases 89, 104, 114, 116, 117 and 125 to 129/85. A. Ahlström Osakeyhtiö and others v. Commission [1988] ECR 5193, para. 18. 72 Case C-286/90, Poulsen and Diva Navigation [1992] ECR I-6019, para. 9. 73 I. Brownlie, Principles of Public International Law, 7th edn, Oxford University Press, Oxford 2008, pp. 6-7. 74 A. von Bogdandy & M. Smrkolj, ‘European Community and Union Law and International Law’, Max Planck Encyclopedia of Public International Law (last accessed 24 January 2012).

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7  Hungary versus Slovakia – EU Membership versus Sovereign Statehood Unlike in Poulsen and Diva Navigation75 Racke, Air Transport Association of America and Others76 or in Opel Austria, there is no reference to the material source of the relevant rules. As admitted by the Advocate General,77 rules of customary international law and multilateral agreements concern the particular treatment (especially regarding privileges and immunities) of the Heads of State during their presence in a foreign state, not their entry.78 The Court implied in these rules the rules on their entry, the essence of which is here the consent of the host state.79 This can be regarded as an important contribution to the formation of the customary international law. In Hungary v. Slovakia, the Court declared that the rules of customary international law preclude the application of Article 21 TFEU, a provision of primary law. It is not the first time this appears in the case law of the Court. The Van Duyn80 can be seen as an antecedent of Hungary v. Slovakia in different ways. It was also a case related to a member state’s measure: British authorities prohibited the entry of another member states’ citizen, thereby restricting the free movement of persons (workers at that time) and violating the Treaty provision concerning non-discrimination based on nationality. The Court found that the United Kingdom – under the principle of international law – was precluded from applying the principle of non-discrimination. In its judgment, the Court declared [. . .] it is a principle of international law, which the EEC Treaty cannot be assumed to disregard in the relations between Member States, that a State is precluded from refusing its own nationals the right of entry or residence.81

75 Poulsen and Diva Navigation, para. 10. (Geneva Conventions on international sea law “in so far as they codify general rules recognized by international custom”, and judgments of the International Court of Justice as justification of the existence of customary international rules.) Opel Austria, para. 90 (reference to the judgment of the International Court of Justice), Racke para. 49. (Vienna Convention) para. 50 (judgment of the International Court of Justice). 76 Case C-366/10 , Air Transport Association of America and Others, para. 104. (reference to the Chicago Convention, the judgments of the International Court of Justice and that of the Permanent Court of International Justice (not yet reported). 77 Opinion, para. 55. 78 In this connection Bárd is talking about “phantom international law”. P. Bárd, ‘Uniós polgár-e Sólyom László?’ (Is Sólyom László EU citizen?), Szuverén, 8 November 2012. . 79 Judgment para. 50, Opinion, para. 57. Concerning the ‘consent’ requirement the AG refers to Art. 2 of the 1961 Vienna Convention, Art. 2(1) and (2) of the Vienna Convention of 24 April 1963 on Consular Relations and Arts. 1(a), 2 to 6 and 18 of the Convention on Special Missions. 80 Case 41/74 , Van Duyn v. Home Office [1974] ECR 1337 81 Van Duyn, para. 22. The Court referred to this principle again repeatedly. Joined Cases C-65/95 and C-111/95, Shingara and Radiom [1997] ECR I-3343, para. 28; Case C-171/96, Pereira Roque [1998] ECR I-4607, para. 38; Case C-348/96, Calfa [1999] ECR I-11, para. 20; Case C-416/96, El-Yassini [1999] ECR I-1209, para. 45; Case C-235/99, Kondova [2001]ECR I-6427, para. 84; Case C-63/99, Gloszczuk [2001] ECR I-6369, para. 79; Case C-257/99, Barkoci and Malik [2001] ECR I-6557, para. 81.

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Ernő Várnay This means that the Court – delimiting the powers of the Community and the member state82 – gave primacy to international law over a Treaty provision in relations between member states. 7.4.3.1  Primacy or Supremacy? The rules of conflict of laws determine which rule has primacy over the other, which rule is applicable for the case at hand. The principle lex specialis derogat legi generali is a rule of conflict of laws giving primacy on the basis of the substance of the conflicting rules. The principle lex posteriori derogat legi priori accords primacy to the rule established later in time. Each of these two rules of conflict of laws can be relied on concerning rules placed on the same level in the hierarchy of norms. The principle of supremacy gives primacy to the rule which is in a higher position in the hierarchy of norms. Ambrus suggests that in Hungary v. Slovakia the Court gave primacy on the basis of the principle of lex specialis derogat legi generali.83 The Court does not use the term ‘primacy’ in the meaning asserted above. In Kadi, for example, the term ‘primacy’ is clearly employed as an equivalent of supremacy.84 We submit that due to the fact that in Hungary v. Slovakia primacy was accorded to rules of another legal order (i.e. the international legal order),85 the rule of conflict of laws is the principle of supremacy. This means that the Court finds that there are rules of general international law which are of higher rank in the hierarchy of norms than a rule of primary EU law. The Court did not apply the relevant rule of customary international law, it simply stated that the rule applicable to the case is not the Treaty, but the rule of international law.86 It remained silent on the lawfulness of the Slovak measure under international law. It had no other choice, as under Article 259 TFEU the Court can only interpret the Treaty (as well as secondary law), in order to establish the existence of a violation of EU law. According to the judgment the Slovak authorities must set aside the relevant Treaty provision as inapplicable, and the Hungarian authorities cannot rely on it. Is this not the formula the Court employed when establishing the supremacy of EU law over the member states’

82 J. Wouters & D. Van Eeckhoutte, ‘Giving Effect to Customary International law Through European Community Law’, K.U. Leuven Faculty of Law Institute for International Law Working Paper No. 25 – June 2002, pp. 6-11. 83 Ambrus 2012. 84 “Thus, by virtue of that provision, supposing it to be applicable to the Charter of the United Nations, the latter would have primacy over acts of secondary Community law (see, to that effect, Case C-308/06, Intertanko and Others [2008] ECR I-0000, para. 42 and case law cited). That primacy at the level of Community law would not, however, extend to primary law, in particular to the general principles of which fundamental rights form part.” Kadi, paras 307-308. 85 In Racke, the Court admitted the co-existence of the European legal order and the international legal order. Racke, paras 45 and 49. 86 For opposite view see Ambrus 2012.

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7  Hungary versus Slovakia – EU Membership versus Sovereign Statehood legal system for the use of national courts?87 This is the same perception of the relationship between the general international law (the Charter of the UN) and the primary EU law what the General Court admitted in Yusuf  88 and Kadi and what the Court did not accept.89 The supremacy thesis might also be supported by the (legal) fact that the Court ruled the provision of primary law inapplicable, since the relevant rules of international law are directly related to the sovereign statehood of the member states, which is certainly a quality that is ‘supreme’ to their EU membership.90 The member states “permanently remain the masters of the Treaties”.91 The Head of State represents the member state as the proprietor of the complete sovereignty. Legally the member states are more than just members of the European Union. It follows from the foregoing, that we do not have to try and place the rules of customary international law concerning the Heads of States as representatives of sovereign states in the hierarchy of norms of the European legal order in its narrow sense. By contrast, in the ‘law of the land’ of the European Union (and its member states) these rules enjoy supremacy over the primary and secondary law of the EU.

7.5 Conclusion In Hungary v. Slovakia, the Court rejected the main argument of the appellant member state that the entry of the President of the Republic of Hungary into Slovakia is governed by the Treaty on the European Union (and relevant secondary law). The Court, essentially in line with the arguments of the respondent member state, the Commission as intervener in support of the respondent and the Advocate General, stated that the entry of the Head of State of a member state into another member state must be

87 Case 6/64, Flaminio Costa v. Enel [1964] ECR 585. 88 Case T-306/01, Yusuf and Al Barakaat Foundation v. Council 240 It also follows from the foregoing that, pursuant both to the rules of general international law and to the specific provisions of the Treaty, member states may, and indeed must, leave unapplied any provision of Community law, whether a provision of primary law or a general principle of that law, that raises any impediment to the proper performance of their obligations under the Charter of the United Nations. 89 Case T-315/01, Kadi v. Council and Commission [2005] ECR II-3649, paras 181-188. 90 As Brownlie puts it: “If international law exists, then the dynamics of state sovereignty can be expressed in terms of law, and, as states are equal and have legal personality, sovereignty is in a major aspect a relation to other states (and to organizations of states) defined by law.” Brownlie 2008, p. 289. 91 “The empowerment to transfer sovereign powers to the European Union or other intergovernmental institution permits a shift of political rule to international organizations. The empowerment to exercise supranational powers, however, comes from the Member States of such institution. They therefore permanently remain the masters of the Treaties… . The ‘Constitution of Europe’, international treaty law or primary law, remains a derived fundamental order.” Lisbon judgment of the German Federal Constitutional Court, para. 231, cc), .

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Ernő Várnay deduced from the customary rules of general international law and multilateral agreements. The Court highlighted that international law forms part of the European Union legal order. In the conflict of rules of customary international law and Article 21 TEU the judgment gave primacy to the former. The judgment does not contain the concrete material source of the relevant rule of customary international law. It remains silent on the direct relationship between the rules of international law related to the Heads of State as representatives of the states in question and sovereign statehood. One might formulate this as follows: Given that the member states remain sovereign in the European Union, the founding treaties cannot regulate, even implicitly, the particular treatment accorded to the Heads of State in international relations. We submit that the EU legal order in its narrow sense (primary and secondary law) keeps its relative autonomy vis-à-vis international law. Consequently, the primacy accorded to customary international law in the case at hand was on the basis of the principle of supremacy. We also suggest that we may arrive at the same conclusion if we consider the direct relationship of the relevant rules with state sovereignty, which is the supreme legal quality of the member states. As far as the place of the relevant rules of international law in the hierarchy of the E ­ uropean Union legal order are concerned, we suggest that they do not form part of EU law in its narrow sense, but are placed in the highest rank of the ‘law of the land’ of the European Union (the EU legal order in its wider sense). As a ‘side effect’ of the case, the Court repeated its message: The member states must avoid the Court as the arbiter of their historico-political affairs.

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8

Is László Sólyom a European Citizen? Hungary versus Slovak Republic

Petra Bárd* In its judgment delivered on 16 October 2012,1 the Court of Justice of the European Union ruled that, in barring the President of Hungary from entering Slovakian territory three years earlier, Slovakia had in fact acted without breaching any European Union laws. From the viewpoint of the evolution of EU law, the decision itself was far less interesting than the legal reasoning attached to it. From the Court’s arguments we can, directly or indirectly, conjure a number of conclusions. It seems that a hierarchical order exists between fundamental rights, international law and fundamental freedoms. In addition, we can draw some conclusions not only about the present stage of advancement in European integration but also about the Court’s self-imposed limitation of its powers in light of its own definition of the level of integration. At the same time, however, the logic of the legal reasoning seems to falter at several points, with the Court leaving important questions unanswered while opening others without good reason. This, however, should not automatically imply that the outcome is not correct. The Hungarian application could have been rejected on various other grounds, some of which would have allowed for positions that are easier to defend from a legal point of view. In the following I shall present the facts, procedural history and the judgment itself, followed by conclusions implied by and derived from the reasoning relevant for the future development of EU law, and finally I shall offer positions I find more valid than those presented by the Court.2

*

LL.M. SJD, works as a senior researcher at the National Institute of Criminology, where she is also the Head of the Criminal Law Division. As a lecturer at the Central European University, Legal Studies Department she teaches EU constitutional law, EU criminal law, human rights in the EU and selected issues in criminology and forensic sciences. At ELTE School of Law she teaches criminology and data protection law. In her writings she primarily addresses European constitutionalism, human rights in the European Union, the rights of persons living with disabilities and judicial and police cooperation in criminal matters. 1 Case C-364/10, Hungary v. Slovak Republic 16 October 2012. (hereinafter referred to as “Judgment”) 2 I owe special thanks to Dr. Gábor Attila Tóth, President of the Hungarian Civil Liberties Union, Professor László Valki from ELTE School of Law and Dr. László Venczl, Hungarian Member of Eurojust for their comments on earlier drafts. I also thank Dr. Balázs Rátai for his provoking questions and Ervin Dunay for his great help.

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Petra Bárd 8.1 The Facts of the Dispute On 21 August 2009, László Sólyom was on his way to the Slovakian town of Komarno. The purpose of his visit was to speak at the ceremonial unveiling of the statue of St. ­Stephen. The invitation to attend had been issued by a civil organization, the Committee of the Statue of St. Stephen, and the President had no scheduled meetings with other politicians. The ceremonial unveiling had been set to take place on 21 August, the day after St. ­Stephen’s Day. However, 21 August is a sensitive date in Slovakian history: it was on this day in 1968 that the armed forces of the Warsaw Treaty – including hundreds of Hungarian troops – marched into Czechoslovakia to stifle the Prague Spring. Prior to the scheduled visit of the President, there had been an exchange of diplomatic notes between the two countries, and the organization went ahead as planned right until the 19 August. Two days before the ceremony, the three major elected officials of Slovakia – President Ivan Gašparovič, Prime Minister Robert Fico and Speaker of the House Pavol Paška, issued a joint statement, in which they described the timing of the visit as insensitive. On the day of the ceremonial unveiling, the Slovak President emphatically stated that he would appreciate it if László Sólyom gave serious consideration to the Slovak concerns. In his reply, László Sólyom indicated that he still wished to attend the ceremony; as for the charge of showing a lack of empathy, he reminded his Slovakian partners that a year earlier, on the occasion of the 40th anniversary of the military aggression against Czechoslovakia, he had expressed his deep regrets over the incident. A few hours prior to the unveiling of the statue, Robert Fico declared that he regarded the visit as a provocation and denied the Hungarian President the right of entry to Slovakia. In accordance with this, the Slovakian Ministry of Foreign Affairs presented Hungary’s Ambassador to Slovakia with a diplomatic note, in which László Sólyom’s entry into Slovakia was formally prohibited. After having been informed of the content of the note, the President decided not to cross into Slovakia through the Elisabeth Bridge across the Danube: instead, he walked as far as the midpoint of the bridge and then turned back. “I will turn back now, because they cannot push me into committing a deliberate legal violation, with me being a legal scholar and a President,” he commented.3 8.2 Procedural History Naturally, between the incident and the start of the legal procedure, a number of diplomatic steps had been taken to settle the dispute. There was a continual exchange of diplomatic 3 In original: “Visszafordulok, mert nem tudnak engem egy tudatos jogsértésbe belehajszolni, hiszen jogász vagyok, államelnök vagyok.” .

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8  Is László Sólyom a European Citizen? Hungary versus Slovak Republic memoranda between the two countries; parallel with that, the Hungarian Prime Minister Gordon Bajnai and his Slovak counterpart Robert Fico met in the H ­ ungarian town ­Szécsény near the border on 10 September 2009, when they signed a rather cautiously worded statement, in which the politicians expressed their regrets over the unfortunate circumstances of László Sólyom’s visit to Slovakia. Still on the same day, in response to an earlier Hungarian letter, the Vice President of the European Commission, Jacques Barrot, admitted that the right to free movement can only be limited proportionally, and any restrictions or limitations must be based exclusively on the personal conduct of the individual concerned. At the same time, he was of the opinion that the enforcement of Directive 2004/38/EC4 should primarily be the concern of the national courts of law. Hungary resorted to a legal remedy only after exhausting these possibilities. Following the diplomatic incident, the Hungarian state filed a case with the Commission, requesting it to determine that the incident established a failure to fulfil an obligation under EU law. This was rejected by the Commission in December 2009, on the grounds that “official visits by the head of one Member State to the territory of another Member State do not come under EU law and […] Member States retain full control of their bilateral diplomatic relations.” For this reason, Hungary filed a case against Slovakia on its own. The Commission intervened in support of the form of order sought by Slovakia. A judgment unfavourable for Hungary could be anticipated in light of the opinion submitted in March 2012 by Advocate General Yves Bot, who recommended the rejection of the application.5 While admitting that the EU citizens’ movement between member states was controlled by EU law, he held that the same did not apply to the foreign visits of heads of state, as the competence in that regard had not been conferred upon the EU by the member states. Under the principle of conferral6 the Union could only act within the limits of the competences conferred upon it by the member states in the Treaties to attain the objectives set out therein. All other competences should remain with the member states. From the fact that the Treaties do not regulate the issue of the heads of states’ entry into the territories of the member states, the Advocate General drew the conclusion that this competence was reserved for the member countries. The Advocate General himself recognized the logical snag in the argument, whereby the Treaties had no separate provisions for heads of states, whereas they were very clear about the rights of Union citizens – and

4 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states. 5 Opinion of Advocate General Bot delivered on 6 March 2012, Case C-364/10, Hungary v. Slovak Republic (hereinafter referred to as “Opinion”). 6 According to Art. 5 Section (2) TEU “Under the principle of conferral, the Union shall 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. Competences not conferred upon the Union in the Treaties remain with the Member States”.

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Petra Bárd the heads of states obviously also fell into that category. For this reason, AG Yves Bot also backed up his case using a different instrument, the Court’s case law based on an earlier judgment, i.e. the ruling in the Commission v. Belgium7 case, which established that the member states retain the right to regulate their diplomatic relations even after joining the European Union.8 At the same time, the Advocate General emphasized that the member states should not exercise their competences – including their diplomatic competence – in such a manner that might lead to a lasting break in diplomatic relations between two member states, because such a break would, in fact, be incompatible with the idea of “an ever closer union among the peoples of Europe”, as declared in the Preamble of the Treaty on the European Union (hereinafter referred to as “TEU”), and could jeopardize the attainment of the Union’s objectives as set out in Article 4(3) TEU.9 Thus AG Bot recommended that the application be dismissed on the grounds of lack of conferral. 8.3 The Judgment In its decision delivered on 16 October 2012, the Court declared that in his capacity as a Hungarian citizen, László Sólyom unquestionably qualified as a Union citizen, which guaranteed him the right to reside and to move freely within the territory of the European Union. Naturally, freedom of movement is not a right without possible limitations, as seen in the case of the Directive 2004/38/EC formulated on the freedom of movement, which itself permits the limitation of that right on the grounds of public policy, public security and public health. In the case under consideration none of the above risks applied. The Court allowed the possibility of limitations on other grounds. According to the reasoning, the legal status of heads of states was regulated under international law, and in its earlier rulings the Court had already declared that EU law had to be interpreted together with international law, since international law formed part of the EU acquis. According to the Court, in cases where EU law cannot be interpreted in accordance with international law, on account of a clear conflict between the two sets of laws, international law must be given precedence. International law, particularly a country’s right, guaranteed under international law, to deny a foreign head of state the right of entry to its territory, therefore enjoys precedence over EU law and, in relation to heads of state, overrides the right guaranteed to all Union citizens to enjoy freedom of movement, which had been

7 Case C-437/04, Commission v. Belgium, 22 March 2007. 8 Opinion, supra note 3, paras 50-52. Interestingly the Court failed to mention Art. 45 of the Charter of Fundamental Rights on freedom of movement and of residence. 9 Opinion, supra note 7, paras 58-60.

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8  Is László Sólyom a European Citizen? Hungary versus Slovak Republic enshrined as a fundamental freedom under Directive 2004/38/EC and was incorporated in the Lisbon Treaty, most notably in Article 21 of the Treaty on the Functioning of the European Union (hereinafter referred to as TFEU)10 on Union citizenship.11 The Court also rejected the Hungarian argument which claimed that Slovakia’s denial of the Hungarian President’s entry to the territory of the Slovak Republic itself constituted an abuse of right, as developed in the jurisprudence of the Court,12 in the sense that the Slovak party used EU law to express political hostility, and referred to the stipulations about public policy and public security in Directive 2004/38/EC merely to achieve a political objective. The Court held that evidence of an abusive practice requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the European Union rules, the purpose of those rules had not been achieved, and, second, a subjective element consisting in the intention to obtain an advantage from the European Union rules by creating artificially the conditions laid down for obtaining it. The Court then held that in the case at hand the objective condition was not satisfied, in other words, the Slovak party was saved, paradoxically, by the fact that it violated EU law not indirectly but directly, as it formally disregarded EU law, because, according to the Directive, the competent national authorities should have passed a decision on the limitation of the right to free movement, of which they then would have had to notify László Sólyom in the appropriate form. Nor has the subjective condition been fulfilled, since a mere reference to the Directive will not make it applicable to a factual situation which is not regulated by law. Therefore, since any reference to the Directive is completely nonsensical, it is unsuitable for the perpetration of an abuse – if we are allowed to borrow a term from the field of criminal law.13 The Court also rejected Hungary’s claim that a danger of future, repeated violations of EU law exists. The Court’s rejection of the Hungarian claim was based on the grounds that, according to Article 259 TFEU as clarified by the case law of the Court,14 the purpose of investigating a failure to fulfil an obligation was not to adjudicate in abstract, hypothetical situations, but to determine and to eliminate an infringement of EU law by a member state. Since the potential danger of a future violation of EU law does not in itself constitute an infringement of EU law, the Court turned down Hungary’s request to deal with the issue.15 10 According to Art. 21 TFEU (ex Art. 18 TEC) Section (1) “Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.” 11 See Judgment, supra note 3, paras 40-52. 12 Case C-110/99, Emsland-Stärke, 14 December 2000. 13 See judgment, supra note 3, paras 56-61. 14 For the first time the European Court of Justice stated this in Joined Cases 15/76 and 16/76, France v. Commission, 7 February 1979. 15 See judgment, supra note 3, paras 62-69.

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Petra Bárd Finally, the Court also rejected Hungary’s request to specify, in the eventuality of a ruling against Hungary, the categories of EU citizens to whom the limitations of the freedom of movement apply under international law: this complaint was rejected on the grounds that a procedure under Article 259 TFEU is not meant to provide an interpretation of EU law, nor is it designed to assess the extent to which EU law can be applied to factual situations at variance with the case under discussion. Since the dispute between Hungary and the Slovak Republic concerned the President of Hungary only, and not any other categories of Union citizens, the Court was unwilling to examine what other groups of EU citizens could have their rights curtailed by possible references to international law in a future, hypothetical legal procedure.16 8.4 The Essential Conclusions from the Viewpoint of the Evolution of European Law 8.4.1   The Hierarchy of Laws In its reasoning, the Court referred to its earlier case law, where it had found that EU law should be interpreted together with international law, since the latter forms part of the acquis communautaire. With regard to the Sólyom incident, this obligation was interpreted by the Court to mean that in the case of a conflict between international and EU laws, the former shall take precedence. However, in Kadi versus EU Council and the Commission of the European Communities,17 which was cited as a precedent, the Court had reached a contrary conclusion on the conflict of EU law and international law. The Kadi case was filed by persons suspected of financially supporting terrorism. Their names were added to a list of suspected terrorists, which was to be maintained and updated by the Sanctions Committee, a body set up under the UN Security Council. The EU executed the respective UN Security Council Resolutions inter alia in Regulations, which provided for the freezing of the funds of those natural and legal persons that appeared in a list annexed to the respective Regulation repeating the list of the UN Security Council Resolutions However, there was no possibility of judicial review to contest the validity of the list. Reflecting on the subject of the hierarchy of laws and the relationship between EU and international law, Advocate General Miguel Poiares Maduro commented that the autonomy of the former shall not mean that “the Community’s municipal legal order and the international legal order pass by each other like ships in the night. […] Yet, in the final analysis, the Community Courts determine the effect of international obligations within the Community legal order by 16 See judgment, supra note 3, paras 70-71. 17 Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, 3 September 2008.

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8  Is László Sólyom a European Citizen? Hungary versus Slovak Republic reference to conditions set by Community law.”18 Although the language used in the judgment is by definition less literary, the European Court reached the same ­conclusion19 – in disagreement with the judgment of the Court of First Instance20 – when it stated that the UN Security Council Resolution was created without providing a statement of grounds to be included to the list or without giving the possibility of hearing to the persons concerned. As a result, in the course of the procedure that led to the adoption of the Regulation, not only was the appellants’ right to defence violated, but – in this context – the principle of their right to effective judicial protection21 was also ignored, along with their right to property due to the freezing of their funds.22 The Court stated, in accordance with the proposition of the Advocate General, that the EU’s international obligations must be in violation of neither the constitutional principles of the Community nor the rule of law nor any of the fundamental rights, including the effective judicial protection or the right to a defence. Since by giving precedence to international law, the Court came to an adverse decision in László Sólyom’s case, we have to presume that the right to free movement, which is one of the fundamental freedoms, does not fall under the category of fundamental rights but creates a weaker entitlement. In this respect, it is rather telling that the Court failed to construe the case as a fundamental rights problem by referring to free movement as enshrined in the Charter of Fundamental Rights.23 This was in fact in line with the earlier rulings of the Court’s case law,24 which stated that fundamental freedoms, that is to say the free movement of persons, goods, services and capital, are weaker than fundamental rights, and whenever there is a conflict, the former is to be limited to the advancement of the latter. After examining the differences between the judgment of the Kadi and the Sólyom cases, we have to conclude that international law is wedged between fundamental rights and fundamental freedoms, and it while cannot lead to the degradation of the fundamental rights, whereas it can trump fundamental freedoms.

18 Opinion of Advocate General Poiares Maduro delivered on 16 January 2008 in Case C-402/05 P, Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, paras 22-23. 19 Supra note 17. 20 Case T-315/01, Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, 21 September 2005. 21 Ibid., para. 352. 22 Ibid., paras 354-371. 23 Supra note 8. 24 Case C-36/02, Omega [2004] ECR I-9609, and C-112/00, Eugen Schmidberger Internationale Transporte Planzüge v. Republik Österreich [2003] ECR I-565. On the relation between fundamental rights and fundamental freedoms see Alberto Alemanno, “A la recherche d’un juste e’quilibre entre libertés fondamentales et droits fondamentaux dans le cadre du marché intérieur. Quelques reflexions à propos des arrêts ‘Schmidberger’ et ‘Omega’ ” (2004) Revue du droit de l’Union européenne, 4; C-112/00, Eugen Schmidberger, Internationale Transporte und Planzüge kontra Republik Österreich, 12 June 2003.

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Petra Bárd 8.4.2   Other Instruments for the Court’s Self-Limitation 8.4.2.1  Phantom International Law In order to paint a fuller picture, we must point out that in comparison to László Sólyom’s case, the Court in some sense had an easier job adjudicating on the Kadi case, where the judicial review only concerned an EU act executing international law, and resulted in a judgment unequivocally confirming that the determination of an infringement of law could not be used to question the precedence of international law.25 By contrast, László Sólyom’s case produced no implementing “internal” Union norm whatsoever, and therefore the Court found itself in direct conflict with international law. The only question is what international law? This is the point at which the edifice of the legal reasoning seems to be crumbling. The truth is that none of the documents invoked by either Slovakia or the Court addresses the issue of a head of state’s entry to another country’s territory. The diplomatic note barring László Sólyom from entering Slovak territory on 21 August 2009 is a telling one in this regard, insofar as the Slovak Foreign Ministry also failed to invoke any document of international law in support of its actions and, unable to produce any instrument of international law of relevance, it finally relied on Directive 2004/38/EC – erroneously, as it turned out, even by Slovakia’s own admission, because László Sólyom obviously never posed any risk to the public policy, public security or public health of Slovakia. The only international norm mentioned by the judges, the New York Convention of 1973,26 has nothing to say about the movement of heads of state, either. For the Convention to have any relevance at all, Slovakia would have had to argue that in view of the rising tension prompted by the timing of the visit, the state was unable to guarantee its obligation under the New York Convention, i.e. it could not vouch for the safety of the Hungarian President, or more specifically, it was unable to prevent the commission of a crime against an internationally protected person, László Sólyom. Nevertheless, neither Slovakia nor the Court invoked, or were in the position to invoke, the same Convention, since the Slovak police issued a communiqué27 on the morning of 21 August 2009, assuring the world that if László Sólyom chose to cross the border, they would be able to guarantee his personal safety. 25 Since the regulation annulled transposed the international norm literally, the Court of course at the same time expressed its opinion on the latter as well. This however does not have any direct legal consequences, only perhaps informally. Mr. Kadi has most probably been removed from the Sanction list on October 2012 partly due to the European pressure confirming the opinion of AG Maduro that the EU and the international legal orders do not pass by each other unnoticed. Supra note 18. 26 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, New York, 14 December 1973. 27 “Ráno pred komárňanskými udalosťami však slovenská polícia prijala vyhlásenie, že pre prípad, že by sa prezident Sólyom rozhodol nerešpektovať diplomatickú nótu MZV a prekročil slovenské hranice, bola, pripravená poskytnúť mu počas pobytu na Slovensku ochranu’. Tento kľúčový fakt sa však do pondelňajšieho rozhodnutia nedostal.” (“In the morning before the Komarno case the Slovak police issued a communiqué

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8  Is László Sólyom a European Citizen? Hungary versus Slovak Republic Furthermore, the judgment also refers to certain customary international law, which allegedly regulates the legal status of the heads of state, but beyond the mere mentioning of the existence of these customary law rules, the judgment said nothing explicit about the associated rules, sources and contents. Naturally, if any such legal instrument of international law or any regulation of customary law did exist, then in view of the hierarchical relationship of international law and European Union law the former would override the latter. To put it differently, the rights deriving from Union citizenship, as well as the limitations to the free movement of individuals, could be determined not only by EU law, but also by the provisions of international law. For example, the armed forces of a member state cannot vindicate the right to hold a military exercise in the territory of another member state by invoking the right to free movement, since international law has precedence over EU law and it is the former that has the competence to regulate the issue.28 In such cases, therefore, international law overrides the rights deriving from EU citizenship, including the individuals’ right to free

according to which they ‘will be ready to grant him protection during his stay in Slovakia’, should László Sólyom decide not to respect the diplomatic note of the Ministry of Foreign Affairs and chose to cross Slovakian borders”) ‘Kubo Mačák: Verdikt v kauze Sólyom: tri chyby krásy’, SME . According to the similar Statement of 20 August of the Ministry of Foreign Affairs: “Na bezpečnosť maďarského prezidenta Lászlóa Sólyoma počas jeho súkromnej návštevy Komárna, ktorú ostro kritizovali viacerí politici na Slovensku, bude dohliadať aj slovenská strana. Zabezpečenie návštevy patrí k bežnej diplomatickej praxi a vyplýva z medzinárodných konvencií, informoval hovorca ministerstva zahraničných vecí Peter Stano. O poriadok v Komárne sa budú starať aj mestskí policajti, vedenie mesta údajne požiadalo o spoluprácu aj štátnu políciu. (…) ‘Ministerstvo zahraničných vecí, rovnako ako pri každej inej návšteve zahraničného hosťa bez ohľadu na úroveň návštevy, technicky zabezpečuje pobyt danej osoby na slovenskom území,’ uviedol Stano. Poznamenal, že povinnú ochranu má na starosti Úrad pre ochranu ústavných činiteľov.” (“The Slovakian authorities will also supervize the safety of the Hungarian head of state, László Sólyom during his visit harshly criticized by several Slovak politicians. Securing the visit is part of the traditional diplomatic practices and flows from international conventions, informed us Peter Stano, the spokesperson of the Minisry of Foregn Affairs. The Komarno municipal police will also guarantee security, and the leaders of the town allegedly requested the cooperation of the state police. (…) ‘A Külügyminisztérium, ugyanúgy mint minden más külföldi vendég látogatása során, függetlenül a látogatás szintjétől, technikailag biztosítja az adott személy tartózkodását Szlovákia területén,’ said Stano. He also noted that the Office for the protection of the public figures and diplomatic missions of the Ministry of the Interior is responsible for the protection of the head of state.”) The Statement appeared in various newspapers and the world wide web. It can be accessed electronically through for example: ; ; . I owe special thanks to Edina Tóth for translating the Slovak originals. 28 The NATO SOFA Convention for example talks about “sending” and “receiving” state, i.e. at least two state acts are needed for the border crossing of troops. See e.g., Art. II of the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces: “It is the duty of a force and its civilian component and the members thereof as well as their dependents to respect the law of the receiving State, and to abstain from any activity inconsistent with the spirit of the present Agreement, and, in particular, from any political activity in the receiving State. It is also the duty of the sending State to take necessary of measures to that end.” (emphasis by author)

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Petra Bárd movement, insofar as a Union citizen serving in the army of a member state cannot cross the inter-state borders freely in his or her capacity as a soldier. The lack of relevant references in the Judgment of Hungary v. Slovak Republic almost gives the illusion that the Court invoked a “phantom” international law and then combined it with the precedence of international law over EU law in order to allow for the possibility of limiting the fundamental freedoms, rather than taking a definite stance in a conflict between member states.29 Naturally, the Court was also aware of the problem and it came up with a solution that was a stroke of genius in logical reasoning: it avoided to write down that the entry of heads of state was regulated by international law, because no such norm existed. Instead it used the following argumentation: since according to the New York Convention the heads of states are entitled to protection while visiting foreign countries, therefore the status of a head of state is a special one. As a consequence of this special status, the conduct of heads of states in an international setting, such as a foreign visit, for example, is governed by international law, and more specifically by the rules of diplomatic relations. Such a chain of logic inevitably poses the question – and immediately leaves it unanswered – that can be phrased as follows: How closely should international law fit the facts before we can declare that the case is governed by international law? With regard to László ­Sólyom’s case, this fit is rather loose – with some exaggeration we can say: the mere existence of any international treaty mentioning heads of states in any context allows for the limitation of EU law. A further question that needs to be addressed is this: Do heads of states, upon entering office, cede all their rights deriving from EU citizenship or do they need to relinquish only some of the privileges, such as free movement, for example? 8.4.2.2  From Front Runners to Last Ones to Finish If one interprets the judgment with the benefit of doubt, the Court seems to address the above questions in a half-sentence, or a hint between the lines. In addition to declaring that the status of heads of states are regulated by international law – that would have provided sufficient legal grounds for the judgment – the Court in fact also added that international customary law and international treaties, most notably the New York Convention, confer “privileges and immunities” on the heads of states. Since the Court failed to follow up on this line of reasoning, we can only surmise that it implicitly adapted the Slovak argument whereby, if it were to be accepted that both international law and EU law applied to the heads of states, then “the Head of State of one Member State would enjoy privileges [meaning the freedom of movement based on, and guaranteed under, EU law, which is a 29 Interestingly Advocate General Bot acknowledges the lack of international norms, nevertheless comes to the conclusion that the status of the heads of states is regulated by international law and customs. See Opinion, Ibid. note 5, paras 55-56.

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8  Is László Sólyom a European Citizen? Hungary versus Slovak Republic privilege in comparison to the general provisions of international law] based on that law in another Member State, while at the same time being protected by the immunity provided for by international law against the applicability of administrative decisions taken by that State under EU law [meaning that heads of states cannot be expelled]. The consequence would be that a Member State could neither deny such a person entry into its territory nor, in view of his immunities, subsequently expel him.”30 Therefore, in arguing for the legal possibility of limiting the heads of states’ right to free movement, the Slovak side referred to a rather narrow category of cases, those involving expelling a Union citizen, or the impossibility thereof, rather. Under EU law, however, expelling an EU citizen is only possible in an exceptionally small number of cases, which require precisely defined conditions and must be carried out according to a well-defined procedure. Therefore, the basis of this legal reasoning entails a possible scenario, under which the risks of public policy, public security or public health did not exist at the time of the Hungarian President’s entry into Slovakia (if they had existed, his entry could have been denied on the basis of EU law), and these risks only materialized during his stay in the foreign country; in addition, some other, very strict conditions of EU law – not to be discussed here – were also fulfilled, the simultaneous coexistence of which would make it possible to expel any EU citizens but heads of states. It is not the aim of the present study to evaluate the Sólyom-incident from the viewpoint of diplomatic relations, but since it constitutes the cornerstone of the Court’s reasoning, it is worth pointing out that the basis of the Slovak argument, which the Luxembourg forum seems to have adopted, is a highly improbable scenario, one that is anything but constructive from the viewpoint of diplomatic relations, involving a head of state who, during the few hours of his visit, commits crimes, for which an ordinary EU citizen would be expelled. Therefore, a contrary reading of the judgment will leave us with the conclusion that neither customary law nor the New York Convention, i.e. the two legal sources that form the basis of the Court’s reasoning, has any relevance regarding the movement of heads of states (phantom international law), while if we give the judgment a sympathetic reading and assign significance to the invocation of “privileges and immunities”, we shall conclude that the increased protection offered to heads of states (under international law), coupled with the theoretical possibility of the materialization of a highly unlikely scenario, provides the grounds for a serious limitation of rights (under EU law). A President Day-and-Night The Court emphasized that the obligation under international law to provide protection to a visiting head of state is independent of the capacity in which he or she stays in the 30 See judgment, supra note 1, para. 37.

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Petra Bárd host state. The only way to interpret this is to say that a head of state can never travel as a ­“civilian”, as he is entitled to the privileges regardless of the capacity in which he is travelling. In this way, the Court has managed to steer clear of the controversy about whether the President was on an official visit or a private trip by declaring that making such a distinction simply made no sense. I find the Hungarian President’s argument, in which he pointed out that he had been on a private trip, a rather weak one. The nature of the visit was obviously not determined by the President’s way of looking at it subjectively. From an objective viewpoint, it would be hard to imagine a visit more official than one which takes place during a country’s national holiday, or the day after it, prompts an exchange of diplomatic notes, and entails an incumbent President hoping to attend the ceremonial unveiling of a statue representing the founder of his own country.31 Nevertheless, I hold the view that is implied by the Court’s judgment, whereby a head of state can never travel as a private citizen while in office, not even when he or she goes on a family holiday or attends a family wedding or funeral. 8.4.2.3  Privileged Individuals Deprived of Their Rights The judgment leaves the question unanswered how those individuals – beyond heads of states – can be identified who are deprived of their rights derived from Union citizenship due to their heightened protection by international law. The Convention does not offer any guidance in this regard either, since its formulation is rather vague: apart from the heads of states, the text acknowledges the head of government, the minister for foreign affairs, whenever any such person is in a foreign state, any representative or official of a state, any official or other agent of an international organization of an intergovernmental character, as well as members of their family who accompany them as “internationally protected persons”.32 We cannot derive from the text with certainty whether they are protected “night and day” just like heads of states, or in case they are not, it is extremely difficult to determine when they are granted protection and when they are private person Union citizens. The Court did not offer any guidance in this respect despite the fact that the Hungarian government expressly requested the judges to do so in its action brought against the Slovak Republic.33

31 Taking all circumstances of the case into account, AG Yves Bot also comes to the conclusion that the planned visit was of an official nature. Opinion, supra note 5, paras 48-49. 32 New York Convention, Ibid., note 26, Art. 1 Section (1). 33 “If in the case of the entry of a citizen of a Member State to another Member State a provision of international law could restrict the personal scope of Directive 2004/38, it would be necessary for the Court of Justice to define the extent of that restriction plainly, in view of the fact that Directive 2004/38 does not contain such an exception or derogation.” Action brought on 8 July 2010 – Republic of Hungary v. Slovak Republic (Case C-364/10), Official Journal, 2004 L 158, 77.

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8  Is László Sólyom a European Citizen? Hungary versus Slovak Republic Certainly, the infringement procedure under Articles 258-259 TFEU is not designed for abstract review, nevertheless one has to acknowledge that the Court left a lacunae with regard to the personal scope of the exceptions. The Court could have prevented this criticism along with all the above ones, had it decided to follow a different line of argumentation. In the next chapter, I will describe three possible reasoning, the second and third of which would have been viable in my view, and the first being an interesting game of mind only. 8.5 ‘Concurring Opinions’ The Court renders collegiate judgements, therefore there are naturally no minority opinions. In a scholarly article, however, one has the freedom to think of alternative ways of reasoning. In the following I will offer three possible lines of argumentation and explore whether they might have been followed in order to reach the same outcome the judges in the actual case arrived at. I will not offer however any “dissenting opinions”, as I do not wish to take a stance on the wisdom of the operative part. The importance of the case lies in the fact that it rendered an opportunity for the Court to draw the boundaries of the powers of the EU lawmaker and the contours of Union citizenship, and to determine the depth of integration. From the viewpoint of the development of EU law the decision which state party to the case was at fault is less relevant. The Court had a free hand, since black letter Union law did not provide clear guidance, and at the same time banning the entry of a member state’s head of state into another EU country was unprecedented, therefore there was no case law on the matter either. In light of this it is more than regrettable that the reasoning of the judgment is crumbling all over, numerous questions are left unanswered, and what is more, new questions have been created that are also left open by the Court. The Court was absolutely not forced to invoke a judgment where only a sentence underpinned its stance,34 but the spirit of which went against the outcome of the decision in Hungary versus the Slovak Republic. Had the Court followed a different line of reasoning, the question would not have emerged what it meant for a subject matter to be regulated by international law, i.e. how remote or how relevant the international norm had to be in order to be able to conclude that the facts of a case were covered by international law. Since the international norm cited by the Court is hardly applicable to the facts of the case under scrutiny, nevertheless still overwrites free movement rights as derived from Union citizenship, it is legitimate to ask which other elements of Union citizenship can be limited based on the cited international laws or customs or perhaps other such norms.

34 Kadi, see note 17, para. 291: “In this respect it is first to be borne in mind that the European Community must respect international law in the exercise of its powers”

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Petra Bárd A further issue where the Court left us in the dark is the personal scope of those individuals privileged and therefore deprived of the rights flowing from Union citizenship. Finally, neither would there have been any need for the Court to indirectly adopt the extremely hypothetical and, from a diplomatic viewpoint, less than helpful argument based on the claim that if during his stay in Slovakia László Sólyom had committed some crimes for which an ordinary EU citizen would have been expelled from Slovakia, then the application of EU law to his case would have implied that he would be getting a twofold – and therefore impermissible – protection. As is so often the case, a little less would have been more. The same outcome that was eventually reached, could also have been achieved without the Court ever considering the merits of the case, and no logical snags would have been produced, either. There were several options to do that. In the following we shall outline a few parallel, but professionally more valid approaches to rejecting the Hungarian application. 8.5.1    The No-Case Scenario In a Cassandraic newspaper article written three weeks after the incident, Mátyás Eörsi seriously warned against taking any legal action in the matter, while pondering over the likelihood of losing the case. In his opinion, the Court could have short-circuited the case, had it refused to consider its merits on the grounds that the President never attempted to cross the border and, therefore, no infringement of law had taken place.35 There would have been no need for the Court to debate the legal aspects of the case right until the next – and hopefully very distant – incident, when a member state actually intervenes in order to prevent the head of state of another EU country from entering its territory. While the observation is unquestionably a pointed one, in my opinion it is not quite accurate, because in EU law the lack of “case or controversy” in itself does not necessarily establish a case for dismissing an application. While it is true that according to Article 259 TEU the objective of a legal proceeding filed for failure to fulfil an obligation is to determine and to stop36 a breach of EU law by a member state, we have seen that in some cases even the mere existence of a national law implemented improperly or beyond due time, or in conflict with an EU law, can constitute an infringement of EU law. Therefore, we should examine whether the decision to ban the Hungarian President from crossing the border between Slovakia and Hungary itself is a breach of EU law, regardless of whether or not László Sólyom actually attempted to cross the border in the concrete case. If we find that

35 Mátyás Eörsi, ‘A Bajnai-Fico találkozó elé’ [Notes on the Bajnai-Fico meeting] 10 September 2009, . 36 See note 14 supra.

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8  Is László Sólyom a European Citizen? Hungary versus Slovak Republic it does not constitute an infringement, then the “no case” argument will hold water, and had the Court resorted to this course originally, all the problems described above could have been avoided. First of all, it is worth making a list of all the possible forms that the prohibition of entry can take. For the sake of argument, let us assume that Slovakia passes a law, which prohibits the incumbent President of Hungary from crossing her borders on the 21 August of the given year. If a member state wanted to have its own domestic laws upheld, would it be possible for that state to argue that the issue had been regulated under international law? In other words, could that country refer to the fact that diplomatic relations are regulated under international law, and that international law takes precedence over EU legislation, even if it tried to use non-diplomatic means – i.e. legislative acts – to solve a diplomatic problem? Regardless of how we answer this question, from the viewpoint of the present study all that must be remembered is that the authority to interpret the range of areas where EU law is applicable clearly belongs to the Court, with the result that Luxembourg would have no option but to consider the merits of the case.37 The concrete situation, is, of course, much simpler than the hypothetical scenario outlined above, since Slovakia actually used diplomatic channels to settle a diplomatic dispute. The second question arises as to whether the Court can look upon the diplomatic note prohibiting the Hungarian President’s entry into Slovakia (or more generally, upon any exchanges of diplomatic messages) as a legally inconsequential “correspondence” between states, thus finding an excuse to avoid discussing the merits of the case? I am of the opinion that it is not the form of regulation that elevates a case to the level of a diplomatic incident, thus rendering it to be the subject of regulation under international law. For example, even if Slovakia was to argue that the entry of Hungarian citizens in general offended both the sensitivity of the Slovak public and the dignity of the commemorations of 1968, the Slovak state could still not prohibit the entry of Hungarian citizens to Slovakia through diplomatic channels. The fact that the action of banning took place in the form of a diplomatic note would not save the member state from the judicial scrutiny of the Luxembourg court. I believe that the simple fact that the member states choose to limit the rights of EU citizens in a form other than that of a legislative act, will not exempt them from judicial review by Luxembourg. If, for example, the free movement of EU citizens were to be limited by an internal police order, that would be just as problematic (even more problematic, I should say) as it would be had it been done by a member state in a legislative act. Therefore, Luxembourg would definitely have to address the question whether the content of the note came under the regulation of international law, which would, once again, take us to back to the Court’s obligation – apparently a difficult and a painful one – to consider the merits of the case. 37 See judgment, note 1, paras 24-26.

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Petra Bárd Can the above reasoning still be salvaged somehow? Would it not be possible to argue that the diplomatic note is legally irrelevant and, as such, must be dismissed from a judicial review, with reference to the fact that even the Slovak partner did not assign any legal consequence to the note prohibiting the entry? This is also supported by Robert Fico’s comment, who publicly said that if László Sólyom had nevertheless decided to cross the border, Slovak law enforcement would have made no attempt to stop him by physical force.38 Could Luxembourg argue that the Slovak partner, too, interpreted the note as a symbolic message without legal consequences, and therefore a real conflict between the rights flowing from EU citizenship and international law could not have arisen even if the Hungarian President decided to cross the border in the face of the diplomatic note?39 If we arrived at that conclusion, we would, indeed, be entitled to claim not only that there had been a “no case or controversy”, because László Sólyom turned back just in time, but also that the diplomatic note could not have formed the basis of judicial review, and therefore it truly would have been a ‘no case’ scenario. My view is that the fact that Robert Fico practically asked the authorities to ignore the existence of the diplomatic note, does not save the situation, since there was always a theoretical possibility that he could change his mind in the last moment and stand by the content of the note. For this reason, I think that the Court was not in the position to invoke the “no case” option by saying that there had been no border crossing and no new norms had been presented for Luxembourg to review. In the light of the above, the latter would be impossible to prove anyway. There were, however, two alternative courses, which would have enabled the Court to elegantly bypass the need to rule in the dispute, while also making it possible to steer well clear of the snags described in the first chapter. 8.5.2   The Missing Conferral of Competences It was the Advocate General, Yves Bot, himself who came up with a workable solution to the problem in his cleverly worded Opinion. He started out from the fact that, according to the principle of the conferral of competences laid down in the Treaty of Lisbon, the Union was only empowered to regulate issues for which the member states had conferred

38 . 39 The situation would have been different, had the legislator decided to codify the ban into law, for example by passing an act prohibiting the Hungarian head of state to cross the borders on 21 August and other dates sensitive from the point of view of Slovakian history. In this case it would probably have been insufficient to refer to the fact that the prime minister or other leading statesperson called for non-execution of the law. In such cases the potentiality of the threat would have been sufficient for the determination of a breach of EU law – unless of course the Court found some other ways out instead of going into the merits. Alternatives are discussed infra.

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8  Is László Sólyom a European Citizen? Hungary versus Slovak Republic the competence.40 Since, however, the member states do not regulate the issue of the heads of states’ entry to the territories of other member states, this competence stays with the member countries. Unlike the Court, the Advocate General made a distinction between an official visit and a private trip: if László Sólyom had wished to go to Révkomárom as an EU citizen, the situation would have been different, but since according to the Advocate General he travelled in the official capacity of the head of the Hungarian state, he was bound by the rules of diplomatic relations, which were outside the competences of the EU. According to his incisive reasoning, this case was about diplomatic relations, rather than the free movement of individuals, and therefore the EU did not have the competence to settle it. However, the Advocate General’s opinion also has the potential of opening up a Pandora’s box. How many more areas could there be still, where the instance of an EU citizen crossing one of the EU’s internal borders, or even a Schengen border, cannot be construed as an issue of the EU citizens’ freedom of movement? The Court’s judgment did not adopt the Advocate General’s argument, perhaps because he had taken a very firm line on a politically highly charged issue, that is to say, on the question whether the law of diplomatic relations, which is at the core of the member states’ national sovereignty, can be overwritten by EU law, thus also reviving the debate on the extent, to which the law is a suitable tool for settling diplomatic disputes, or in the final analysis, political controversies.41 8.5.3    The Political Question Even the unpleasantness arising from the announcement of the lack of conferral of competences could have been avoided, had the Court stated openly what this case was really about: the Court was in fact unwilling to render a diplomatic conflict between two member states subject to EU law. Luxembourg could have taken inspiration from the US “political question doctrine”,42 according to which the US courts agree to show self-restraint by not questioning sensitive issues in the areas of foreign politics and international relations. In the Union legal order, it is the institutional balance between the European Parliament, the Council and the Commission that ensures that three distinct, potentially conflicting interests are taken into account: that of individual Union citizens, the sovereign member states and the supranational sui generis entity, the European Union. Judicial scrutiny is capable of adding to one or the other dimension, but most importantly for the present

40 TEU, Art. 5 Section (2), see note 6. 41 N. Nic Shuibhne, “Editorial: ‘And those who look only to the past or the present are certain to miss the future”, 2 European Law Review, 2012, pp. 115-116. 42 US Supreme Court, Marbury v. Madison, 5 U.S. 137 (1803), Baker v. Carr, 369 U.S. 186 (1962).

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Petra Bárd analysis, it is the ultimate safeguard of rights, including rights flowing from Union citizenship. As the development of European citizenship has shown, the Court as “one of the main engines of European integration”,43 was able to turn “citizenship lite”44 into a concept that came closer to the ideal of being the “fundamental status of nationals of the Member States”45 which may indeed reflect the shared values of a European demos.46 One shall also trust the Court to be able to recognize once a subject matter is ill-suited to judicial review. As to what it is precisely that turns a problem that constitutes the basis of a legal procedure into a “political question”, we must see that it is something for the Court to determine; the US experiences show that it requires a system of criteria broad enough to provide sufficient manoeuvring space for the courts. At the same time, the judges can view this room of manoeuvre as an opportunity to avoid ruling in difficult cases with even a hint of political sensitivity. The Luxembourg Court may have tried to dodge the very possibility of such an accusation, but the European solution they opted for is hardly less problematic: on the contrary, it uses a questionable legal argument and risks undermining the consistent European Union legal order with a dubious reasoning just to conceal the underlying motive for the judgment,47 which is none other than a desire to avoid considering the merit of cases that involve diplomatic conflicts between member states, or “political questions” in the language of the US doctrine.

43 J. Shaw, ‘Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism’, in P. Craig & G. de Búrca (eds.), Evolution of EU Law, Oxford University Press, Oxford, 2011, pp. 575-609, at p. 581. 44 Ibid., p. 581. 45 As desired in Grzelczyk first: “Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for.” (Case C-184/99, Grzelczyk (2001), para. 31) In a recent set of case law the Court diverted European citizenship towards a “Grundfreiheit ohne Markt” to some extent detaching Union citizenship from the exercise of free movement as far as genuine enjoyment of the substance of citizenship rights would be hampered. Case C-135/08, Janko Rottmann, Case C-34/09 Ruiz Zambrano, Case C-434/09, McCarthy, Case C-256/11, Dereci See also, F. Wollenschläger, ‘A New Fundamental Freedom beyond Market Integration: Union Citizenship and its Dynamics for Shifting the Economic Paradigm of European Integration’, 1 European Law Journal 17, 2011, pp. 1-34 or the article by Laura Gyeney in the present volume. 46 J.H.H Weiler, ‘To be a European citizen – Eros and civilization’, 4 Journal of European Public Policy 4, 1997, pp. 459-519. 47 For another recent example, when the Court’s “attention is devoted to one particular hazard [and too easily] falls into another”, see J. Tomkin, ‘Contradiction, Circumvention and Conceptual Gymnastics: The Impact of the Adoption of the ESM Treaty on the State of European Democracy’, 14 German Law Journal 2013, pp. 169-190.

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Part III  Developments in International Law

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9

International Law at the European Court of Justice: A Self-Contained Regime or an Escher Triangle

Tamas Vince Ádány* The relation between international law and domestic law has long troubled lawyers, who ever had to investigate such questions. When the law of the European Communities and subsequently that of the Union entered the scene, a new layer of this old problem appeared. Regardless of the monist or dualist approach, followed by the member states in relation to international law, European law has been afforded special treatment in most national constitutions. EU law text books usually explain this special character of Union law along the lines of the Van Gend en Loos case, where the Court ruled, that “the Community constitutes a new legal order of international law”.1 In the spotlight of the general media, the Court was repeatedly faced with the problem stemming from the conflict between fundamental EU norms and practically intransgressible international norms (UNSC resolutions) in the series of the Kadi and Al Barakat cases.2 Recently, the Court handed down a judgment in a case involving a failed visit of the then incumbent President of Hungary to Slovakia.3 It is very likely, that this event – ­causing a temporary tension between two small Eastern-Central European countries – will long be forgotten, when this judgment may still be cited as a reference on the relationship between European and international law, since in this case the Court ruled, that “EU law must be interpreted in the light of the relevant rules of international law, since international law is part of the European Union legal order and is binding on the institutions”.4 Together, the Van Gend en Loos and the Sólyom Judgments not only strengthen the selfcontained nature of EU law,5 but also unfold to a picture resembling the fascinating works * Ph.D., senior lecturer in international law, Peter Pazmany Catholic University, Budapest. 1 Judgment of 5 February 1963 in Case 26/52, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v. Netherlands Inland Revenue Administration [1963] ECR 1, at p. 12. 2 Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat International Foundation v. Council and Commission [2008] ECR I-6351. 3 Judgment of the Court (Grand Chamber) of 16 October 2012 in C-364/10, Hungary v. Slovakia, not yet published [hereinafter: Judgment C-364/10]. 4 Emphasis added, Judgment C-364/10, rec. 44 . 5 Fragmentation of International Law: Difficulties Arising From The Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Martti Koskenniemi, UNGA, A/CN.4/L.682 13 April 2006, p. 68 para. 129.

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Tamas Vince Ádány of Maurits Cornelis Escher: EU law is a new legal order, a lex specialis of international law, yet international law is part of this “new legal order”, and must be taken into account in the course of the interpretation thereof. Against this backdrop, it is hard to decide, whether European or international rules should be followed in case of a collision between the two systems. In this respect, it is futile and meaningless to expect a decision on the question, whether the EU follows a monist or dualist approach vis-à-vis international law, mainly because today this doctrinal dichotomy seems somewhat outdated and more practical perspectives are emerging. Nevertheless, the identification of at least a rule of thumb would have been indispensable for national courts, on what to do when they face a collision between an international and a European legal obligation of their state. Following a decade-long debate, the Kadi cases clarified that the EU protects its fundamental rights even against interferences stemming from international law. Some authors claimed that the question to be decided in the Sólyom case should have been whether the free movement of persons is such a fundamental right or not.6 In its recent decision, the ECJ (European Court of Justice) relied on a long-standing international custom, identifying an implicit exception to the free movement of persons and stating that this freedom does not include heads of states on official visits. This article argues that although a similar delimitation between regulatory fields of international law and those of EU law would be desirable, in the present case the ECJ made a mistake, when it relied on the existence of an international (customary) regulation on the entry of heads of states to other states’ territories. Proving the non-existence of a rule is nigh impossible, therefore it is attempted here to identify the rules of international law relevant to the facts of the present case, starting from the treaty-based law cited by the parties, while also examining certain elements of international customary law.

9.1 Treaty-Based International Law The first head of the Hungarian complaint in the Sólyom case was rejected as unfounded, mainly because “The status of Head of State therefore has a specific character, resulting from the fact that it is governed by international law, with the consequence that the conduct of such a person internationally, such as that person’s presence in another State, comes under that law, in particular the law governing diplomatic relations.”7 This assumption remains a hypothesis in the judgment, as the ECJ judgment has not elaborated on the content of this relevant rule of international law, however it contented, that by its very

6 N. Nic Shuibhne, ‘And those who look only to the past or the present are certain to miss the future’, 37 ­European Law Review, 2012, pp. 115-116. 7 Judgment C-364/10, 49.

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9  International Law at the European Court of Justice existence it forms an exception to the rule of free movement of persons as outlined in the Treaty on the European Union:8 Accordingly, the fact that a Union citizen performs the duties of a Head of State is such as to justify a limitation, based on international law, on the exercise of the right of free movement conferred on that person by Article 21 TFEU.9 Although the judgment implies that several multilateral treaties and customary rules are applicable to the case, the Court only referred to the 1973 New York Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents as an example thereof.10 Seeking other possible examples, it becomes obvious that this finding of the Court correlates with the argument of the Slovak Republic maintaining that the diplomatic relations of the member states of the European Union are still governed by international law, and that this law applies to the movement of Heads of States within the Union.11 This argument was also mentioned by the Advocate General, whose opinion also offers some further examples cited by Slovakia.12 The rules relevant in that regard would be “the Vienna Convention of 18 April 1961 on Diplomatic Relations (‘the Vienna Convention’), the Vienna Convention of 24 April 1963 on Consular Relations, the Vienna Convention of 14 March 1975 on the Representation of States in their Relations with International Organisations of a Universal Character, the Convention on Special Missions adopted by the United Nations General Assembly on 8 December 1969 (‘the Convention on Special Missions’) and the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, attached to General Assembly Resolution 3166 (XXVIII) of 14 December 1973”.13 While these instruments of international law undoubtedly stand out as valid and relevant rules on diplomatic (and consular) relations, relevant also in the relationship between the member states of the European Union, a deeper look reveals that the applicability of this law to every visit conducted by Heads of States remains more than questionable. It is possibly for this reason that the Court did not reiterate several elements of this list in the final judgment. The 1961 Vienna Convention is applicable to permanent missions 8 There are a few principles accepted also in EU law that could support this conclusion, from good faith performance of obligations to the principle of loyalty; however, these would also not offer a comforting solution to the dilemma emerging from a conflict between international and EU law. 9 Judgment C-364/10, 51. 10 Judgment C-364/10, 47. 11 Judgment C-364/10, 34. 12 Advocate General Yves Bot in C-364/10, Hungary v. Slovakia, not yet published. [Hereinafter: Opinion C-364/10], 34, n. 6. 13 Ibid.

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Tamas Vince Ádány only,14 therefore it can only remotely be related to the facts of the present case;15 the nature and characteristics of consular relations are so very different from head of state visits, that any serious connection between the 1963 Convention and the present case seems utterly impossible; and, since no international organization of universal character has ever been involved in the events or even in the dispute resolution, the examination of the 1975 Convention seems unavailing as well. The applicability and the actual application of the remaining two elements of the list – the 1969 Convention on Special Missions and the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons – demand far more attention. Based on the subject matter and the actual events, the most important convention for the evaluation of the case could be the 1969 Convention on Special Missions. However, at the time of the events only one of the two states concerned (Hungary) had consented to be bound by this instrument.16 Consequently – as a treaty – it would not be applicable; nevertheless, as a working hypothesis it is presumed here that it is of customary character.17 This way, the application of its rules to the present case might be possible, yet not as a treaty, but as customary law, and shall therefore be discussed below in the respective section. Therefore, the 1973 New York Convention remains the only applicable international treaty from the impressive list above. The focus and objective of this convention is clearly explained by the preamble: first it reiterates, that the general goal of diplomatic relations corresponds to the objectives of the UN Charter, namely “maintenance of international peace and the promotion of friendly relations and cooperation among States”. This convention is designed to respond to the challenge, “that crimes against diplomatic agents and other internationally protected persons jeopardizing the safety of these persons create a serious threat to the maintenance of normal international relations which are necessary for cooperation among States”. Consequently, this instrument regulates neither immunities, diplomatic relations per se, nor the commencement of such missions, but is much rather an important safeguard for the safe and secure administration of inter-state cooperation. Against this background, the convention imposes an obligation on states to protect a “Head of State, [. . .] a Head of Government or a Minister for Foreign Affairs, whenever any such person is in a foreign State, as well as members of his family who accompany

14 Art. 1 (a)-(b) of the 1969 UN Convention on Special Missions, United Nations Treaty Series, 1984, p. 231. Sir I. Roberts (ed.), Satow’s, Diplomatic Practice, 9th edition, Oxford University Press, Oxford 2009, p. 188, section 13.4 [Hereinafter: Satow’s Diplomatic Practice]. 15 Satow’s Diplomatic Practice, p. 175, Section 12.1. 16 See UNTC website at . 17 See M.A. Summers, ‘Diplomatic Immunity Ratione Personae’, 16 Michigan State Journal of International Law 2007-2008, pp. 469-470.

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9  International Law at the European Court of Justice him”;18 or any other representative or official of a state or an international organization,19 from certain criminal activities, as set out by Article 2 of the convention, which must be made punishable by the state parties. Article 2(3), however, makes it clear, that beyond these acts, an international obligation of states exists to prevent any other attacks on the person, freedom or dignity of an internationally protected individual. It seems, that the “Big Three” (Head of State, Head of Government and Minister of Foreign Affairs) enjoy a somewhat wider protection, covering their family members as well. It is also noteworthy, that the fact or level of protection is independent from the nature of the visit: as there is no restriction in the text of the convention regarding official, private or other visits, it seems that protection must be granted in any case when an internationally protected person happens to be abroad. According to treaty-based law, the conclusion for the present case can only be that a Head of State is entitled to be protected, and the territorial state is under an obligation to protect such person, regardless of the nature of the visit. This protection is owed to the person, the liberty and also the dignity of the protected persons, and demands taking every appropriate measure to that end. Appropriate measures in the view of this author must be sufficient to actually safeguard the person, the liberty and the dignity of foreign state officials. Considering the threats this convention is to respond to, it seems rather obvious that in some cases an appropriate measure protecting the person may to some extent adversely affect the liberty or the dignity of such person (e.g. when shots are fired in a room, where the protected person is also threatened, the retreat is possibly better if it is quick, than slow, but dignified). Sometimes, therefore, a measure can be appropriate, in case it protects the person, yet somewhat hampers the dignity of a visiting Head of State. Nevertheless, as a main rule, the duty of the host state is to seek the protection of all three values, i.e. the person, including his or her liberty and dignity. Although the existence of some margin of appreciation would be reasonable in the realization of the appropriate protection, direct deprivation of liberty or dignity is clearly unacceptable. However, this question was not raised by the parties in the present dispute, therefore it was not thoroughly examined, how rescinding an entry permit from a Head of State already en route to the country affects the dignity of that person and whether it is an appropriate measure or not. The 1973 Convention remains silent on a number of issues debated in the present case: it makes no mention of immunities of visiting state officials, nor does it regulate the commencement or termination of such missions.

18 Art. 1(1) a) of the 1973 UN Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, United Nations Treaty Series, 1989, p. 473. 19 Art. 1(1) b) of the 1973 UN Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, United Nations Treaty Series, 1989, p. 473.

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Tamas Vince Ádány Some reference had been made during the case also to the 2004 UN Convention on Jurisdictional Immunities of States and Their Property. This convention has not yet entered into force, and its application as customary law to the present case is highly doubtful, although it is also a product of a lengthy codification effort of the International Law Commission. The preparatory materials of the convention reveal that the ILC (International Law Commission) had found a divided state practice regarding the general principles of state immunity: “In undertaking the second reading of the draft articles, the Commission agreed with the Special Rapporteur, that it should avoid entering yet again into a doctrinal debate on the general principles of State immunity, which had been extensively debated in the Commission and on which the views of members remained divided. Instead, the Commission should concentrate its discussion on individual articles, so as to arrive at a consensus as to what kind of activities of the State should enjoy immunity and what kind of activities should not enjoy immunity from the jurisdiction of another State. This, in the view of the Commission, was the only pragmatic way “to prepare a convention which would command wide support by the international community.”20 Thus failing to establish a single position even within the ILC, it had focused on immunities for certain acts since 1989.21 As for the relevance of the contents, the commentaries attached to the final ILC draft of the convention highlight that the text primarily refers to jurisdictional immunities involving foreign judicial proceedings,22 which was not a factual element in the recent debate between Hungary and Slovakia. Furthermore, the convention expressly excludes its application regarding the personal immunities of heads of states.23 9.2 Customary International Law on the Entry of Diplomatic Missions The evolution of a customary rule of international law is based on a long-standing and consequent state practice. As some authors have rightly expressed, in case of head of state visits that practice is relatively scarce, firstly because there are only about 200 persons at a time posing as possible subjects to that practice worldwide, and the vast majority of their foreign travels – private or public – are conducted without any legal dispute arising therefrom.24 The author of the present work has no knowledge of any previous case, where the entry of a special mission was denied and the head of the mission could have relied on other grounds granting him entry, such as the free movement of European citizens. The 20 21 22 23 24

Yearbook of the International Law Commission [YILC], 1989 Vol. II, Part 2, p. 98, para. 406. YILC 1989, Vol. II, Part 2, para. 406. YILC 1991, p. 13. paras 2-3. Art. 3(2) of 2004 Convention on Jurisdictional Immunities of States and Their Property, A/59/508. A. Watts, The Legal Position of Heads of States, Heads of Governments and Foreign Ministers, in Recueil des cours, Hague Academy of International Law, Vol. 247, 1994. p. 19.

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9  International Law at the European Court of Justice existence of a well-established customary law on the entry of non-permanent diplomatic missions to the territory of the host state can be contested, because such a scarce international practice is not sufficient to evidence a long-standing, consistent universal practice, not to mention doubts related to the necessary opinio iuris. Notably, this only holds true for the denial of entry: customary law is commonly and widely discussed for the period when the mission already sojourns on the territory of the host state. In spite of the above concerns, there are several traces of a tendency towards an evolving international customary law in this field.25 The customary law of head of state visits can be found in the form of codified rules in certain conventions, not consented to by the parties to the present dispute; a private codification is also available from the Institute de Droit International; furthermore, international legal doctrine and the judicial practice can also be relied on as evidence for the existence of such customary rules. As noted above, the most important instrument regulating non-permanent diplomatic missions between states is the 1969 New York Convention on Special Diplomatic Missions. The convention follows closely the respective draft issued by the International Law Commission; however, it enjoys limited support by states.26 For the purposes of this paper, its customary character is provisionally accepted, in order to have an opportunity to discuss the contents of this convention, which would otherwise be inapplicable to both Slovakia and Hungary. The temporary nature of these special missions result in major differences compared with permanent missions, as regulated by the 1961 Vienna Convention. As the opinion of the Advocate General rightly stated, both types of missions are based on a consensus between two states to send and – respectively – to host the mission: “This reference to ‘consent’ is found in a number of international conventions, in particular in Article 2 of the 1961 Vienna Convention, Article 2(1) and (2) of the Vienna Convention of 24 April 1963 on Consular Relations and Articles 1(a), 2 to 6 and 18 of the Convention on Special Missions.”27 The initiative is usually taken by the sending state and the host state gives its consent to the mission in both cases. The opinion of the Advocate General however fails to take notice of the fact that the actual form (and to some extent the content) of such consent by the host state is profoundly different in case of a special mission. In case of permanent missions, the host state agrees to the members of the mission,28 while in the case of special missions such regulation cannot be found in the relevant legal materials. On the contrary, the commentaries to the 1969 Convention by the International Law Commission expressly mention, that the members of a special mission are appointed by the sending state,29 subject 25 26 27 28

Watts 1994, p. 36. Satow’s Diplomatic Practice, p. 188. C-364/10 Opinion, 57, n. 16. See Arts. 2 and 4 of the 1961 Vienna Convention on Diplomatic Relations, United Nations Treaty Series, 1964, p. 95. 29 YILC, 1967, Vol. II, pp. 350-351, para. (1) (Commentary to Art. 8).

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Tamas Vince Ádány to a tacit consent by the host state. (Although the commentaries uphold that more formal procedures can also be instated.)30 This leads us to the conclusion that in the case of special missions, the host state agrees to the fact of the mission, and objections regarding the personnel of these missions must be expressed explicitly. The Institute of International Law accepted a resolution at its 2001 Vancouver Session on the “Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law”. The rationale behind this resolution was the increasing number of cases, where courts intended to exercise jurisdiction over foreign heads of states.31 The policy of the drafters originally sought “to facilitate and protect international communication between governments and to that end to provide for the Head of State, as the principal representative of the state, such special treatment as necessary for the exercise of the functions and the fulfilment of the responsibilities of a Head of State in an independent and effective manner; and secondly, to restrict such immunities to the minimum necessary to that representative role so as to leave the Head of State subject to private law in the same way as a private person and so as not to deprive creditors and other private persons of legal remedies against the holder of the office of Head of State”.32 The text of the resolution contains both de lege lata and de lege ferenda elements.33 Even though the resolution is purportedly aimed at the development of law in some aspects, it still excludes its application in relation to the entry to the territory of another state, when it specifies, that “nothing in this Resolution affects any right of, or obligation incumbent upon, a State to grant or refuse to the Head of a foreign State access to, or sojourn on, its territory.”34 This regulation means firstly, that international law does not impose a right to entry for heads of states to enter the territories of other countries. Second, the wording of the resolution mentions possible obligations incumbent upon states. In this latter context, this rule of the resolution intends to secure that such obligations remain unaffected. This declaration further strengthens the opening assumption of this section, namely, that international customary law on head of state visits does not regulate at a universal level how states allow entry into their territory. Meanwhile, it also supports that customary international law of head of state visits intended to leave a field of action for states to undertake obligations to grant access to or sojourn on their territory for foreign nationals, including

30 While a formal procedure is also possible. See, YILC, 1967, Vol. II, p. 349, para. (2). 31 H. Fox, ‘ The Resolution of the Institute of International Law on the Immunities of Heads of State and ­Government’, 51 International and Comparative Law Quarterly 1, 2002 p. 119. 32 13th Commission, Preliminary Report of Rapporteur, para. 16, ADI 2001, I-Vancouver, cited by Fox 2002, p. 119. A third head of policy regarding assets was also accepted during the work, but that aspect of the resolution can be disregarded here. See ibid. 33 Fox 2002, pp. 124-125. 34 Institute of International Law, Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law, Art. 10. published at .

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9  International Law at the European Court of Justice heads of states. Clearly, the free movement of persons within the European Union is a manifest example of such obligations. Previous international judicial practice is available, but only mutatis mutandis. If one looks for cases involving actions or accountability of state officials abroad, including heads of states, the practice of international courts and various national forums is relatively well established: decisions regarding Augosto Pinochet35 or Charles Taylor36 have all had to rule on actions of foreign heads of states. The position of foreign officials was discussed more widely in the Lotus,37 the Tellini38 or in the Yerodia39 cases. None of these decisions or judgments had to deal with the entry of the head of state to a foreign territory, neither of the involved heads of states were European citizens, who would have enjoyed the free movement of persons, if not for their special position. International judicial practice yet again supports the stay of foreign state officials, and not their entry to the territory.

9.3 Decisive Elements of the Position of Heads of States Abroad: Acts or Visits? Many authors agree that heads of states can pay different visits to foreign countries, but their concurrence ends here. Instead of a centuries old, long-standing single state practice, even a few decades ago, it was upheld, that the regulation in this field is divided, and therefore allows for several possible conclusions.40 In an attempt to establish a clear-cut typology, the first impression one gets is the apparent lack of a profound mainstream opinion, despite certain widely accepted cornerstones. Although virtually every legal instrument and scholar applies different classifications – sometimes even the categories applied are distinct – in most cases, at least an implicit distinction between official and private visits is made. International legal instruments fail to offer a definition of private visits.

35 Regina v. Bartle and the Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte (No. 3) [1999] All ER 97. 36 The Prosecutor v. Charles Ghankay Taylor, SCSL-2003-01-I. Heads of States immunities are also discussed in the amicus curiae opinions of Diane F. Orentlicher. (SCSL-2003-01-1 1643-1668) and Phillipe Sands (SCSL2003-01-1 1669-1717). 37 The S.S. Lotus Case P. C.I.J. Ser. A, No. 10, p. 4 (1927). 38 Interpretation of certain Articles of the Covenant and other Questions of International Law, Report of the Special Commission of Jurists, League of Nations Official Journal, 5th Year, No. 4 (April 1924) p. 523. 39 Case of the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) ICJ Reports, 2002, p. 3. 40 F. Przetacznik, Protection of officials of foreign states according to international law, Martinus Nijhoff, The Hague, 1983, p. 3.

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Tamas Vince Ádány Undoubtedly, the right to send diplomatic missions does not create any obligation on states to actually host such missions; therefore diplomatic missions are based on mutual consent, however different the content and form of such consent may be. Still, there is no evidence, that every visit of a state official abroad would be a diplomatic visit. A difference between diplomatic visits and other official visits is mentioned in the 1969 UN Convention on Special Missions.41 It may be presumed, that in some cases the territorial state – where the visit takes place – does not become a stricto sensu host state.42 In such cases the visiting official does not meet the territorial sovereign more than any other visiting national of his country would. As well regulated examples, commonplace visits to cities serving as seats of international organizations can be mentioned. This means that there is a ‘gray zone’ in the black and white picture of diplomatic/official versus private visits, but even the terms describing this gray zone vary from one source to another. A point of confusion can be that according to the League of Nations report in the Tellini case, the obligation of the host state to protect is rooted in the public character of the visiting head of state: “The recognised public character of a foreigner and the circumstances in which he is present in its territory entail upon the State a corresponding duty of special vigilance on his behalf.”43 Whatever the reasons may be for the foreign head of state to visit another country, today it cannot be doubted, that this right to be protected remains intact.44 For reasons of common sense, in order to secure this protection, arrangements are usually made with the host state, and these arrangements are normally made using existing diplomatic channels: such agreements however do not necessarily render a visit ‘diplomatic’. The special public character is permanently borne by the head of a state while in office; therefore the right to be protected does not evaporate even during absolutely private visits, such as holidays or medical treatments. It is therefore reasonable, that the nature of the visit is not determined by the official character of the visiting head of state. The decisive factor for the nature of the visit can be much rather the attitude or involvement of the territorial state: if a representative of a sovereign meets the representative of another sovereign, the visit is undoubtedly diplomatic, arranged and consented to accordingly. However, if the host sovereign is missing, because

41 YILC, 1967, Vol. II, p. 348, para. (3) (i). 42 Ibid., para. (3) (ii). 43 Interpretation of certain Articles of the Covenant and other Questions of International Law, Report of the Special Commission of Jurists, League of Nations Official Journal, No. 4 (April 1924), p. 524 . 44 See “whenever [a head of state] is in a foreign State”: Art. 1(1) a) of the 1973 UN Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, United Nations Treaty Series, 1989, p. 473, emphasis added.

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9  International Law at the European Court of Justice the host of the visit is an international organisation, an NGO or a business association, the visit must fall within a different category, coming closer to the category of private visits. There are three possible conclusions that may be drawn at this point: either there are more categories of head of state visits than mere “official or private”; or official visits equal diplomatic visits, where both the visiting and the host state meet in equally sovereign capacities, or there are two types of visits, and if not expressively mentioned differently, it is an official visit, due to the function of the head of state. The ECJ seemed to accept this third conclusion, while for the author of the present paper the examined international materials suggest, that the first conclusion must be correct. Thus a head of state may visit another state in the course of – a diplomatic visit, where to equal sovereigns meet; – an official visit, where the head of state acts in an official capacity in a foreign territory, without meeting the host sovereign; – a private visit, where the sovereigns involved from both states deal with the protection of the visiting head of state only. Interestingly enough, this controversial typology is bypassed in international customary law. As it has been noted above several times, most cases refer to situations when the visiting Head of State already stays in foreign territory, therefore the relevant questions for most international legal instruments and academic work are those in connection with immunities enjoyed in relation to certain acts. From this perspective, the relevance of the nature of the visit is considerably lowered: it remains an important, yet definitely not exclusive element for the classification of the particular acts.45 Affairs of the home state may demand immediate official acts of a head of state, spending his or her holiday abroad;46 furthermore, even during an official visit, some private programmes may be arranged or private measures may be taken.47 In compliance with the inherent logic of the law on diplomatic relations, the rules therefore focus on the procedural immunities enjoyed in relation to certain acts, instead of establishing a dogmatically clear terminology on official, private or other visits.

45 Przetacznik 1983, pp. 15-16. 46 Watts 1994, p. 73. 47 Xi Jinping, at that time Vice President of China, in February visited the United States, where he met ­President Barack Obama, visited a business forum in Los Angeles and also Muscatine, a small town in Iowa, where he briefly stayed with the family in 1985. See Profile: Xi Jinping, BBC News, 7 November 2012 (. In 2012, the Duke and Duchess of Cambridge were touring South Asia on occasion of the Diamond Jubilee, while through legal counsel they started to take private legal actions against a French magazine for a blatant intrusion of their privacy. See K.Willsher, ‘Kate and William take legal action against Closer over topless photos’, at Guardian.co.uk, 17 September 2012 .

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Tamas Vince Ádány Satow’s Diplomatic Practice distinguishes between personal and functional immunities of the head of state: “the head of state acting ratione materiae, as part of a legal entity, the state, and the head of state acting as an individual, ratione persona to whom a high degree of personal privilege and immunity is granted.”48 This dichotomy is the reason for the 2004 Convention not mentioning acts of a head of state not of a public character. The typology applied in this treatise defines official and non-official visits: Broadly all states recognize an obligation to ensure due respect towards and the protection, inviolability and immunity of the head of state when in office, with compliance particularly rigorous on the occasion of an official visit of a head of state to another State.49 Therefore, the right to enjoy protection is without prejudice to the nature of the visit – ­although protection of visiting heads of states is an obligation of the organs of the host state, this involvement does not automatically render a visit official, contrary to the implicit conclusion of the opinion of the Advocate General: Moreover, that is a view that ignores the specific character of the position of Heads of State, which lies essentially in their capacity as the supreme organ of the State, representing, personifying and committing the State at international level. In other words, that special position implies that, when a Head of State travels on a public visit, he can never do so on an entirely personal basis in so far as it is primarily the community he represents that is welcomed by the State receiving him.50 Although there is an independent title in Satow’s Diplomatic Practice called “Official Visits in the Territory of Another State”, it contains of only one paragraph, and it does not define official visits of heads of states. The position of heads of states under international law is more thoroughly discussed in the work of Sir Arthur Watts, published by the Hague Academy of International Law in 1994. For the purposes of discussing state practice on procedural immunities of heads of states, various acts are classified as either 48 Satow’s Diplomatic Practice, p. 176. This distinction of the various grounds of immunity persist in international literature. For another example see S. Wirth, ‘Immunity for Core Crimes? The ICJ’s Judgment in the Congo v. Belgium Case’, 13 European Journal of International Law, 2002, p. 4. In his views ratione materiae immunities cover only official acts, but these are due also after leaving the office, while ratione personae immunities cover every act, but it is only enjoyed by the highest ranking officials of a state, and only during the period they remain in such functions. 49 Satow’s Diplomatic Practice, p. 178. 50 Opinion C-364/10 54.

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9  International Law at the European Court of Justice – official and sovereign acts; – official, but non-sovereign acts; – or non-official (private) acts. Official and sovereign acts correspond to situations subject to immunities prescribed by international law.51 Official, but non-sovereign acts refer to “commercial” acts – where “commercial” is a modifier used out of convenience, since other acts of a non-commercial character may fall within this category. These semi-official acts could cover those actions of heads of states abroad, where they exercise their domestic official functions abroad, without actually meeting the sovereign of the territorial state. This 1994 work conceived a tendency of international law towards a situation, where states (and heads of states) would not enjoy immunities in such cases, yet a long-standing custom has not yet evolved in this regard.52 The work of Sir Arthur Watts is a rare example, where the right to entry is also considered. As for a head of state on a private visit, he wrote: “His position in international law is in such circumstances at best uncertain. When on a private visit the Head of State will, by definition, not be acting as the official representative of a sovereign State or performing official duties on its behalf. He may, indeed, be refused entry at the outset”53 It is also noteworthy, that some extent of official character remains with a head of a foreign state, even when on a private visit: “[. . .] the generally representative character of a Head of State means that he is at all times to some extent representing his State.”54 Advocate General Bot argued, that a private visit equals an incognito visit, however Sir Arthur Watts classified incognito visits as a special case within private visits,55 mentioning that even an official visit can remain incognito. In agreement with this latter position, the conclusion must be that the incognito character of the visit is insufficient and irrelevant for the decision regarding the general character of the visit; this may be the reason why the judgment of the court in the end did not rely on this argument of the Advocate General. Widely discussed international case law also focuses on certain acts, and not necessarily on the nature of the visits. In this context, apparent similarities present themselves with diplomatic immunities, since the widely discussed examples of previous years are mostly related to certain criminal acts, where immunity is considered absolute, subject to rare

51 52 53 54 55

Watts 1994, p. 58. Ibid. p. 61. Ibid. p. 73. Ibid. Ibid., p. 75: “A particular problem which sometimes arises occurs when a Head of State visits another State not only privately but also incognito – a possibility which, indeed, may also occur when a Head of State is on official business, as recent events involving secret diplomacy have shown.”

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Tamas Vince Ádány exceptions foreseen under international law.56 The mainstream position today upholds that Heads of States enjoy full immunity from the criminal jurisdiction of other states, while civil or administrative immunities do exhibit some differences. In this regard it is the character of certain acts that becomes more relevant, and not the nature of the visit. Theoretically speaking, the question of jurisdiction or immunity may sometimes even emerge without an actual visit. Immunity in this aspect is understood as an exception from jurisdiction.57 Generally, this means that in lack of jurisdiction, the question of immunities is not perceivable.

9.4 Conclusions The ECJ worked for decades towards enhancing the application of EU law and widening the competence of the institutions of European integration – from this perspective, the Judgment in the Sólyom case may become a silent landmark. It is clear, that the judges found that the facts of the case should not be dealt with within the framework of the ­European Union, that this dispute between Hungary and Slovakia marks a frontier, which EU law does not intend to cross.58 In the deliberation of the case, the ECJ satisfied itself, that standing international law is applicable to the facts of the case,59 based on the longstanding customary character of the law of diplomatic relations. The mistake made in this regard is a mistake in the actual application of international law. Undoubtedly, the law of diplomatic relations is still applicable between two member states of the European Union: nevertheless, all but one instrument cited in the present case are either irrelevant (the 1961 or the 1963 Vienna Conventions) or inapplicable (1969 UN Convention on Special Missions). The single international convention, that can be applied – the 1973 UN Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents – has no rule on the right to entry. The reason for this mistake was the ECJ and the parties examined the wrong questions of international law, because the facts of the case never involved immunities. Immunities are regulated under customary law, but they can be interpreted only in relation to certain

56 In case of an international criminal, tribunal launches a proceeding against a head of state. 57 See also, YILC, 1979, Vol II, p. 238, para. (53): “jurisdictional immunities” presupposes the existence of valid or competent jurisdiction. 58 N. Nic Shuibhne, ‘And those who look only to the past or the present are certain to miss the future’, 37 European Law Review, 2012, pp. 115-116. 59 “The status of Head of State therefore has a specific character, resulting from the fact that it is governed by international law, with the consequence that the conduct of such a person internationally, such as that person’s presence in another State, comes under that law, in particular the law governing diplomatic relations.” Judgment C-364/10 49 and 51.

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9  International Law at the European Court of Justice acts; and no such acts were subject to the debate. The right to entry, the nature of visits are hardly mentioned in contemporary international law or even by legal doctrine. Furthermore, the conclusion reached by the court, that the special position of heads of states under international law results in a situation where they enjoy less rights60 than any other Union citizen is also mistaken. Diplomatic immunities are added to the position enjoyed by the holder of such offices. The preparatory materials of the UN Convention on Special Missions confirm, that “[. . .] rank may confer on the person holding it exceptional facilities, privileges and immunities which he retains on becoming a member of a special mission.”61 The general reference to international law as part of the legal order of the European Union can lead to some absurd future interpretations of this judgment: the recent wording even seems to allow member states to opt out from EU obligations in the form of bilateral treaties with third parties. Instead of international law as such, the Court probably meant to refer to “common international obligations of member states”. The general reception of international law within the European Union can also mean that mistaken application thereof may be repeated in the future. Judges of member states, untrained in the monist tradition may face difficulties in the direct application of international law without due transformation. It may even be argued, that the ECJ forced the European judiciary to apply international law directly in the future. Absurd interpretations of this judgment can and must be filtered in the future by the ECJ. Nevertheless, the question remains, whether the international law-based argumentation – with its dubious validity – behind the decision was necessary at all? If the position of heads of states is regulated by international law, and Slovakia did not apply EU law, as the Court finally ruled, would it not have been better, if the Court had found the case inadmissible at the outset?

60 Judgment C-364/10 50. 61 YILC, 1967, Vol. 2, p. 359, para. (1) .

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10

Treaty Interpretation by Relying upon Other International Legal Norms

László Blutman* Professor Bruhács pointed out that the limited hierarchy in the structure of current international law is unable to balance the fragmentation of this legal order.1 The importance of this problem is indicated by the fact that the UN International Law Commission set up a study group to examine the fragmentation of international law.2 The actual structure of international law has, of course, numerous components that strengthen its systemic nature. In addition to the norms of ius cogens,3 such components include, inter alia, an ever more observable phenomenon in international case law, i.e. when international courts, for the purpose of interpreting treaty provisions, rely on other pieces of international legislation, and connect and seek concurrence between two or more pieces of legislation, even if they may be applicable on different fields of law. Needless to say, this practice raises numerous questions and problems. This chapter attempts to provide an overview of certain aspects of this matter.4

10.1 The Use of International Legal Norms as Support for Treaty Interpretation A fundamental problem any person seeking to interpret a legal norm has to face is finding a basis on which any meaning may be associated with the legal text at hand. Selecting the

*

Professor of International and European Law, University of Szeged (Hungary); LL.M (New York University, NY), Ph.D. (University of Szeged). 1 J. Bruhács, ‘A nemzetközi jog a XXI. szd. kezdetén’, Magyar Tudomány 7, 2007, p. 1578. 2 Official Records of the General Assembly, Fifty-fifth Session (2003), Supplement No. 10 (A/55/10) paras 407-435; Fifty-sixth Session (2004), Supplement No. 10 (A/56/10) paras 296-358.; Fifty-seventh Session (2005), Supplement No. 10 (A/57/10) paras 439-492, and see the detailed report of the Study Group: Fragmentation of international law: Difficulties arising from the diversification and expansion of international law. Report of the Study Group of the International Law Commission, A/CN.4/L.682. (hereinafter: UN Study Group). 3 Bruhács 2007, p. 1578. 4 This article focuses on the use of pieces of international legislation specifically. The issue of relying on ‘soft law’ norms to interpret international treaties may be examined separately and has already been covered elsewhere, see L. Blutman, ‘Nemzetközi soft law: hagyjuk dolgozni Occam borotváját’, Közjogi Szemle, 1, 2008, p. 28.

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László Blutman supports for legal interpretation and finding the appropriate grounds is of key importance in the course of interpreting international treaties. Such supports may include other pieces of international legislation, which – under certain conditions – may be relied on by international courts in the course of interpreting international treaties. International courts may have numerous reasons and grounds for applying another norm of international law to interpret a given treaty provision. (Such reasons and grounds may even intertwine in a given case.)5 Occasionally, a state measure may not be considered and evaluated without another legal norm with reference to, or on the basis of, which the state measure to be legally evaluated was implemented.6 International courts may have to face situations, where the most objective, and consequently, the most reliable and defendable support for interpreting a hardly definable general term or provision is another norm.7 In some cases, courts merely seek to ensure harmony between the treaty to be interpreted and other fields (or the entirety) of international law, thereby seeking to avoid the

5 The UN Study Group examining the problems of the fragmentation of international law specified three cases, on the basis of somewhat different criteria, where, in practice, international courts rely on an international legal norm in order to interpret a treaty provision: (1) whenever a treaty provision is unclear (2) or open-textured, or (3) when the terms used in the treaty have a recognized meaning in customary international law. Official Records of the General Assembly, Fifty-seventh Session (2005), Supplement No. 10 (A/57/10) para. 470, similarly C. McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’, 54 ICLQ 2005, p. 313 or D. French, ‘Treaty Interpretation and the Incorporation of Extraneous Legal Rules’, 55 ICLQ 2006, pp. 303-304. 6 In Csoszánszki, the European Court of Human Rights (ECtHR) had to decide whether, under Art. 5 ECHR (Convention for the Protection of Human Rights and Fundamental Freedoms – Rome, 1950, 213 U.N.T.S. 221) it qualified as the arbitrary deprivation of liberty when the administration of the punishment of a Hungarian citizen serving his prison sentence in Sweden was transferred to Hungary – against the will of the sentenced person – and the date of parole was consequently postponed for over one year due to different Hungarian regulations. As Sweden transferred the sentenced person on the basis of the Convention of the Transfer of Sentenced Persons (Strasbourg, 1983, 1496 U.N.T.S. 92) and the additional protocol thereto (Strasbourg, 1997, 2138 U.N.T.S. 244), it was inevitable for the Court to examine the provisions of these documents when interpreting the meaning of ‘arbitrary’ for the purpose of Art. 5 ECHR and with a view to the subject matter at hand. Csoszánszki v. Sweden (Appl. No. 22318/02), Admissibility Decision of 27 June 2006.; for the same problem, see Szabó v. Sweden (Appl. No. 28578/03), Admissibility Decision of 27 June 2006; source (of all the ECHR cases discussed here): (last accessed 11 February 2013). 7 In Glass, the Court had to decide whether medical treatment applied against the objection by the statutory representative of a patient violated the right to private life, and in case of an affirmative decision, if it can be excused under Art. 8(2) ECHR. The Court used the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Oviedo, 1997, 2137 U.N.T.S. 171), to decide the question, which, of course, contained more detailed rules for considering the facts of the case than those laid down in Art. 8 ECHR on the general protection of private life. Glass v. the United Kingdom (Appl. No. 61827/00), Judgment of 9 March 2004, Reports of Judgments and Decisions (ECHR Reports) 2004-II.

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10  Treaty Interpretation by Relying upon Other International Legal Norms emergence of any unnecessary contradiction between various pieces of international law due to the developed interpretation.8 On the ground of general doctrines and considerations – through deduction – the courts may also rely on other sources of law in the course of interpreting international treaties. According to Lauterpacht's classic proposition, an international treaty is more than the mere will of the parties, as such treaties become parts of international law; thus, international treaties must be in conformity with the principles and rules of international law.9 The arbitral award granted in the George Pinson case referred to this consideration as follows: “Every international convention must be regarded as tacitly referring to general international law in any question it does not solve itself expressly and in a different way.”10 In Elettronica Sicula, the Court explained that, for the purposes of interpreting international agreements, the parties should be presumed to have tacitly entered into the agreement in accord with, and with due regard to, the rules of customary international law (the local remedies rule in this case), in the absence of any words making clear an intention not to do so.11 On the other hand, for example, Jenks assumes the existence of a general presumption against any interpretation of a treaty that would lead to any conflict between international treaties. This presumption can be inferred from the combination of the principles of

8 In Saadi, the Court had to interpret, for the first time, the following phrase of Art. 5(1)(f) ECHR with a view to the detention of an asylum seeker: “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country […]”. In the given case, the Court based its interpretation on Art. 31 of the Convention relating to the Status of Refugees (Geneva, 1951, 189 U.N.T.S. 137), on the guidelines of the United Nations High Commissioner for Refugees (UNHCR's Revised Guidelines of 10 ­February 1999, Guideline 3), and on Conclusion No. 44 of the Executive Committe of the United Nations High Commissioner for Refugees Programme (Executive Committe of the UNHCR's Programme: Conclusion of 13 October 1986 relating to the detention of asylum seekers, No. 44 (XXXVII) – 1986), thereby avoiding the need to deduce the requirements of lawful detention of asylum seekers from Art. 5 laying down the general requirements concerning the deprivation of liberty (and also the possibility for its judgment to contradict the general norms of international law on refugees). Saadi v. the United Kingdom [GC] (Appl. No.13229/03), Judgment of 29 January 2008, ECHR Reports 2008, paras 33-35, 37, 65. A number of cases must be mentioned where the Court examined the conditions under which the fundamental right to access to court as deduced from Art. 6(1) ECHR in Golder may be limited on the ground of state immunity. See e.g., McElhinney v. Ireland (Appl. No. 31253/96), Judgment of 21 November 2001, ECHR Reports 2001-XI, para. 36; Al Adsani v. the United Kingdom (Appl. No. 35763/97), Judgment of 21 November 2001, ECHR Reports 2001XI, para. 55; Fogarty v. the United Kingdom (Appl. No. 37112/97) Judgment of 21 November 2001, ECHR 2001-XI, para. 36; see also, McLachlan 2005, p. 305. 9 H. Lauterpacht, ‘Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties’, 26 British Yearbook of International Law, 1949, p. 76, for the statement concerning interpretation in the absence of mutual intent of the parties, see pp. 75-82. 10 Aff. George Pinson, Commission franco-méxicaine, Dec. No. 1, 19 October 1928, UN Reports of International Arbitral Awards (UNRIAA) Vol V. 327, at 422, para. 50.4. (in French); for similar considerations, see The ‘Kronpris Gustav Adolf ’ Case, Award of 18 July 1932, UNRIAA Vol. II, p. 1239, at pp. 1246-1247, point III/III/2, and Lord McNair, The Law of Treaties, Oxford, Oxford University Press 2003 (reprinted), pp. 466- 467. 11 Elettronica Sicula S.p. A. (ELSI) (United States of America v. Italy), Judgment of 20 July 1989, 1989 ICJ Rep. 15, at 42, para. 50.

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László Blutman rationality, good faith, and the presumption of the consistency of international law.12 There are obvious theoretical and practical difficulties to tackle in proving the existence of, and applying, such a presumption. Nevertheless, references to this presumption have appeared in international legal practice.13 When interpreting an international treaty, international courts may be specifically instructed by the treaty under interpretation,14 or the treaty supporting the interpretation,15 or even by a third international treaty to rely on a specific norm of international law as support for interpretation. The most famous example for the latter case is Article 31(3)(c) of the 1969 Vienna Convention on the Law of Treaties,16 according to which, for the purposes of interpreting international treaties, “[t]here shall be taken into account, together with the context: (…) any relevant rules of international law applicable in the relations between the parties”. Though McLachlan believes this provision to be merely a legislative statement of the general considerations set forth in the previous paragraph,17 it is worthy of being taken account, as the application of this provision is subject to more specific conditions. The use of international legal norms for the interpretation of international treaties raises significant problems, which may be most easily approached by analysing the above-mentioned provision laid down in Article 31(3)(c) of the 1969 Vienna Convention. It is certainly justified to start from this provision, as the general rules of treaty interpretation provided by the Vienna Convention (Arts. 31 to 33) are also part of customary international law.18 In the case concerning the Territorial Dispute (Libya/Chad), the International Court of Justice (hereinafter ‘ICJ’) considered that, as to the interpretation of treaties, Article 31 of the 1969 Vienna Convention reflects the rules of customary international law (at least with regard to the requirement of good faith).19 The ICJ shared the same view in

12 W.C. Jenks, ‘The Conflict of Law-Making Treaties’, 30 BYBIL 1953, p. 427; in more detail J. Pauwelyn, Conflict of Norms in Public International Law – How WTO Law Relates to Other Rules of International Law, Cambridge University Press, Cambridge, 2003, pp. 240-243. 13 See e.g., Indonesia – Certain Measures Affecting the Automobile Industry (Panel Report) WT/DS54/R, WT/ DS55/R, WT/DS59/R, WT/DS64/R (adopted 23 July 1998), DSR 1998:VI, 2201, at 2581, para. 14.28.; source (of all the WTO cases discussed here): (last accessed 11 February 2013). 14 For example, according to Art. 17.6(ii) of the Agreement on Implementation of Art. VI of the General Agreement on Tariffs and Trade 1994 (in Annex 1A to the Agreement Establishing the World Trade Organization 1994, 1868 U.N.T.S. 201), the relevant provisions of the agreement shall be interpreted in accordance with customary rules of interpretation of public international law. 15 E.g., Art. 20(1)(b) of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Paris, 2005, 2440 U.N.T.S. 311) provides that, when interpreting and applying other treaties to which the Parties are parties, Parties shall take into account the relevant provisions of this Convention. 16 1155 U.N.T.S. 331. 17 McLachlan 2005, p. 280. 18 See Fragmentation of international law, para. 427. 19 Territorial Dispute (Libyan Arab Jamahiriya and Chad) Judgment of 3 February 1994, 1994 ICJ Rep. 6, at 21-22, para. 41.

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10  Treaty Interpretation by Relying upon Other International Legal Norms LaGrand concerning Article 33 of the Convention (interpretation of treaties authenticated in two or more languages),20 and was followed by the European Court of Human Rights (hereinafter ‘ECHR’) in Stoll.21 The WTO Appellate Body recognised the customary law nature of the rules of interpretation laid down in Article 31(1) of the Vienna Convention in United States – Gasoline.22 Doing so was necessary, as – according to the second sentence of Article 3(2) of Annex 2 (understanding on rules and procedures governing the settlement of disputes 1869 U.N.T.S 401) to the agreement establishing the World Trade Organization (Marrakesh, 1994) – the Appellate Body may interpret the provisions of international agreements “in accordance with customary rules of interpretation of public international law”. Thus, the rules of interpretation laid down in the Vienna Convention may not be applied in dispute resolution procedures directly, unless they are parts of customary law.

10.2 Article 31(3)(c) of the Vienna Convention The recent and general uptake of this provision of the Vienna Convention may be attributable to two important events.23 First, a minor debate broken out in the legal doctrine, when this provision was applied by the ICJ in Oil Platforms.24 Second, the relevant provision was analysed by the UN Study Group assuming that the provision could be a counterbalance on the basis of which the fragmentation of the international legal system could be reduced through interpretation.25

20 LaGrand (Germany v. United States of America) Judgment of 27 June 2001, 2001 ICJ Rep. 466, at 502, para. 101. 21 Stoll v. Switzerland (Appl. No. 69698/01) [GC] Judgment of 10 December 2007, ECHR Reports 2007-V, para. 59. 22 United States – Standards for Reformulated and Conventional Gasoline (Appellate Body Report) WT/DS2/ AB/R (adopted 20 May 1996), DSR 1996:I, 3, point III/B/1; see also e.g., United States – Import Prohibition of Certain Shrimp and Shrimp Products (Appellate Body Report) WT/DS58/AB/R (adopted 6 November 1998), DSR 1998:VII, 2755, para. 114; India – Patent Protection for Pharmaceutical and Agricultural Chemical Products (Appellate Body Report) WT/DS50/AB/R (adopted 16 January 1998), DSR 1998:I, 9, point V; European Communities – Customs Classifications of Certain Computer Equipment (Appellate Body Report), WT/DS62/ AB/R, WT/DS67/AB/R, WT/DS68/AB/R (adopted 22 June 1998), DSR 1998:V, 1851, paras 83-86. 23 See e.g., McLachlan 2005, pp. 279-320.; French 2006, pp. 300-307. 24 Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, Judgment of 6 November 2003, 2003 ICJ Rep. 161, see also, McLachlan 2005, pp. 279-280. 25 Official Records of the General Assembly, Fifty-sixth Session (2004), Supplement No. 10 (A/56/10) paras 296358; especially paras 345-351; Fifty-seventh Session (2005), Supplement No. 10 (A/57/10) ­paras ­439-492; especially paras 467-479. and Fragmentation of international law, supra, paras 410-480. From this perspective, the interpretation of international treaties through other pieces of international legislation also opens the door to other fundamental problems of contemporary international law as a set of norms. Such interpretation may support the systemic concept of international law and may attempt to create internal harmony and reduce the extent of fragmentation, also preventing international law from breaking down into selfregulatory and independent sub-systems – the interaction of which is uncertain and unpredictable – at the hands of international organizations and international bodies applying the law (e.g., the regional systems of the protection of human rights, WTO law, ICSID law, etc.).

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László Blutman For us, the relevant problem in Oil Platforms was that whether the rules of general international law on the prohibition of use of force may be taken into consideration when interpreting a bilateral treaty26 serving as ground for assessing certain acts of the United States (i.e. attacking Iranian oil production facilities in 1987 and 1988).27 According to the provision to be interpreted (Art. XX, para. 1 (d)), the treaty shall not preclude the application of measures (among others) “necessary to fulfil the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests”. The Court had jurisdiction to consider the lawfulness or unlawfulness of the relevant actions only on the basis of the above treaty.28 The Court concluded that the examined acts of the United States – in the light of the rules of international law on the use of force – cannot be justified on the basis of Article XX, paragraph 1(d), as they were not necessary to protect essential security interests of the state party. The Court relied on Article 31(3)(c) of the 1969 Vienna Convention to take into the account the rules of international law on the use of force when considering the case.29 This situation reveals an important problem, i.e. what are the exact limits to jurisdiction, that may arise in the course of interpreting international treaties with the support of other pieces of international legislation. Unlike in the course of applying the law by authorities or courts within a state, international courts act on a consensual basis, and the parties may certainly limit the applicable law, which should be used to consider and evaluate any and all facts arising in a lawsuit. Thus, the question arises, whether the Court, for the purposes of interpreting a phrase (“necessary measure to protect essential security interests”) of the provision to be applied and interpreted, may rely on norms it has otherwise no jurisdiction to apply.30 In this respect, the finding that Article XX, paragraph 1(d) of the 1955 Treaty could not be intended to operate wholly independently of the relevant rules of international law was of fundamental importance among the arguments of the Court.31 In his separate opinion, 26 1955 Treaty of Amity, Economic Relations, and Consular Rights between the United States and Iran, 284 U.N.T.S. 93. 27 Iran, among others, claimed the violation of Art. X, para. (1) of the treaty (freedom of commerce and navigation), instead of Art. XX, the text of which lays down various exemptions. Oil Platforms (Preliminary Objection), Judgment of 12 December 1996, 1996 ICJ Rep. 803, at 811, para. 20. In the end, the Court held that Art. X, para. (1) was not violated. Oil Platforms (Merits), supra, at 180-183, paras 36-42. 28 Jurisdiction was based on Art. XXI, para. 2 of the 1955 Treaty, laying down rules for the judicial settlement of disputes relating to the Treaty. 29 Oil Platforms (Merits), supra, at 182, para. 41. For an overview of the judgment, see McLachlan 2005, pp. 306-309; Sands 2006, pp. 287-291. 30 Of course, the Court was well aware of this problem; see Oil Platforms (Merits), supra, at 178 and 181, paras 31 and 39. 31 Oil Platforms (Merits), supra, at 182, para. 41, see also, Al-Khasawneh (Diss. Op.) at 269, para. 9, Elaraby (Diss. Op.) at 303-305, paras 3.2-3.3. and the declaration of Judge Koroma, at 223-224. In this respect, Judge Rigaux correctly points out the dilemma surrounding the involvement of general international law in the interpretation of Art. XX, para. 1 (d); Rigaux (Sep. Op. ) at 377-378, para. 17.

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10  Treaty Interpretation by Relying upon Other International Legal Norms Judge Simma agreed with the majority opinion on this finding and elaborated the issue in more detail, concluding that it is a natural consequence of the freedom of interpretation that other norms of international law may be relied on for the purposes of interpretation.32 The most vehement criticism of this approach was offered by Judge Buergenthal. In his view, the jurisdiction of the Court limits the scope of norms that may be used for interpretation, as only norms falling within the competence of the Court may be used for such purposes. Article 31(3)(c) of the 1969 Vienna Convention cannot overwrite the limits on jurisdiction, as doing so would violate the fundamental principles of consensual adjudication.33 Apparently, this position was not shared by any other judge, as – among others – even Judge Higgins and Judge Owada had fundamentally different reasons for opposing to the application of the rules of general international law on the use of force. While Judge Higgins did not explicitly deny that rules falling beyond the jurisdiction of the Court could be theoretically used for interpretation purposes under the above-mentioned provision of the Vienna Convention, she certainly disputed that the Court, in this case and respect, had in fact interpreted Article XX, paragraph 1(d). The Court has, however, not interpreted Article XX, paragraph 1(d), by reference to the rules on treaty interpretation. It has rather invoked the concept of treaty interpretation to displace the applicable law. It has replaced the terms of Article XX, paragraph 1(d), with those of international law on the use of force and all sight of the text of Article XX, paragraph 1(d), is lost.34 Judge Higgins pointed out an essential aspect of the problem: in such cases, one must always bear in mind the difference between the interpretation and application of the law. She believed that the Court blurred this very difference, as it applied the rules of international law on the use of force directly to legally consider the facts of the case, instead of seeking to reveal the meaning of the provision of the Treaty under interpretation.35 The same objection was also raised by Judge Owada against the majority position.36 Oil Platforms (Merits), Simma (Sep. Op. ) at 329-330, paras 9-10. Oil Platforms (Merits), Buergenthal (Sep. Op. ) at 278-279 and 281, paras 22, 28. Oil Platforms (Merits), Higgins (Sep. Op. ) at 238, para. 49. Judge Higgins also emphasised the followings: “But the reality is that the Court does not attempt to interpret Art. XX, para. 1 (d). It is not until para. 73 that there is any legal reference at all to the text of that provision. The intervening 15 pages have been spent on the international law of armed attack and self-defence and its application, as the Court sees it, to the events surrounding the United States attacks on the oil platforms.” Ibid., at 238, para. 47. Similarly, Judge Kooijmans, see Oil Platforms (Merits), supra, Kooijmans (Sep. Op. ) at 254, para. 24. Judge Owada also criticised that the Court did not examined the issue of self-defence individually, but only through Art. XX, para. 1 (d). Oil Platforms (Merits), supra, Owada (Sep. Op. ) at 315, para. 31. 36 The differentiation is elaborated by Judge Owada in his separate opinion as follows: “It is true in my view that, as a general proposition, the measures taken under Art. XX, para. 1(d), when they involve the use of force, have to be compatible with the requirements of international law concerning the use of force. However, this does not mean that the problem involved in the ‘measures necessary to protect essential security interests’ of a High Contracting Party under Art. XX, para. 1 (d), is synonymous with the problem involved in the right of self-defence under international law.” Ibid. at 315, para. 32, comprehensively, see at 315-318, paras 31-36. 32 33 34 35

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László Blutman 10.3 Limited Jurisdiction: Interpretation or Application of the Law? The differentiation emphasised by Judge Higgins cannot be separated from the issue of jurisdiction. The difference between the interpretation and application of the law gains essential importance, when an international court – for some reason – has limited jurisdiction over the application of a legal provision possibly supporting the interpretation of the applicable legal rule.37 The difference is of lesser importance for practical purposes, if a court also has jurisdiction to apply this supporting piece of international legal legislation to the facts of a given case. With this difference in mind, the text of Article 31(3)(c) of the Vienna Convention appears, at first, to include a significant contradiction. If “any relevant rules of international law applicable in the relations between the parties” (emphasis added) are to be taken into account for the purpose of interpreting an applicable norm of international law in a given case, then the rule that may be used under the convention for purposes of interpreting another international rule must be also applicable between the parties. It seems to indicate that the norm used to support the interpretation must be suitable in itself for being applied directly to the facts of the case, even without the intermediate use of the norm to be interpreted. In other words, this provision of the convention means that when a norm to be used for considering the facts of a case needs to be interpreted, those rules of international law that could be also applied in the given case, i.e. that could be applied to assess the facts of the case, must be taken into account for the purpose of interpretation. This merely – and quite trivially – means that in a case, where there are multiple pieces of international legislation that could or should be applied, the various provisions must be interpreted with reference and regard to each other.38 However, in light of Article 31(3)(c) of the Vienna Convention the supporting legal norm plays a supplementary role with regard to the norm to be interpreted, but is also required to be applicable between the parties. The latter requirement does not exactly indicate the supplementary role of this norm. Accepting this interpretation of Article 31(3)(c), the arguments presented by Judge Buergenthal may even hold water, as any and all pieces of legislation excluded by the jurisdiction clause from the case cannot meet the applicability

37 Though in a somewhat different context, the Court of Justice of the European Union under Art. 267 TFEU (ex Art. 234 TEC) has jurisdiction to interpret European Union law in preliminary rulings, but it does not have power to apply EU law. This situation raised numerous problems concerning the differentiation between the interpretation and application of the law. Apparently, the Court has set aside the illusion of pure legal interpretation, and developed the notion of giving a ‘useful answer’; see e.g., Case 109/83, Eurico Srl v. Commission [1984] ECR 3581, para. 12, Case C-83/91, Wienand Meilicke v. ADV/ORGA F. A. Meyer AG [1992] ECR 4871, paras 26, 32. In more detail, see L. Blutman, EU-jog a tárgyalóteremben – az előzetes döntéshozatal, Budapest, KJK-KERSZÖV 2003, pp. 131-142. 38 See Fragmentation of international law, paras 414-419. on parallel, applicable international treaties.

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10  Treaty Interpretation by Relying upon Other International Legal Norms requirement laid down in Article 31(3)(c), and, consequently, cannot be used for the purposes of interpretation. On the other hand, however, Article 31(3)(c) provides limited information on the requirements concerning applicability,39 and may be understood as requiring that the legal norm to be used as support for interpretation must be applicable between the parties in general, as it creates rights and obligations for the parties, but is not required to be applicable in the given case (e.g. due to lack of jurisdiction). In this case, such legal norms may be used for the interpretation of other international legal norms that can be applied on the basis of jurisdiction, even in the absence of any jurisdiction to apply the supporting legal norms. This approach that makes sense of the sheer existence of Article 31(3)(c) supports the arguments of Judge Higgins and Judge Owada, which rely on the differentiation between the application and interpretation of the law (as the differentiation makes sense here), but may question the arguments of Judge Buergenthal, as the jurisdiction related limitations would not be applicable for interpretation purposes. This approach to Article 31(3)(c) of the Vienna Convention, which must have been shared by the majority of the Court in Oil Platforms, represents a major challenge against the foundations of the consensus based international administration of justice Judge Buergenthal tried to protect in his separate opinion. However, as indicated by Sands, one must never forget that significant obstacles need to be overcome when trying to distinguish the process of applying the law from the process of interpreting the law.40 When, exactly, is a legal norm used to evaluate the facts of a case, and when is it merely relied on to determine the meaning of another legal norm used to assess the facts of a case? This is a hard question, as the international legal norm used for the interpretation of another norm – however indirectly and through the norm to be interpreted – does affect the consideration of the facts of the case. It does so by giving reasons for the acting court to prefer a given interpretation to all other alternatives. Furthermore, the rule to be interpreted is interpreted with regard to the specific facts of a case, and, consequently, the specific facts may not be ignored when relying on the norm supporting the interpretation efforts. Thus, the implementation of the theoretical distinction is far from being a simple task. The problem is closely related to the relationship between the rule under interpretation and the rule supporting the interpretation. The difference between the content of the norm used for interpretation and of the norm to be interpreted may be fundamental enough to have an actual impact on the presumed meaning of the latter, and the two norms may be

39 Official Records of the General Assembly, Fifty-seventh Session (2005), Supplement No. 10 (A/57/10) para. 469. 40 P. Sands, ‘Treaty, Custom and the Cross-fertilization of International Law’, Yale Human Rights and Development Law Journal 1, 1998, pp. 102-103.

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László Blutman even in conflict, at least in terms of the given case.41 In such cases, the norm used to support the interpretation begins to prevail instead of the rule under interpretation.42 However, it cannot be decided in general, when the conformity of two rules ceases to exist, or when the conflict becomes irresolvable. The ECHR in its famous Golder case deduced a right of access to the courts from Article 6 ECHR by relying on the norms of general international law.43 Should this deduction, i.e. asserting a right not mentioned in the text of the ECHR, be regarded as the creation of a new right or simply the interpretation of Article 6 ECHR through invoking the norms of general international law? May the existence of the new right be inferred from the provisions of the ECHR, in the light of the norms of general international law, or the Court created a new right, in addition (and with reference) to the ECHR by invoking other pieces of international legislation? Such questions are typical and have been raised since the emergence of the law, and cannot be solved in abstracto, apparently. Thus, the problem of interpreting the provisions of an international treaty through other norms of international law opens the door to a more general issue: namely, the problems associated with the interaction between and simultaneous enforcement of multiple legal rules. However, the problems arising from the impossible task of separating the application from the interpretation of the law in the case of administering justice with limited jurisdiction intertwine with general problems of legal theory associated with the separation of legislation and legal interpretation, for which the Golder case is an excellent example. Unfortunately, the merits of these rather general problems may not be discussed in the present paper.

10.4 The Requirements for Using Other Pieces of International Legislation for Interpretation Not any piece of international legislation may be used to interpret an international legal rule. The limitation laid down in Article 31(3)(c) of the 1969 Vienna Convention, according to which “any relevant rules of international law applicable in the relations between the parties” may be taken into account, may be used in general, even if a court relies on a norm of international law for interpretation purposes without making any specific reference thereto. The following paragraphs contain some statements of rather general nature

41 It seems, however, that the formalization of the problem would hardy yield any result. French uses a threepillar system to analyse the interactions between two norms of international law (clarification of meaning – change of meaning – enforcement of opposite meaning), which may be necessary to describe the problem, but does not offer any solution. French 2006, pp. 282-283 and p. 313. 42 Oil Platforms (Merits), Higgins (Sep. Op. ) at 238, para. 49. 43 Golder v. the United Kingdom, Judgment of 21 February 1975, ECHR Series A, No. 18, paras 28-36.

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10  Treaty Interpretation by Relying upon Other International Legal Norms on the requirements of using pieces of international legislation for interpretation purposes. However, no detailed analysis of such statements – with one exception – is offered in this paper. Apparently, no major debate has ever surfaced concerning the meaning of ‘rules’, indicating that such rules may include any and all sources of international law.44 Of course, the use of a provision of an international treaty or of a customary rule for interpretation purposes raises different problems.45 For example, when using treaty rules of relative effect, it may be a problem (and limitation), if the contracting parties are not the same in the treaty to be interpreted and the treaty to be used as support for interpretation (see Section 10.5). Another issue is the temporal sequence of the rule to be interpreted and the rule used as support for interpretation, which topic was analysed by French in detail.46 The Vienna Convention does not provide any requirement in this respect, so – theoretically – even rules established after the adoption of the treaty to be interpreted may be used for interpretation. This issue leads to a general fundamental question concerning the interpretation of international treaties, i.e. whether only norms already established at the time of adopting the treaty to be interpreted, or even subsequent rules may be used for interpretation.47 One might face unique problems when trying to interpret an international treaty through reliance on a ius cogens norm, instead of a simple rule of customary law. In Oil Platforms, for example, Judge Simma covered this problem (assuming that the rules on the use of force are ius cogens) and explored certain features of such situations.48 The possible conflicts, interactions, and relationships between rules may appear in various forms in international law. In this paper – and under Article 31(3)(c) of the 1969 Vienna Convention – the interpretation of a rule through another rule is discussed.49 It is not clear quite often, whether or not the court relied on a specific and explicitly mentioned norm

44 Fragmentation of international law, supra, paras 462-472, Official Records of the General Assembly Fiftysixth Session (2004), Supplement No. 10 (A/56/10) paras 345, 350.; McLachlan 2005, pp. 290-291. The use of any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions (Art. 31(3)(a) of the Vienna Convention) falls here logically, but it is narrower, more specialised, and does not raise many problems. However, interesting problems may arise in relation to distinguishing between points (a) and (c), which are not discussed here in more detail. See e.g., A. Aust, Modern Treaty Law and Practice, Cambridge University Press, Cambridge, 2007, pp. 238-241. 45 For numerous examples for the application of general rules of customary law, see Fragmentation of international law, paras 463-469. 46 French 2006, pp. 295-300. 47 See also, Fragmentation of international law, supra, paras 429-433, 475-478 or A. Szalai, ‘A szokásjog szerepe a nemzetközi jogban’, Tudományos Diákköri Szemle, 2006, SZTE ÁJTK Szeged, 2006, pp. 266-271. 48 Oil Platforms (Merits), Simma (Sep. Op. ) at 327-331, paras 6, 9-11. See also, French 2006, pp. 290-291, A Orakhelashvili, ‘The Impact of Peremptory Norms on the Interpretation and Application of United ­Nations Security Council Resolutions’, 16 European Journal of International Law, 2005, pp. 59-88. 49 This is why Art. 30 (Application of successive treaties relating to the same subject matter) of the 1969 Vienna Convention is irrelevant, despite of the fact that it applies to the logical relationship between two norms. One must see, however, that it is not about interpretation, but about general application.

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László Blutman for interpretation purposes in a given case. International courts often mention various provisions of different treaties among the legislation taken into account, but the reasoning does not reveal whether or not, or exactly how, the court indeed relied on these pieces of legislation. Consequently, despite any reference to various pieces of the legislative background, it is occasionally impossible to determine if such norms were actually used for interpretation purposes.50 Apparently, the relevance of a rule used as support for interpretation (‘relevant rules’) is not a material limitation for the courts. Relevance is established whenever the court finds any kind of relationship between the rule to be interpreted and the rule to be used for interpretation purposes. It is hardly conceivable that the relevance of a rule used as support for interpretation may be challenged subsequently, if the court actually used it one way or another to establish the meaning of another rule. So far, I have not found any objective criterion of relevance that may actually limit the judicial practice. In Oil Platforms, Judge Higgins made a less convincing attempt to question the material relevance of the rules on the use of force, but she did not build any significant conclusion on that attempt.51 As with many issues relating to judicial practice, the interesting question sometimes is not why a court did something, but why it did not do something. Specifically, why did not courts take into account, in certain cases, other rules of international law in the course of interpretation? An aspect of this question is that, according to the Vienna Convention, the interpreter of a treaty would be required to take into account other relevant rules as well. However, this obligation might become illusory due to the uncertainties surrounding the requirements of such interpretations. The above-mentioned requirement of relevance (i.e. that the rule used for interpretation purposes must be ‘relevant’ to the rule to be interpreted) is vague and can only be determined on an ad hoc basis. This condition cannot be controlled conceptually, and any interpretation based on another international legal norm could be easily averted due to the soft requirement. In Balmer-Schafroth heard by the ECHR, Judge Pettiti and six other judges demanded in a dissenting opinion that the rules of international law on environmental protection be taken into account when interpreting the ECHR to determine whether or not the applicants have a right to judicial review under Article 6(1) in the course of the licensing of a

50 In Stec, e.g., the European Court of Human Rights referred to the Social Charter in detail, as relevant law, but it is not clear from the reasoning how exactly this treaty contributed to a decision on whether or not the social benefits at hand fell under the scope of Art. 1 of Protocol 1 to the ECHR (right to peaceful enjoyment of possessions). Stec and others v. the United Kingdom [GC] (Appl. Nos. 65731/01 and 65900/01), Admissibility Decision of 6 July 2005, ECHR Reports 2005-X, paras 25, 34 and 52. 51 The essence of her argument is that the parties, concluding an economic and commercial treaty, had hardly any intention to incorporate the entire substance of international law on the use of force. Such rules fall outside the context of the treaty, and are irrelevant for the purpose of interpreting the treaty. Oil Platforms (Merits), Higgins (Sep. Op. ) at 237, para. 45-46.

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10  Treaty Interpretation by Relying upon Other International Legal Norms nuclear power plant – but the majority did not comply with this demand.52 (In the lack of objective criteria, similarly powerful arguments may be used against the minority opinion to show why the invoked rules of international law are not relevant to the interpretation.) As pointed out by Sands, legal uncertainty is an important counter-argument against the use of international legal norms for interpretation purposes.53 There may be numerous factors of uncertainty when the contents of two norms are brought in contact. The outcome of the interpretation with regard to the specific facts of a case to be decided may be especially uncertain in using general, unwritten customary rules or other rules with otherwise uncertain contents. The possible use of the precautionary principle for such purposes is an excellent example of such uncertainty. It is doubtful that the precautionary principle could be considered as a norm of customary law, but its content is also uncertain when applied to a commercially restrictive state measure (see, European Communities – Hormones),54 to a national legal rule restricting guarantees for legal remedy (see, BalmerSchafroth),55 or to a future state measure giving rise to the suspicion of prospective natural harm (see, Southern Bluefin Tuna Cases).56 Legal uncertainty is further increased when a court uses an international legal norm to interpret a treaty provision. By interpreting this provision it also shapes the contents of the norm used as support for interpretation. In the course of this two-way process, the court may assign a meaning to the supporting norm which has not been applied before by any other body.

10.5 The Scope of Parties to the Used Pieces of Legislation A special problem arises, when a court, in order to interpret a treaty provision of relative effect, relies on another relative rule, typically a provision of another treaty. It seems to be clear, that the parties to the court proceeding must be parties to both the treaty to be interpreted and to the treaty supporting the interpretation. Problems may arise, if the parties to the dispute are parties to both treaties, but the state parties to the two treaties do not overlap.57 In such cases, an entity, which is not party to the dispute, but is party to

52 Balmer-Schafroth and others v. Switzerland [GC] (Appl. No. 22110/93), Judgment of 26 August 1997, ECHR Reports 1997-IV, Pettiti (Diss. Op. , joined by six other judges) and Foighel (Diss. Op.). 53 Sands 1998, p. 101. 54 EC Measures Concerning Meat and Meat Products (Hormones) (Appellate Body Report) WT/DS26/AB/R, WT/DS48/AB/R (adopted 13 February 1998), DSR 1998:I, 135, especially point VI; see also, Sands 1998, pp. 86-87. 55 Balmer-Schafroth, supra, see especially para. 40, and Pettiti (Diss. Op. , joined by other six judges). 56 Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), International Tribunal for the Law of the Sea (Request for provisional measures), Order of 27 August 1999, paras 67-80. (accessed 11 February 2013). 57 For the possible solutions to this situation, see McLachlan 2005, pp. 314-315.

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László Blutman the treaty under interpretation, may raise legitimate objections, if a court interpreted the treaty it is party to with a view to another treaty it is not a party to. For this reason, many observers tend to understand the provision laid down in Article 31(3)(c) of the Vienna Convention so that an international treaty may not be used as support for the interpretation of another international treaty, unless – in addition to the parties to the dispute – all parties to the treaty to be interpreted are also parties to the supporting treaty. A GATT panel followed this approach in United States (Tuna II) and refused to take into account the invoked – mostly environmental protection related – treaties for the interpretation of Article XX(g) of the GATT because they “were not concluded among the contracting parties to the General Agreement.”58 This approach was also confirmed by recent WTO practice, for example, in EC – Biotech.59 Of course, it cannot be clearly inferred from the provision itself in the Vienna Convention if the concept of ‘parties’ refers to all parties to the treaty to be interpreted, or to the parties to the given dispute only.60 The solution applied in WTO practice would significantly reduce the scope of treaties suitable for being used as support for interpretation, since it rarely occurs that all parties, without exception, to a treaty to be interpreted are also parties to the treaty to be used as support. For this reason, Mansfield, a rapporteur of the UN Study Group, seeks to extend the interpretation opportunities afforded under Article 31(3)(c) of the Vienna Convention. Mansfield concluded that it is sufficient that the parties to the dispute are also parties to both the treaty to be interpreted and the treaty supporting the interpretation. In such cases, however, the risk of the emergence of divergent interpretations of the same treaty provision increases, as the parties to a subsequent dispute may be different, and the previously applied treaty may not be applicable to their case.61 Nevertheless, this solution is chosen occasionally by the ECHR. In interpreting the ECHR, the Court sometimes relies on other 58 United States – Restrictions on Imports of Tuna (GATT Panel Report) DS29/R, 16 June 1994 (unadopted), para. 5.19, thereby adopting the argument of the European (Economic) Community and the Netherlands, according to which, “[…]since not all GATT members were parties to the environmental treaties cited by the United States, such practice could not meet the terms of Article 31:3(c) which applied only to ‘rules of international law applicable in relations between the parties’ ”. para. 3.38; source: (accessed 11 February 2013). Also with respect to this case see Official Records of the General Assembly, Fifty-seventh Session,Supplement No. 10 (A/57/10), 2005, para. 472 or Sands, 1998, pp. 96-97. 59 E.g., European Communities – Measures Affecting the Approval and Marketing of Biotech Products (Panel Reports) WT/DS291/R, WT/DS292/R, WT/DS293/R, Add.1 to Add.9, and Corr.1 (adopted 21 November 2006) DSR 2006:III-VIII, 847, paras 7.68, 7.70-7.72. For further reference to the case, see Fragmentation of international law, supra, paras 448, 471-472. 60 However, on the basis of Art. 2(1)(g) of the Vienna Convention (‘party’ means a state which has consented to be bound by the treaty and for which the treaty is in force), the concept of ‘parties’ means all parties to the convention, instead of referring to the parties to the dispute only. 61 Official Records of the General Assembly, Fifty-seventh Session (2005), Supplement No. 10 (A/57/10) para. 472. A somewhat similar classification is introduced by McLachlan 2005, p. 314.

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10  Treaty Interpretation by Relying upon Other International Legal Norms treaties to which not all parties to the ECHR are parties. In the Glass case mentioned previously, for example, not all parties to the ECHR were parties to the 1997 Oviedo Convention that was used for interpretation purposes. However, the ECHR went even further obviously ignoring the pacta tertiis principle. It has already happened that the Court relied on, as support for the interpretation of the ECHR, a treaty to which a party to the dispute at hand was not a party to. This judicial practice may invalidate any speculations concerning the scope of parties under Article 31(3)(c) of the Vienna Convention. The breakthrough came in Marckx, quite a long time ago. The Court interpreted Article 8 ECHR (right to respect for private and family life) with a view to the disadvantageous legal status of children born out of wedlock relying on two treaties to which Belgium, the respondent state (and numerous other member states of the Council of Europe) was not party.62 However, according to the Court, “[…] this state of affairs cannot be relied on in opposition to the evolution noted above. Both the relevant Conventions are in force and there is no reason to attribute the currently small number of contracting states to a refusal to admit equality between ‘illegitimate’ and ‘legitimate’ children on the point under consideration. In fact, the existence of these two treaties denotes that there is a clear measure of common ground in this area amongst modern societies”.63 The arguments presented in Marckx on this matter are rather short and incomplete. It is not explained, for example, why the small number of contracting states does not indicate instead that the states were not prepared to adopt at least one or some of the provisions of the treaty.64 It appears that – after Marckx – the Court, for a long time, had not relied on any international treaty the respondent state was not a party to interpret the provisions of the ECHR. 62 Brussels Convention of 12 September 1962 on the Establishment of Maternal Affiliation of Natural Children (signed, but not yet ratified by Belgium at the time); Convention of 15 October 1975 on the Legal Status of Children born out of Wedlock (neither signed, nor ratified by Belgium at the time). Marckx v. Belgium (Appl. No. 6833/74), Judgment of 13 June 1979, Series A No. 31, para. 41. 63 Ibid. The solution reached in Marckx is somewhat similar to a recent proposal attributed to Pauwelyn (and also reflected in the materials of the UN Study Group) in relation to the dispute resolution proceedings of the WTO. According to this proposal, not all parties to the treaty to be interpreted need to be parties to the treaty used as support for interpretation; it would suffice if such parties tacitly agreed thereto. (However, it is clear that the parties to the dispute need to be parties to the treaty used as support for interpretation.) J. Pauwelyn, Conflict of Norms in Public International Law – How WTO Law Relates to Other Rules of International Law, Cambridge University Press, Cambridge, 2003, pp. 257-263. Official Records of the General Assembly, Fifty-seventh Session, Supplement No. 10 (A/57/10), 2005, para. 472. 64 It is notable that numerous dissenting opinions or partially dissenting opinions were submitted by the judges, but only Judge Vilhjálmsson reflected shortly to the problem of using the two treaties. His observation is essentially similar to the objections raised later by Judge Higgins in Oil Platforms. He acknowledges that the Convention on the Legal Status of Children born out of Wedlock indicates the changing attitude of the states, but emphasises that the problem raised in the case must be solved by interpreting Art. 8 of the ECHR and relevant Belgian law. Marckx, Vilhjálmsson (partly Diss. Op. ). This comment can be understood in two ways: either the convention should not have been taken into account at all, or should have been used for interpretation purposes, instead of applying it directly to the facts of the case.

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László Blutman The Taşkin65 and Tüm Haber Sen66 judgments changed the situation, but the Court faced the problem at a theoretical level in the Demir case only.67 Referring to Marckx the Court made it clear that, for the purpose of interpreting the ECHR, it takes into account international instruments showing a continuous evolution and common ground in modern societies, the interpretation of such instruments, and the practice of European states reflecting their common values. The Court clearly stated that, in defining the meaning of terms and provisions of the ECHR, it may rely on international treaties the respondent state is not a party to. The Court observed: […] in this connection that in searching for common ground among the norms of international law it has never distinguished between sources of law according to whether or not they have been signed or ratified by the respondent state.68 Obviously, the European system of the protection of human rights is a specific and regional set of norms, and the unique principles applicable to the interpretation of the ECHR may be different, or even partially in conflict, with the interpretation principles applied in universal international law.69 In the United States – Shrimp case, for example, the WTO Appellate Body took into account Article 56 of the United Nations Convention on the Law of the Sea70 to reveal the meaning of the generic term ‘natural resources’ only because the United States not having signed the convention acknowledged that the convention reflected international customary law.71

65 Taşkin and others v. Turkey (Appl. No. 46117/99) Judgment of 10 November 2004, ECHR Reports 2004-X, paras 99, 118-119. In this case, the Third Section used the 1998 Aarhus Convention (to which Turkey was not a party) to interpret Art. 8 ECHR in relation to access to information and public participation in decision-making. Though the Court does not mention explicitly the Convention in its arguments, in Demir it refers to this judgment as that where the justification had been partially built on this convention, see, Demir and Baykara v. Turkey [GC] (Appl. No. 34503/97), Judgment of 12 November 2008, ECHR Reports 2008, para. 83. 66 Tüm Haber Sen and Çinar v. Turkey (Appl. no. 28602/95), Judgment of 21 February 2006, ECHR Reports 2006-II, paras 24, 39. In this case the Chamber (Second Section) used Art. 5 of the Social Charter (Torino, 1961) to interpret Art. 11 of the ECHR (freedom of assembly and association), although Turkey has not agreed to be bound by this provision of the Charter. 67 Demir [GC], supra. The Grand Chamber of the Court – similarly to Tüm Haber Sen – used Arts. 5 and 6 of the Social Charter to interpret Art. 11 ECHR (freedom of assembly and association), see paras 45, 4950, 103-105, 149, even though Turkey was not obligated by these provisions of the Charter. The Chamber (Second Section) did not focus on this matter, see Demir and Baykara (Appl. No. 34503/97) Judgment of 21 November 2006, ECHR Reports 2006, para. 35. 68 Demir [GC], supra, paras 78, 85-86. 69 The convention – unlike classic international treaties – established a network of objective obligations subject to collective enforcement in contrast to traditional international obligations based on reciprocity, see Ireland v. the United Kingdom (Appl. No. 5310/71) Judgment of 18 January 1978, Ser A. No. 25, para. 239; Loizidou v. Turkey (Appl. no. 15318/89) (Preliminary Objections) Judgment of 23 March 1995, Series A. No. 310, para. 70; Mamatkulov and Askarov v. Turkey [GC] (Appl. Nos. 46827/99 and 46951/99), Judgment of 4 February 2005, ECHR Reports 2005-I, para. 100. 70 Montego Bay, 1982, 1833 U.N.T.S. 3. 71 United States – Shrimp, supra, para. 130, n. 110. The other parties to the dispute had already ratified the convention by that time.

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10  Treaty Interpretation by Relying upon Other International Legal Norms It is notable that, in Qatar/Bahrein, the International Court of Justice took into account treaties signed but unratified by the parties to the dispute: “[…] signed but unratified treaties may constitute an accurate expression of the parties at the time of signature.”72 Consequently, these treaties may theoretically used for the interpretation of another treaty.73 However, the events followed a different course in OSPAR, for example, where the already effective convention done at Aarhus in 199874 (already signed but yet to be ratified by the parties to the dispute by that time) could have been taken into account to interpret the OSPAR Convention with a view to the information rights in environmental matters. The Court refused to take into account the 1998 Convention, even as evidence of the evolving international practice or as a convention reflecting the common understanding of the parties.75 This happened despite of the fact that even the findings of the International Court of Justice in Qatar/Bahrein were invoked.76 The scope of the parties imposes significant limits on the range of treaties that could be relied upon for interpretation purposes, but the emergence of a relatively more uniform practice in this respect cannot be expected in the near future.

72 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Merits) Judgment of 16 March 2001, 2001 ICJ Rep. 40, at 68, para. 89. 73 Nevertheless, the Court decided not to apply the respective treaty (1913 Anglo-Ottoman Convention), ibid., at 68, paras 88-91. 74 Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters (Aarhus, 1998) 2161 U.N.T.S. 447. 75 Access to Information Under Article 9 of the OSPAR Convention. (Ireland v. the United Kingdom). Permanent Court of Arbitration, Final Award of 2 July 2003, paras 97-105; 137-138. See also, Griffith (Diss. Op. ) paras 7-19. (accessed 11 February 2013). 76 Ibid. Griffith (Diss. Op.), para. 15.

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11

International Discussions on the Progressive Realization of the Human Rights to Safe Drinking Water and Sanitation

Erzsébet Kardos Kaponyi* 11.1 Introduction I firmly believe that water-related issues have become increasingly urgent and important questions all over the world. Water, that covers about three fourths of the Earth’s surface, is one of the important global issues related to the well-being of future generations. The importance of water for human dignity, health and social well-being, protection and promotion of human rights, economic and social development, poverty reduction and adaptation to climate change is indisputable. It is estimated that in order to meet basic needs, individuals require a minimum of 20 to 50 litres of safe water each day.1 All human beings depend on a daily amount of safe water for existence, consumption and personal hygiene to avoid diseases. Despite the fact that water is necessary for life, the reality is that access to safe water is denied to billions of people worldwide. This leads to an increase in health and sanitation problems. Sustainable water resource limits have been exceeded in Western Asia and Northern Africa; whereas Southern Asia and the Caucasus and Central Asia are approaching water scarcity. In addition to this, the negative effects of climate change can also result in dramatic changes regarding the access to water. Numerous studies and statistical data show that the Earth’s freshwater supplies become scarcer and increasingly polluted while population is growing (developing countries are particularly affected).2 *

Full-time professor of the Institute of International Studies at Corvinus University of Budapest. Her teaching and research activity focuses on two distinct fields: European Community Law and Human Rights. Her main fields of expertise are the interdisciplinarity dimensions of human rights. 1 WHO and UNICEF, Meeting the MDG Drinking Water and Sanitation Target: A Mid-Term Assessment of Progress (Geneva, New York: WHO/UNICEF, 2004), (last accessed on 12 December 2012). 2 Over 780 million people are still without access to improved sources of drinking water and 2.5 billion people lack improved sanitation. If current trends continue, these numbers will remain unacceptably high in 2015. 605 million people will be without an improved drinking water source and 2.4 billion people will lack access to improved sanitation facilities. Progress on drinking water and sanitation 2012 update, Publication date: March 2012 ISBN: 978 92 806 4632 0 (last accessed on 12 December 2012).

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Erzsébet Kardos Kaponyi Water resources are not only reduced but also the investments in infrastructure and water resource management are more and more expensive. The lack of appropriate measures gives rise to many socio-economic and water-related environmental problems. These can take several forms. The competition for water as a productive resource is intensifying and failure of privatization and the high price of water leads to new social inequalities.3 ­According to the 2012 Joint Monitoring Programme of UNICEF and WHO report, between 1990 and 2010, 2 billion people gained access to improved drinking water services, but the water quality still remains a factor. It has been forecasted that more than 780 million people still do not drink improved water.4 While the percent of population with access to improved facilities increased in all regions since 1990, the number of people living without any access to water has increased due to slow progress and population growth. In 2008, 2.6 billion people still had no access to improved sanitation facilities.5 Briefly, lack of sanitation is an affront to human dignity. In addition to the outlined problems above, mention should also be made of access to water as a security issue. Parallel to the shrinkage of water sources, the potential for tensions between countries is growing.6 Over the recent decades, the control over water resources has been a cause of wars; water-related tensions have been common in many parts of the world and are generally expected to increase in the years ahead.7 The United Nations system has an important role to play in supporting countries in delivering water and many other basic services to the population and in achieving the goals of reliable water and sanitation. In 2004 United Nations Secretary-General Kofi Annan established an Advisory Board on Water and Sanitation (hereinafter ‘UNSGAB’) to strengthen and promote global action on these issues.8 The UNSG Advisory Board is an independent body established in order to advise the UN Secretary General, give input in the global dialogue process, raise global awareness, e.g. through mass media, to influence

3 See also, D. Shaw, Water Resource Economics and Policy, Edward Elgar Publishing, 2005 and I.T. Winkler, The Human Right to Water; Significance, Legal Status and Implications for Water Allocation, Hart Publishing, 2012. 4 Ibid. 5 (last accessed on 12 December 2012). 6 Compañía de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Argentine Republic, ICSID, Case No. ARB/97/3; Aguas del Tunari S.A. v. Republic of Bolivia,ICSID Case No. ARB/02/3; Suez, Sociedad General de Aguas de Barcelona S.A. and Interagua Servicios Integrales de Agua S.A. v. Argentine Republic. See also, M. Khumprakob, ‘The Vivendi-Argentina Water Dispute: ICSID Creates New Arbitration Tribunal to Hear the Longest Running Case on its Docket’, 5 Sustainable Development Law & Policy 1, Art. 17. 7 E.g., existing water conflicts in South and East Asia. 8 Former Prime Minister of Japan Ryutaro Hashimoto agreed to serve as Chair of the Board.

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11  Human Rights to Safe Drinking Water on the work in global, regional, national institutions at the highest level and take its own actions towards the UN Millennium Development Goals (hereinafter ‘MDGs’).9 UNSGAB primarily focuses its work on helping to mobilize resources for water and sanitation towards the achievement of MDGs and the Johannesburg Plan of Implementation, and publicly mobilize support and advocate for actions while ensuring political visibility, to assess progress made towards the water and sanitation goals and advocate for improving the capacity of governments and the international system.10 One of the major events of the year 2012 was certainly the United Nations Conference on Sustainable Development – or Rio+20 – which took place in Rio de Janeiro, Brazil on 20-22 June 2012.11 Among the topics of the conference was ‘water and sanitation’, which was a clear sign that the international community recognized the importance of peaceful and sustainable management and use of water resources.12 In this conference, UN member states decided to launch a process to develop a set of Sustainable Development Goals (hereinafter ‘SDGs’) which will build upon the UN Millennium

9 The MDGs are drawn from the actions and targets contained in the UN Millennium Declaration that was adopted by 189 nationsand signed by 147 heads of state and governments during the UN Millennium Summit in September 2000. MDGs recognize explicitly the interdependence between growth, poverty reduction and sustainable development. MDGs are based on time-bound and measurable targets accompanied by indicators for monitoring progress; and bring together, in the eighth goals. (Eradicating extreme poverty and hunger, Achieving universal primary education, Promoting gender equality and empowering women, Reducing child rates, Improving maternal health, Combating HIV/AIDS, malaria, and other diseases, Ensuring environmental sustainability, and Developing a global partnership for development.) The eight MDGs break down into 21 quantifiable targets that are measured by 60 indicators. Goal 7: Ensure environmental sustainability, Target 7.C: Halve, by 2015, the proportion of people without sustainable access to safe drinking water and basic sanitation. Indicators for monitoring progress: 7.8 proportion of population using an improved drinking water source, 7.9 proportion of population using an improved sanitation facility. See Official list of MDG indicators (last accessed 12 November 2012). 10 Press Release SG/A/870 ENV/DEV/756 OBV/412, 22/03/2004. 11 As a side event of the Rio+20, on 26 April 2012, the Permanent Missions of Finland, Hungary and Tajikistan to the UN, Denmark’s Ministry of the Environment, and Portugal’s Ministry of Agriculture, Sea, Environment and Spatial Planning, known as the Rio+20 Friends of Water group. 12 Water and sanitation is the focus of Chap. 18 of Agenda 21. The Commission on Sustainable Development (CSD) at its second (1994) and sixth (1998) sessions made recommendations to support implementation of Chap, 18 and the UN General Assembly at its nineteenth Special Session reviewed the implementation of Agenda 21 (1997). The World Summit on Sustainable Development (2002) also discussed this subject through its Plan of Implementation. The CSD, at its twelfth session (2004) reviewed and assessed implementation of three thematic issues, including water and sanitation. In 2005, at its thirteenth session, the Commission explored policy options for furthering implementation on the issues of water and sanitation. It was also decided to monitor and follow up the implementation of CSD-13 decisions on water and sanitation, and their interlinkages in 2008 (CSD-16) and 2012 (CSD-20).

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Erzsébet Kardos Kaponyi Development Goals and converge with the post 2015 development agenda.13 This event may be considered a continuation of the earlier decisions of the United Nations bodies and forums namely: Agenda 21 of June 1992;14 the Habitat Agenda of 1996;15 the Mar del Plata Action Plan of 1977 adopted by the United Nations Water Conference;16 the Rio Declaration on Environment and Development of June 1992;17 the Resolution 54/175 of 17 December 1999 on the right to development; the Resolution 55/196 of 20 December 2000, by which it proclaimed 2003 the International Year of Freshwater;18 the decision on the ‘Water for Life’ Decade (2005-2015)19 and the decision on the International Year of Sanitation (2008).20 The Decade of ‘Water for Life’ set the objective to promote efforts to fulfil international commitments made on water and water-related issues by 2015, taking into account the involvement and participation of women in these efforts. The International Year of Sanitation reaffirmed the need to assist developing countries’ efforts to prepare integrated water resources management and water efficiency plans as part of their national development strategies and to provide access to safe drinking water and basic sanitation in accordance with the Millennium Declaration21 and the Johannesburg 13 In the Rio+20 outcome document, member states agreed that sustainable development goals (SDGs) must: Be based on Agenda 21 and the Johannesburg Plan of Implementation. Fully respect all the Rio Principles. Be consistent with international law. Build upon commitments already made. Contribute to the full implementation of the outcomes of all major summits in the economic, social and environmental fields. Focus on priority areas for the achievement of sustainable development, being guided by the outcome document. Address and incorporate in a balanced way all three dimensions of sustainable development and their interlinkages. Be coherent with and integrated into the United Nations development agenda beyond 2015. Not diverting focus or effort from the achievement of the Millennium Development Goals. Include active involvement of all relevant stakeholders, as appropriate, in the process. See also, The Future We Want (last accessed 12 December 2012). 14 Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992, Vol. I, Resolutions Adopted by the Conference, United Nations publication, Sales No. E.93.I.8 and corrigendum, Res. 1, Ann. II. 15 Report of the United Nations Conference on Human Settlements (Habitat II), Istanbul, 3-14 June 1996, United Nations publication, Sales No. E.97.IV.6, Chap. I, Res. 1, Ann. II. 16 Report of the United Nations Water Conference, Mar del Plata, 14-25 March 1977, United Nations publication, Sales No. E.77.II.A.12, Chap. I. 17 Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992, Vol. I, Resolutions Adopted by the Conference, United Nations publication, Sales No. E.93.I.8 and corrigendum, Res. 1, Ann. I. 18 UN International Years are declared by the United Nations since 1959 in order to draw attention on major issues and encourage international action to address concerns which have global importance and ramifications. 19 GA/RES/55/196, International Year of Freshwater, 20 December 2000. It was launched on 22 March 2005, on World Water Day (last accessed on 12 December 2012). 20 A/C.2/61/L.16/Rev.1, Sixty-first session, Second Committee Agenda item 53 (a) Sustainable development: implementation of Agenda 21, the Programme for the Further Implementation of Agenda 21 and the outcomes of the World Summit on Sustainable Development, 4 December 2006. 21 To halve, by the year 2015, the proportion of the world’s people whose income is less than one dollar a day and the proportion of people who suffer from hunger and, by the same date, to halve the proportion of people who are unable to reach or to afford safe drinking water (19.) Resolution adopted by the General Assembly (without reference to a Main Committee (A/55/L.2)) 55/2. United Nations Millennium Declaration.

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11  Human Rights to Safe Drinking Water Plan of Implementation,22 including halving the proportion of people who are unable to reach or afford safe drinking water and who do not have access to basic sanitation by 2015.23 In December 2010 the United Nations General Assembly declared the year 2013 as the United Nations International Year of Water Cooperation24 based on a proposal from a group of countries initiated by Tajikistan and on the work of the High-level International Conference on the Midterm Comprehensive Review of the Implementation of the International Decade for Action, “Water for Life”, held in Dushanbe on 8 and 9 June 2010.25 11.2 The Road Leading to the Progressive Realization of Human Right to Water and Sanitation26 The Human Development Report 2006, Beyond Scarcity: Power, poverty and the global water crisis stated that like hunger, deprivation in access to water is a silent crisis experienced by the poor and tolerated by those with the resources, the technology and the political power to end it. Yet this is a crisis that is holding back human progress, consigning large segments of humanity to lives of poverty, vulnerability and insecurity. This crisis claims more lives through disease than any war claims through guns.27 This report also draws the attention to the necessity of making water a human right. The aim of this proposal is that all national and local governments make efforts to ensure the

22 Plan of Implementation of the World Summit on Sustainable Development, A/CONF.199/20. 23 Halve by 2015, the proportion of the population without sustainable access to safe drinking water and basic sanitation (MDGs, 7C). 24 GA Res. 65/154, International Year of Water Cooperation, 2013. The International Annual UN-Water Zaragoza Conference 2012/2013, ‘Preparing for the 2013 International Year. Water Cooperation: Making it Happen!’ that took place in Zaragoza, Spain, from 8 to 10 January 2013, focused on how to make cooperation happen. (last accessed on 12 December 2012). 25 This Conference was focusing on six themes: (1) accelerating progress towards water-related internationally agreed development goals, including the Millennium Development Goals, ensuring the involvement of women; (2) transboundary water cooperation; (3) water quality; (4) water resources, adaptation to climate change and disaster risk reduction; (5) sustainable financing; and (6) integrated water resources management, energy, agriculture and food security. It highlights the importance to build resilience and reduce vulnerabilities to extreme events, namely, floods, droughts and other hydro-climatic hazards under the policy framework and guidance of the Hyogo Framework for Action (2005-2015): Building the Resilience of Nations and Communities to Disasters. See also, UN General Assembly document A/65/88: Dushanbe declaration on water. 26 The concept of ‘progressive realization’ comes from the International Covenant for Economic, Social and Cultural Rights, which requires each state to take steps “to the maximum of its available resources, with a view to achieving progressively the full realization of the rights (. . .). “The CESCR’s General Comment No.15 states that “state parties have an obligation to progressively extend safe sanitation services, particularly to rural and deprived urban areas, taking into account the needs of women and children”. 27 . Overview, p. 1 (last accessed on 15 November 2012).

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Erzsébet Kardos Kaponyi appropriate legal environment to a secure, accessible and affordable supply of water. The report suggested that all governments should move beyond establishing vague constitutional principles by enshrining the human right to water in enabling legislation which is evident, because extending the human right to water is an obligation of the governments. To this end, the governments have to accord a high priority to water and sanitation and must promote water in becoming a key issue on the agenda of international, regional and local conferences.28 A number of international political declarations and resolutions at international and regional level were adopted on the right to water. These documents reflect that human rights demand a holistic understanding of access to water and sanitation. The Declaration of the United Nations Conference on the Human Environment, prepared in Stockholm between 5-16 June 1972, recognised that man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.29 The Action Plan of the United Nations Water Conference held in Mar del Plata in 1977, stated that all people have the right to drinking water in quantities and of a quality equal to their basic needs.30 The 4th Principle of the Dublin Statement entitled “Water has an economic value in all its competing uses and should be recognized as an economic good” adopted by the Dublin Conference on Water and Sustainable Development between 26-31 January 1992, particularly states that “within this principle, it is vital to recognize first the basic right of all human beings to have access to clean water and sanitation at an affordable price.” Chapter 18 on freshwater of the Agenda 21 of June 1992 states that water is needed in all aspects of life. The general objective is to make certain that adequate supplies of water of good quality are maintained for the entire population of this planet.31 It reflects upon the Mar del Plata Declaration by stating the commonly agreed premise was that all peoples, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantities and of a quality equal to their basic needs. Among its objectives (18.8) Agenda 21 underlines that Integrated water resources management is based on the perception of water as an integral part of the ecosystem, a natural 28 See also, The Human Right to Safe Drinking Water and Sanitation in Law and Policy A Sourcebook, Wash United, 2012; F. Sultana & A. Loftus (Eds.), The Right to Water: Politics, Governance and Social Struggles, Taylor & Francis, 2011; P.H. Gleick, ‘The Human Right to Water’,1 Water Policy, 1998, pp. 487-503. 29 Declaration of the United Nations Conference on the Human Environment, Principle 1. 30 Report of the United Nations Water Conference, Mar del Plata, 14-25 March 1977, United Nations publication, Sales No. E.77.II.A.12, Chap. I. 31 Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992, Vol. I, Resolutions Adopted by the Conference, United Nations publication, Sales No. E.93.I.8 and corrigendum, Res. 1, Ann. II.

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11  Human Rights to Safe Drinking Water resource and a social and economic good, whose quantity and quality determine the nature of its utilization.32 As it has been mentioned before, the Millennium Declaration and Political Declaration of Johannesburg33 urge to improve the efficient use of water resources and promote their allocation among competing uses in a way that gives priority to the satisfaction of basic human needs and balances the requirement of preserving or restoring ecosystems and their functions, in particular in fragile environments, with human domestic, industrial and agriculture needs, including safeguarding drinking water quality; [. . .] and [. . .] to speedily increase access to such basic requirements as clean water, sanitation, adequate shelter, energy, health care, food security and the protection of biodiversity.34 The 1994 Program of Action of the International Conference on Population and Development (hereinafter ‘ICPD’) states that “large segments of many populations remain at risk of infectious, parasitic and water-borne diseases” and explicitly recognizes the right to an adequate standard of living, including water and sanitation.35 The Parliamentary Assembly of the Council of Europe (hereinafter ‘PACE’) has declared itself in favour of the human right to water. Recognizing access to water as a fundamental human right could serve as an important tool to encourage governments to improve their efforts to meet basic needs and accelerate progress towards achieving the MDGs. A rights-based approach to water would be a very important means for civil society to hold their governments accountable for ensuring access to an adequate quantity of good quality water as well as sanitation.36 The PACE also declared that the Assembly reiterates the recommendations to member states made in Resolution 1449 (2005) and draws attention “to the urgency to take action to ensure access to water and sanitation for all; such access to water should be considered a fundamental human right [. . .].” The Assembly asked the Committee of Ministers to continue the involvement of the Council of Europe in this important issue and to support a rights-based approach to water.37 In 2006 the Abuja Declaration first adopted by the Africa-South America Summit affirmed that “we shall promote the right of our citizens to have access to clean and safe water and sanitation within our respective jurisdictions.”38

32 Agenda 21, Chap. 18 Protection of the quality and supply of freshwater resources: application of integrated approaches to the development, management and use of water resources (last accessed 14 November 2012). 33 A/CONF.199/20 & A/CONF.199/20/Corr.1. 34 IV. Protecting and managing the natural resource base of economic and social development, 26.c. p. 27. 35 A/CONF.171/13: Report of the ICPD (94/10/18) (385k), Chap. VIII, Health, Morbidity and Mortality. 36 Recommendation 1731 (2006) of the PACE of the Council of Europe. 37 Ibid. 38 ASA 1st Summit Meeting which was held in Abuja, Nigeria in November 2006, VI. Water Resources, .

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Erzsébet Kardos Kaponyi In 2007, the first Asia-Pacific Water Summit in Japan adopted the ‘Message from Beppu’, which recognizes “people’s right to safe drinking water and basic sanitation as a basic human right”.39 The third South Asian Conference on Sanitation (hereinafter ‘SACOSAN’) in 2008 reaffirmed through the Delhi Declaration that access to safe drinking water and basic sanitation constitutes a basic human right. The Delhi Declaration was signed by all the heads of delegations of the participating eight SAARC nations40 and states in unequivocal terms the actions and commitments of all the nations towards recognising sanitation as a basic human right, and making full attempt towards achieving the sanitation-related national and millennium development goals by 2015. The declaration document also contains an Indicative Roadmap 2015, which outlines a nation-wise plan for achieving these national and millennium development goals.41 In principle, several international human rights conventions state provisions which could amount to an – implicit or explicit – recognition of the right to water. Among the International Bill of Human Rights, the Universal Declaration of Human Rights (hereinafter ‘UDHR’) states that everyone has the right to “a standard of living adequate for [his or her] health and well-being”, including food and housing.42 The right to water is not explicitly recognised in this article, but mutatis mutandis these rights could not be realized without access to water. The International Covenant on Civil and Political Rights (hereinafter ‘ICCPR’) stipulates a number of rights the fulfilment of which requires access to water, e.g. “every human being has the inherent right to life”.43 The International Covenant on Economic, Social and Cultural Rights (hereinafter ‘ICESCR’) also implicitly recognizes the right to water. The right to an adequate standard of living and the enjoyment of the highest attainable standard of physical and mental health, both enshrined in the ICESCR, have been officially interpreted by the Committee on Economic, Social and Cultural Rights (hereinafter ‘CESCR’) as to include the right to water.44 The Convention on the Elimination

39 1st Asia-Pacific Water Summit – Water Security: Leadership and Commitment. Secretariat of the 1st AsiaPacific Water Summit (Ed.), Message from Beppu. The Proceedings of the 1st Asia-Pacific Water Summit 2008, pp. 205-206. 40 The South Asian Association for Regional Cooperation (SAARC) was established on December 8 1985 to organize and unite the governments of its seven original members: Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka to promote mutual progress and development. Afghanistan later joined the SAARC in 2007 bringing the total number of members up to eight. There are also nine observer states: ­Australia, China, the European Union, Japan, Iran, Mauritius, Myanmar, South Korea, and the United States. 41 Third South Asia Conference on Sanitation (SACOSAN 2008), organised by Government of India, was held in New Delhi, during 16-21 November 2008, with the theme as ‘Sanitation for Dignity and Health’. 42 (Last accessed on 12 December 2012). 43 Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in accordance with Art. 49. 44 Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 3 January 1976, in accordance with Art. 27.

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11  Human Rights to Safe Drinking Water of All Forms of Discrimination Against Women (hereinafter ‘CEDAW’)45 mentions water explicitly by stating that rural women have a right to adequate living conditions, including access to water, and the Convention on the Rights of the Child (hereinafter ‘UNICEF’) maintains that all children have a right to the highest attainable standard of health guaranteed inter alia through the provision of adequate clean drinking water.46 The Convention on the Rights of Persons with Disabilities (hereinafter ‘CRPD’) recognizes “the right of persons with disabilities to social protection [. . .] including measures to ensure equal access by persons with disabilities to clean water”.47 Attention should also be given to ILO Convention No. 161 of 1985 on Occupational Health Services.48 These documents derived the right to water from other human rights, such as the right to life, the right to health, the right to food or the right to an adequate standard of living. Mention should also be made of the documents adopted on the regional level; the African Charters on Human and People’s Rights note the importance of assuring safe water to the population.49 The African Charter on the Rights and Welfare of the Child (hereinafter ‘ACERWC’) in its Article 14, Health and Health Services, states that state parties shall undertake to pursue the full implementation of the rights under the Charter and in particular shall take measures to ensure the provisions of the Charter including that related to adequate nutrition and safe drinking water.50 The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa51 also includes specific provisions on access to water. Article 11 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) only generally states that “[. . .] everyone shall have the right to live in a healthy environment and

45 46 47 48

(last accessed on 12 December 2012). (last accessed on 12 December 2012). (last accessed on 12 December 2012). Art. 5: “Without prejudice to the responsibility of each employer for the health and safety of the workers in his employment, . . . occupational health services shall have such of the following functions . . .” (b) Surveillance of the factors in the working environment and working practice which may affect workers’ health, including sanitary installations [. . .]. 49 See also, J. Oloka-Onyango, ‘Human Rights and Sustainable Development in Contemporary Africa: A New Dawn, or Retreating Horizons?’, 6 Buffalo Human Rights Law Review, 2000. 50 OAU Doc. CAB/LEG/24.9/49 (1990), entered into force 29 November 1999. As of November 2010, all member states of the AU have signed the Children’s Charter and all save for eight have ratified it. The eigth member states which have signed but not yet ratified the Charter are: Central African Republic, Democratic Republic of Congo, Sahrawi Arab Democratic Republic, Somalia, Sao Tome and Principe, Swaziland, South Sudan and Tunisia. Art. 14: “1. Every child shall have the right to enjoy the best attainable standard of physical, mental and spiritual health. 2. States parties to the present Charter shall undertake to pursue the full implementation of this right and in particular shall take measures: [. . .] (c) To ensure the provision of adequate nutrition and safe drinking water.” 51 Art. 15: “Right to Food Security States parties shall ensure that women have the right to nutritious and adequate food. In this regard, they shall take appropriate measures to: (a) Provide women with access to clean drinking water (. . .)”.

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Erzsébet Kardos Kaponyi to have access to basic public services”.52 Obligations may also be gleaned from other human rights instruments, as well as under humanitarian law (Geneva Conventions) and environmental law treaties. International humanitarian law stipulates obligations related to access to water and sanitation. The Geneva Conventions inter alia establish the right of civilians and prisoners of war to a standard of living adequate for health and well-being, including water for both drinking and sanitation purposes.53 The European Commission of the United Nations for Europe (hereinafter ‘UNECE’) Protocol on Water and Health to the 1992 Convention on the Use of Transboundary Watercourses and International Lake takes a holistic approach based on the understanding that water resources play an integral part in ecosystems as well as in human societies and economies.54 According to the Protocol on Water and Health, each party has the obligation to establish and publish its national targets and the respective target dates for each target area within two years of becoming a party.55 The document on ‘No one left behind: Good practices to ensure equitable access to water and sanitation in the pan-European region’ which was prepared by a drafting group of experts was discussed during the Workshop on equitable access to water and sanitation: Challenges, good practices and lessons learned (4-5 July 2011, Geneva) and then released for dissemination at the Sixth World Water Forum which was held in Marseille, France, on 13 March 2012. The human right to water and sanitation and water and health, including ensuring equitable access to water and sanitation was one of the main subjects. The Forum declared that since the recognition of the human right to water and sanitation by the General Assembly of the United Nations

52 P.R. Ghandhi (Ed.), Blackstone’s Statutes, International Human Rights Documents, 6th edn, Oxford University Press, pp. 381-387. See (last accesed on 12 December 2012). 53 The Detaining Power shall supply prisoners of war who are being evacuated with sufficient food and potable water, and with the necessary clothing and medical attention [. . .]. Sufficient drinking water shall be supplied to prisoners of war [. . .]. (Art. 26.). Also, apart from the baths and showers with which the camps shall be furnished prisoners of war shall be provided with sufficient water and soap for their personal toilet and for washing their personal laundry; the necessary installations, facilities and time shall be granted them for that purpose (Art. 29). The Detaining Power shall supply prisoners of war during transfer with sufficient food and drinking water to keep them in good health, likewise with the necessary clothing, shelter and medical attention (Art. 46). Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949. The Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, United Nations, Treaty Series, Vol. 75, No. 973. 54 (last accessed on 14 November 2012). See also, The Water Convention: serving the planet; The Convention on the Protection and Use of Transboundary Watercourses and International Lakes aims to protect and ensure the quantity, quality and sustainable use of transboundary water resources by facilitating and promoting cooperation. 55 As far as Hungary concerned, most of the targets set and the framework for their implementation are determined by the EU requirements. After a first review of progress in 2008, the targets and target dates have been slightly amended. Most target areas under Art. 6.2 of Protocol have been covered. Some targets have not yet been set but planned. No target will be set under Art. 6.2.g (i) as it is not relevant. An extra target has been set related to the expected impact of climate change.

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11  Human Rights to Safe Drinking Water .

and the Human Rights Council in 2010, ensuring access to water and sanitation for all is no longer simply an aspiration: it is now a legal obligation for Governments. The right to water has been acknowledged by two expert bodies: the CESCR and the Sub-Commission for the Promotion and Protection of Human Rights. The General Comment No. 15 (2002): The right to water (Arts. 11 and 12) of the International Covenant on Economic, Social and Cultural Rights (CESCR) underlined that human right to water is indispensable for leading a life in human dignity.56 It identified that the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. An adequate amount of safe water is necessary to prevent death from dehydration, to reduce the risk of water-related disease and to provide for consumption, cooking, personal and domestic hygienic requirements.57 The right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it has been one of the most fundamental conditions for survival.58 The General Comment also emphasized that the right to water should also be considered in conjunction with other rights enshrined in the International Bill of Human Rights,59 foremost amongst them the right to life and human dignity and the right to the highest attainable standard of health and the rights to adequate housing and adequate food as formulated in CESCR.60 As far as the normative content of the right to water is concerned, the CESCR Committee argued that the right to water contains both freedoms and entitlements. The freedoms include the right to maintain access to existing water supplies necessary for the right to water, and the right to be free from interference, such as the right to be free from arbitrary disconnections or contamination of water supplies.61 By contrast, the entitlements include the right to a system of water supply and management that provides equal opportunity

56 The CESCR should adopt a General Comment on the right to sanitation as well. 57 Water, and water facilities and services, must be affordable for all. The United Nations Development Programme (UNDP) suggests that water costs should not exceed 3% of household income . (last accessed on 15 November 2012). 58 E/C.12/2002/11, 20 January 2003. 59 The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and their Optional Protocols. 60 In the 1994 Programme of Action of the International Conference on Population and Development, states affirmed that all people have a right to an adequate standard of living, including adequate food, clothing, housing, water and sanitation, indicating that states defined the right to an adequate standard of living as including water and sanitation. (last accessed on 15 November 2012). 61 See also, A. Khalfan, ‘The human right to water: Recent progress and continuing challenges’, 11 Human Rights Tribune3, 2005, Special Feature – Economic, Social and Cultural (ESC) Rights, V. Roaf, A. Khalfan & M. Langford, Monitoring Implementation of the Right to Water: A Framework for Developing Indicators, Heinrich Böll Foundation, Berlin, 2005. (last accessed on 23 February 2012).

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Erzsébet Kardos Kaponyi for people to enjoy the right to water.62 The adequacy of water was described in the terms of availability, quality, accessibility (physical accessibility,63 economic accessibility, nondiscrimination) and accessibility of information. As regards the states’ obligations, the CESCR Committee referred to the general concept of the ‘progressive realization’ of the International Covenant for Economic, Social and Cultural Rights, which requires each state to take steps “to the maximum of its available resources, with a view to achieving progressively the full realization of the rights [. . .].” The General Comment No. 15 stressed that the state parties have a constant and continuing duty under the Covenant to move as expeditiously and effectively as possible towards the full realization of the right to water.64 The Committee pointed out that the right to water, like any human right, imposes three types of obligations on states parties: obligation to respect, obligation to protect and obligation to fulfil. ‘The obligation to protect’ demands that governments refrain from unjustly interfering with individuals’ access to safe drinking water and sanitation. ‘The obligation to respect’ demands that governments ensure that third parties, including individuals, groups, corporations and other entities under their authority do not interfere with individuals’ access to safe drinking water and sanitation. ‘The obligation to fulfil’ demands that states to adopt the necessary measures directed towards universal access to safe drinking water and sanitation.65 In 2006, the Sub-Commission on the Promotion and Protection of Human Rights built on the work of the Committee adopting the Guidelines for the Realization of the Right to Drinking Water and Sanitation. Following up on this impulse, in September 2007, the High Commissioner for Human Rights presented a study to the Human Rights Council on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments.66 In its Decision 2/104 on Human Rights and Access to Water on 27 November 2006, the UN Human Rights Council requested the Office of the United Nations High Commissioner for Human Rights (hereinafter ‘OHCHR’), to present a study on “the scope and content

62 E/C.12/2002/11, 20 January 2003, para. 10, p. 4. 63 Everyone has the right to a water and sanitation service that is physically accessible within, or in the immediate vicinity of the household, educational institution, workplace or health institution. According to WHO, the water source has to be within 1,000 metres of the home and collection time should not exceed 30 minutes. 64 Ibid.,. para. 18, p. 8. 65 See Mr. Simon Walker’s presentation on ‘human rights obligations related to access to safe-drinking water and sanitation” and started by highlighting the following parameters of the Human Rights Council Decision 2/104 Human Rights and Access to Water. 66 Human Rights Council, Sixth session, Item 2 of the provisional agenda A/HRC/6/3, 16 August 2007; Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments. (last accessed on 15 November 2012).

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11  Human Rights to Safe Drinking Water of the relevant human rights obligations related to equitable access to safe-drinking water and sanitation under international human rights instruments”.67 The UN Human Rights Council requested the OHCHR to take into account the views of states and other stakeholders, to conduct within existing resources a detailed study on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments, which includes relevant conclusions and recommendations thereon, to be submitted prior to the sixth session of the Council.68 As the result of a broad consultation process, almost a hundred responses were received from states, intergovernmental organizations, local governments, national human rights institutions, non-governmental organisations (hereinafter ‘NGOs’), the business sector, universities and individuals.69 OHCHR also held a consultation on 11 May 2007 on ‘Human Rights and Access to Safe-Drinking Water and Sanitation’, which focused on the scope and content of human rights obligations to provide access to safe drinking water and sanitation. Pursuant to Human Rights Council decision 2/104 of 27 November 2006 on human rights and access to water, a report of the United Nations High Commissioner for Human Rights was submitted on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments.70 In its conclusions the report stated that access to safe drinking water and sanitation is an issue of great importance to the international community. The considerable number of submissions received from Governments, intergovernmental organizations, national human rights institutions and civil society are evidence not only of the interest in this issue, but also of the growing recognition that access to safe drinking water and sanitation must be addressed within a human rights framework. [. . .] Importantly, an increasing number of states are recognizing safe drinking water as a human right in their constitutions, as well as national legislation, while national courts are enforcing it as a justiciable right.71 67 68 69 70

(last accessed on 15 November 2012). Council’s Dec. 2/104, Human Rights and Access to Water. (last accessed on 15 November 2012). Human Rights Council Sixth session Item 2 of the provisional agenda A/HRC/6/3, 16 August 2007. The report is divided into five chapters. Chapter I review the legal framework and existing obligations related to equitable access to safe drinking water and sanitation. Chapters II, III and IV review the scope and content of the term “access to safe drinking water and sanitation”, the nature of States’ obligations in relation to access to safe drinking water and sanitation and the question of monitoring. Chapter V discusses issues needing further elaboration and Chapter VI sets out some conclusions and recommendations for consideration by the Council. 71 The High Commissioner: encouraged the Human Rights Council to continue its consideration of human rights obligations in relation to access to safe drinking water and sanitation as set out in the Report. The states, intergovernmental organizations, national human rights institutions, civil society and business enterprises were encouraged to identify good practices in the field of safe drinking water, sanitation and human rights and make them available to the Office of the United Nations High Commissioner for Human Rights. Ibid. pp. 25-26. (last accessed on 14 November 2012).

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Erzsébet Kardos Kaponyi The report also highlighted that existing human rights instruments have provided the basis for expert human rights bodies to elaborate on states’ obligations, but further efforts were needed to elaborate the normative content of human rights obligations in relation to access to sanitation; the human rights obligations attached to the elaboration of a national strategy on water and sanitation; the regulation of the private sector in the context of private provision of safe drinking water and sanitation; the criteria to protect the right to safe drinking water and sanitation in case of disconnection; and the specific obligations of local authorities.72 The UN General Assembly on its 108th plenary meeting on 28 July 2010 adopted a historic Resolution 64/292, which recognized access to clean water and sanitation as a human right.73 The resolution acknowledged the importance of equitable access to safe and clean drinking water and sanitation as an integral component of the realization of all human rights. The resolution recognized “the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights”.74 These resolutions built on General Comment No. 15: The right to water, which stated as described above that a human right to water existed under the International Covenant on Economic, Social and Cultural Rights and that the right to water was ‘inextricably related’ to the existing rights to an adequate standard of living and to health. Comment 15 also defined the right to water as every person’s entitlement to “sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses”. The resolution called upon states and international organizations to provide financial resources, capacitybuilding and technology transfer, through international assistance and cooperation, in particular to developing countries, in order to scale up efforts to provide safe, clean, accessible and affordable drinking water and sanitation for all. Based on the above-mentioned Resolution 64/292 of the General Assembly, on 30 September 2010, the Human Rights Council in Geneva adopted a resolution on ‘The human right to safe drinking water and sanitation’. In Resolution 15/9, it affirmed that the human right to water and sanitation was derived from the right to an adequate standard of living and was inextricably related to the right to the highest attainable standard of physical and mental health, as well as the right to life and human dignity. In 2008, the United Nations appointed an independent expert, as Special Rapporteur on the human right to safe drinking water and sanitation. Catarina de Albuquerque had a mandate for a three-year term; which was extended in 2011 for another three years.75 The mandate of the Special Rapporteur on the human right to safe drinking water and sanitation was established to examine the aforementioned crucial issues and provide

72 Ibid. 73 GA/RES/64/292. 74 GA/RES/64/292, The human right to water and sanitation. 75 (last accessed 15 November 2012).

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11  Human Rights to Safe Drinking Water recommendations to governments, to the United Nations and other stakeholders. The Special Rapporteur on the human right to safe drinking water and sanitation carries out thematic research, undertakes country missions, collects good practices and works with development practitioners on the implementation of the rights to water and sanitation. In her last report, prepared for the Human Rights Council’s 21st session in 2012, the Special Rapporteur focused on the issue of stigmatization in the realization of the rights to water and sanitation. The Special Rapporteur on the human right to safe drinking water and sanitation explored the deep, yet often ignored connections that exist between social stigma and violations of the human rights to water and sanitation. The report examines different manifestations of stigma, and situates these in the human rights framework considering, in particular, human dignity, the human rights to water and sanitation, non-discrimination, the prohibition of inhumane or degrading treatment and the right to privacy. It explores recommendations for policy-making and solutions to prevent and respond to human rights violations resulting from stigma.76 The Special Rapporteur on the human right to safe drinking water and sanitation plans to develop a practical guidance on the implementation of the human rights to water and sanitation, which will provide detailed guidance, as well as examples of good practices, on what is expected from states and other stakeholders regarding the implementation of these rights.77 It has been shown that the right to water has an important input for the development of human rights at both the international and national levels. By all odds some steps were made. At the initial Rio+20 negotiations in 2011 several human rights and NGOs warned that the human right to water and sanitation was under threat. This started when the UK, working within the European Union (hereinafter ‘EU’), first proposed to delete para. 67 from the zero draft. On 12 September 2012, in the statement delivered by Special Rapporteur on the right to safe drinking water and sanitation – responses to Human Right Council questions – Catarina de Albuquerque welcomed the statement made by the European Union recognizing for the first time the human right to water and sanitation as a component of the right to an adequate standard of living. She also welcomed the statement by the United Kingdom specifically recognising the human right to sanitation.78 It should 76 (last accessed on 15 November 2012). 77 In the form of a ‘handbook’ or a similar instrument. 78 The human right to sanitation: The right to sanitation is an element of “the right of everyone to an adequate standard of living for himself and his family” (Art. 11 of the International Covenant on Economic, Social and Cultural Rights or ICESCR). The UK considers that a right to sanitation entails achieving the outcome of providing a system for the treatment and disposal or re-use of human sewage and associated hygiene. It entitles right-holders to reasonable access to the elements of the right, but allows for recovery of the cost of providing such access, including any environmental and resource costs. The right does not prescribe any particular model of delivery for public and private sectors. It also does not require the collection and transport of human waste. However, in their interpretation of this right, the government excludes “the collection and transport of human waste”. It also does not accept, in their entirety, specific U.N. documents on the right to water and sanitation. (last accessed 15 November 2012).

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Erzsébet Kardos Kaponyi be pointed out that the United Kingdom had originally abstained from voting on the resolution on the right to water and sanitation at the UN General Assembly in 2010. Then they stated that the UK did not believe that there was a sufficient legal basis under international law to declare sanitation as a human right. In terms of the next steps and activities for the next two years under her mandate, the Special Rapporteur envisaged an even stronger focus on implementation. Canada, later joined by the United States and Israel, continued to call for the deletion of para. 67. Intense lobbying, supported by UN High Commissioner for Human Rights Navanethem Pillay, “Rio+20: “Do not betray your commitments on the human right to water and sanitation”79 calling for human rights to be protected in the Rio negotiations finally convinced Canada to drop its opposition to the recognition of water and sanitation as a human right. The statement of Catarina de Albuquerque, namely, “In order to achieve the future we want, we need to again underline our commitments to the human right to water and sanitation. We need to speak up for the millions who are marginalized and forgotten – people sleeping on the street, girls who walk miles to fetch water every day, boys who drop out of school because of diarrhoea, people who cannot access water because of their disabilities” was reinforced by Navanethem Pillay’s open letter.80 European Union High Representative for Foreign Affairs and Security Policy, Catherine Ashton stated in March 2011 that the EU acknowledges the recent recognition of the human right to water and sanitation by the UN General Assembly, and the Human Rights Council’s specification that this right is part of the human right to an adequate standard of living.81 Catherine Ashton also mentioned that the European Union reaffirmed that all states bear human rights obligations regarding access to safe drinking water, which must be available, physically accessible, affordable and acceptable. The EU also recognizes that the human rights obligations regarding access to safe drinking water and to sanitation are closely related with individual human rights – as the rights to housing, food and health.82 But even more than being related to individual rights, access to safe drinking water is a basic element of the right to an adequate standard of living and is closely related to human dignity. The EU acknowledges the fact that several United Nations bodies, civil society organizations, experts, practitioners, governments and others call for a broader recognition

79 N. Pillay, Open Letter, 30 March 2012. 80 (last accessed 15 November 2012). 81 Declaration by the High Representative, Catherine Ashton, on behalf of the European Union on the occasion of the World and European Water Day (17th World Water Day and the 2nd annual European Water Day). (last accessed on 15 November 2012). 82 Ibid.

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11  Human Rights to Safe Drinking Water of the human right to water. Access to adequate and safe sanitation constitutes one of the principal mechanisms for protecting the quality of drinking water. The EU applauds the efforts taken by some countries – including a number of EU member states – to improve this tragic situation, by taking specific measures, including legislative ones, at the national and international levels to improve access to safe drinking water and to sanitation.83 11.3 Conclusions Notwithstanding the Human Rights Council’s 2010 resolution and declarations on the human right to water, discussions continue over how useful a rights approach really is. The latest study presented by the UN High Commissioner for Human Rights to the Human Rights Council specifically affirmed the necessity to do further research on human rights, e.g. the right to water in the context of trade and investment agreements. The abuse, mismanagement and treatment of water, climate change and environmental destruction also need further studies. Under international law, there is no clear consensus on this new right; there is no legally binding result so far. The clear definition of the right to water could strengthen its position among human rights and an appropriate regulation of access to water could be a powerful tool to reduce poverty and eliminate discrimination and social injustice. In order to change the current situation, human rights and development policies must be more effective by explicitly recognizing the right to water under international law in order to promote the world population’s access to its vital needs. There is a need for a new UN Convention84 on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and levels of sanitation. The examination of the different hypotheses should deliver new legal arguments in favour of including the right to water in positive international law on human rights.85 As the study prepared by the World Water Council stated: “The implementation of the right to water requires a clear definition of rights, obligations and responsibilities of each stakeholder, the identification of an authority to oversee the implementation of this right, as well as the allocation of adequate human and financial resources”.86 83 Ibid. 84 See also (last accessed on 20 December 2012). 85 See also New source book on the human right to safe drinking water and sanitation, 2012, WASH United, together with Freshwater Action Network and Waterlex, have published a comprehensive source book on laws and policies guaranteeing the human right to safe drinking water and sanitation at national, regional and international levels. 86 C. Dubreuil, The Right to Water: From concept to implementation, World Water Council, 2006, Summary para. 6. (last accessed on 17 December 2012).

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Erzsébet Kardos Kaponyi In the absence of a binding international convention, access to water could not yet be considered as an enforceable basic human right. The lack of clean drinking water and sanitary facilities is the key hallmark of poverty, and if nothing changes de facto to improve that situation, this could lead to further social and political unrest and environmental pollution. In practice, much will depend on the political will of the states and on how the states implement the new rules in their national law. Much work remains to be done about the impact of privatization on access to safe drinking water and sanitation. To change the present situation, further consultations would be necessary with a wide range of stakeholders and with different actors to discuss the scope and content of human rights obligations related to access to safe drinking water and sanitation under international human rights instruments. It is indispensable that further steps be taken to ensure the full exercise and progressive enhancement of the right to water and sanitation, including the formulation, adoption and implementation of policy, legislative and other measures at the national and international levels.

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12

Old-Age Discrimination: The Age-Blindness of International Human Rights Law

Adrienne Komanovics* “. . . today’s younger adults are tomorrow’s older people.”1

12.1 Introduction and Definitional Issues According to a UN survey, the world’s population is ageing at an unprecedented rate. Older people will outnumber children for the first time in history in 2050.2 The Population Division of the Department of Economic and Social Affairs of the United Nations Secretariat stated that “[t]he number of older people over 60 years is expected to increase from about 600 million in 2000 to over 2 billion in 2050. This increase will be the greatest and the most rapid in developing countries, where the number of older people is expected to triple during the next 40 years. By 2050, over 80% of older people worldwide will be living in developing countries.”3 In Europe, one third of the population will be 60 years and older in 2050.4 In addition, ageing has a gender aspect: women tend to live longer than men, and more older women than men live alone.5 Often, older women have to reconcile their work not only with “normal” family issues, but also with care responsibilities.6 This challenge would inevitably justify the adoption of a specific international document dedicated to the issues and problems faced by older persons. In fact, though the period

*

1 2 3 4 5 6

LL.M, Ph.D, works at the Department of Public International and European Law of the Faculty of Law, University of Pécs. Her main research fields include the public law aspects of the European Union, democracy in the European Union,the protection of human rights at the universal level and in the framework of European organizations, UN human rights treaty monitoring. Strengthening Older People’s Rights: Towards a UN Convention. Booklet prepared (produced) by INPEA (International Network for the Prevention of Elder Abuse) et al, 2010, p. 5. Available at . Summary of the Report of the Secretary-General to the GA. The report (A/66/173) is submitted pursuant to the General Assembly resolution 65/182 of December 2010. Population Division of the Department of Economic and Social Affairs of the United Nations Secretariat, World Population Prospects: the 2008 Revision: . WHO Regional Office for Europe: European report on preventing elder maltreatment (2011), p. 1. CEDAW General Recommendation No. 27, para. 5. PACE Resolution 1793(2011): Promoting active ageing: capitalising on older people’s working potential, para. 3.

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Adrienne Komanovics since 1945 has witnessed an unprecedented expansion in human rights instruments,7 these instruments are age-blind. While covering some age-related aspects, existing i­ nternational human rights law does not explicitly recognize the position of older people. Furthermore, these instruments fail to consider the diversification of this segment of the society. Older people do not constitute a homogenous group. Older migrants, old women or indigenous older persons face multidimensional discrimination and, consequently, are particularly at risk. Unfortunately, contemporary society often considers older persons as incapable of being independent. They are regarded as dependants receiving certain social benefits.8 This approach, however, can no longer be maintained.9 It is argued that bringing about a paradigm shift would help reframe older persons as holders of rights rather than recipients of welfare and charity.10 Inevitably, the concept of old age is multidimensional, including chronological, physiological and social age. Chronological age is essentially biological in nature. Nowadays, this is defined as beginning at 60 or 65 years. Physiological age is linked to chronological age, and relates to the loss of functional capacities. Finally, social age refers to the attitudes and behaviours that are regarded as being appropriate for a given chronological age group.11 Since there is no comprehensive definition, the Drafting Group on the Human Rights of the Elderly of the Steering Committee for Human Rights, set up by the Council of Europe, 7 At universal level: the International Covenant on Economic, Social and Cultural Rights (1966) and the International Covenant on Civil and Political Rights (1966). In Europe: the Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and the Protocols attached to it; the European Social Charter (1961) and the European Social Charter (Revised) (1996). In America: the American Convention on Human Rights (1969) and the Additional Protocol to the ACHR in the area of Economic, Social and Cultural Rights (1988). In Africa: African Charter on Human and Peoples’ Rights (1981). Specific instruments include the International Convention on the Elimination of All Forms of Racial Discrimination (1965), Convention on the Elimination of All Forms of Discrimination against Women (1979), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (1984), Convention on the Rights of the Child (1989), International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), International Convention for the Protection of All Persons from Enforced Disappearance (2006) and the Convention on the Rights of Persons with Disabilities (2006) Available at . 8 ECLAC: Ageing and the protection of human rights: current situation and outlook (April 2011), Document submitted to the First Session of the Open-ended Working Group on strengthening the protection of the human rights of older persons, convened from 18 to 21 April 2011, p. 16. 9 “Older people suffer from prejudice viewing them as non-productive members of society and therefore not worthy of full social participation.” Keynote by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, held at the 5th Warsaw Seminar on Human Rights, reproduced in CDDH(2012)005, p. 3. 10 UN General Assembly, Report of the Open-ended Working Group on Ageing (Rapporteur: Léo Faber), A/AC.278/2011/4, 17 May 2011, p. 7. 11 ECLAC: Ageing and the protection of human rights: current situation and outlook (April 2011). Document submitted to the First Session of the Open-ended Working Group on strengthening the protection of the human rights of older persons, convened from 18 to 21 April 2011; at p. 14. Available at .

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 12 Old-Age Discrimination does not agree with the numerical delineation of old age. Instead, it is argued that old age is linked to internal factors such as the vulnerability of persons resulting from ageing, in interaction with external factors, such as social, cultural and economic factors resulting in discrimination.12 Various sources use several terms when referring to old persons, such as older persons, elder persons, the elderly, older adults, senior citizens, or even tercera edad (third age or old age in English). These terms will be used interchangeably throughout this article.13 Since the great majority of legal instruments and cases under review in this paper operate with the concept of discrimination, a working definition of discrimination based on age will be offered. Indeed, equality before the law, as well as substantive equality, lies at the heart of any human rights regime. Thus, based on the definition of other conventions,14 “age discrimination” means any distinction, exclusion or restriction based on age which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, ­economic, social, cultural or any other field of public life. In a less legally complex formulation, age discrimination is “when someone is treated differently, with an unreasonable or disproportionate impact, simply because of their age.”15 As mentioned above, older persons are a highly diverse group. Age-related discrimination is often compounded by other grounds of discrimination, such as sex, sexual orientation or gender identity, socio-economic status, ethnicity, literacy levels, disability or health status. Furthermore, migrants, persons living in poverty or social exclusion, persons of African descent and persons belonging to indigenous peoples, homeless persons, persons

12 Drafting Group on the Human Rights of the Elderly of Steering Committee for Human Rights (CDDH-AGE), Meeting Report (1st meeting), Strasbourg, 23 March 2012, CDDH-AGE(2012)R1, para. 13. – Quite interestingly, notwithstanding their denomination, the CDDH-AGE prefers the expression “older people” to “the elderly”. Ibid. para. 13. 13 The Committee on Economic, Social and Cultural Rights (CESCR) provides the following overview: “The terminology used to describe older persons varies considerably, even in international documents. It includes: “older persons”, “the aged”, “the elderly”, “the third age”, “the ageing”, and, to denote persons more than 80 years of age, “the fourth age”. The Committee opted for “older persons” (in French, personnes âgées; in Spanish, personas mayores), the term employed in General Assembly resolutions 47/5 and 48/98. According to the practice in the United Nations statistical services, these terms cover persons aged 60 and above (Eurostat, the statistical service of the European Union, considers “older persons” to mean persons aged 65 or above, since 65 is the most common age of retirement and the trend is towards later retirement still”). CESCR General Comment No. 6, para. 9. 14 Art. 1(1) of the Convention on the Elimination of All Forms of Racial Discrimination, Art. 1 of the Convention on the Elimination of All Forms of Discrimination against Women, and Art. 2 of the Convention on the Rights of Persons with Disabilities. See also, the definition of discrimination in Art. 2 of the Preliminary Draft Inter-American Convention on Protection of the Human Rights of Older Persons, CAJP/GT/DHPM37/12 (30 April 2012). 15 HelpAge: Briefing Paper for the 1st session of the OEWG on Ageing; Document submitted to the First Session of the Open-ended Working Group on strengthening the protection of the human rights of older persons, convened from 18 to 21 April 2011, p. 3.

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Adrienne Komanovics in prison and persons belonging to traditional peoples face aggravated discrimination at an advanced age.16 To this already long list we can also add the “oldest” and the dependent old persons. The last concept to be covered is ageism, which can be defined as “the stereotyping and prejudice against older people that can lead to age discrimination.”17 Ageism manifests itself in mistreatment, “ranging from stereotypic and degrading media images to physical and financial abuse, unequal treatment in the workforce, and denial of appropriate medical care and services.”18 To tackle this phenomenon,19 states must introduce measures to promote the transmittal of a dignified image of old age, to remove prejudice and stereotypes.20 The aim of this article is twofold. Firstly, it briefly describes the existing legal framework at universal (Section 2) and regional level (Section 3). A more detailed analysis of the existing universal human rights instruments potentially relevant for age-related issues is available elsewhere by the author of this paper.21 Secondly, the paper describes the direct and indirect protection afforded to older persons by the case law of European Court of Human Rights (Section 4). While this paper cannot undertake to provide a whole coverage of the challenges created by increased longevity, it endeavours to draw a few conclusions in Section 5.

12.2 Survey of the Existing Human Rights Framework: The Universal Level Any recollection of the most important milestones of human rights history must certainly be started with the Universal Declaration of Human Rights (1948), which provides inter alia for freedom and dignity, prohibition of discrimination, and the right to an adequate 16 See e.g., Art. 6(e) of the Preliminary Draft Inter-American Convention on Protection of the Human Rights of Older Persons. 17 Working Paper prepared by Mrs Chinsung Chung, Human Rights Council Advisory Committee, A/HRC/ AC/4/CRP. 1 (4 December 2009), para. 8. On stereotypes see e.g., A. Timmer, ‘Toward an Anti-Stereotyping Approach for the European Court of Human Rights’, Human Rights Law Review, Vol. 11, No. 4, 2011, pp. 707-738. 18 Parliamentary Assembly of the Council of Europe: Promoting active ageing – capitalising on older people’s working potential. Report by Denis Jacquat. 18 November 2010. Point 35. 19 “All too often, older persons face employers’ negative perceptions of older workers; age limits, penalties and denials of service imposed by insurance service providers and financial institutions; preconceived notions and negative attitudes on the part of medical staff; and rationing of health care.” Point 57 of the R ­ eport of the Secretary General (Follow-up to the Second World Assembly on Ageing, A/67/188, 2012). On increased longevity see e.g., J. Johnson & R. Slater (Eds), Ageing and Later Life, Sage Publications Ltd/Open University, London, 1993. 20 See e.g., Arts. 18(h) and 22(a)(1) of the Preliminary Draft Inter-American Convention. 21 A. Komanovics, Discrimination: ‘A normative gap in international human rights law’, in: Studia Iuridica Auctoritate Universitatis Pécs Publicata, Pécs, 2013, forthcoming.

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 12 Old-Age Discrimination standard of living.22 We can find non-discrimination provisions in the majority of human rights treaties, such as the International Covenant on Economic, Social and Cultural Rights23 (1966) and the International Covenant on Civil and Political Rights24 (1966). While the Covenants do not list “age” as a prohibited basis of discrimination, these lists are illustrative and non-exhaustive, and usually include an open-ended category (“other status”). Accordingly, treaty monitoring bodies are entitled to consider age-related discrimination.25 The Convention on the Elimination of All Forms of Discrimination Against Women (1979) includes only one specific reference to old age: Article 11(1)e) prohibits discrimination against women in the field of social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave.26 Similarly, the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) contains only a brief reference to old age in its non-discrimination provision. Nonetheless, the Convention is unique in the sense that age is explicitly listed as one of several prohibited grounds for discrimination.27 The Convention on the Rights of Persons with Disabilities (2006) includes various provisions in connection with older persons, such as Article 25(b) on health, and Article 28(2)(b) on an adequate standard of living and social protection. There are additional references to

22 Art. 1, 2 and 25(1) – On the debate over the enforceability and legal status of the Declaration, see e.g., R.K.M. Smith, International Human Rights, 4th edn, Oxford University Press, Oxford, 2010, pp. 37-38. For a very detailed analysis of the human rights approach of age-related issues see, D. Rodríguez-Pinzón & C Martin, ‘The International Human Rights Status of Elderly Persons’, 18 American University International Law Review 4, 2003, pp. 915-1008. 23 Art. 2(2). Other relevant rights of the ICESCR are the right to the enjoyment of the highest attainable standard of physical and mental health (Art. 12), the right to social security (Art. 9), the right to adequate standard of living, including food, clothing and housing (Art. 11), the right to work (Arts. 6 and 7) and the right to education (Art. 13). – See also, Committee on Economic, Social and Cultural Rights, General Comment No. 6, “The economisocial and cultural rights of older persons”. E/1996/22, annex IV. In paras 11 and 12 of this General Comment, the Committee notes that ther important issue is whether discrimination on the basis of age is prohibited by the Covenant. Neither the Covenant nor the Universal Declaration of Human Rights refers explicitly to age as one of the prohibited grounds. Rather than being seen as an intentional exclusion, this omission is probably best explained by the fact that, when these instruments were adopted, the problem of demographic ageing was not as evident or as pressing as it is now. This is not determinative of the matter, however, since the prohibition of discrimination on the grounds of “other status” could be interpreted as applying to age . . . .” 24 Arts. 2(1) and 26. See also, the case law of the Human Rights Committee, Love et al. v. Australia, Communication No. 983/2001, Schmitzde-Jong v. The Netherlands, Communication No. 855/1999, Solís v. Peru, Communication No. 1016/2001 and Althammer et al. v. Austria, Communication No. 998/2001 (available from ). 25 Paras 23 and 24 of Follow-up to the Second World Assembly on Ageing: Report of the Secretary General, UN General Assembly, 66th Session, A/66/173, 22 July 2009, available at . 26 Given the feminization of ageing, the Committee on the Elimination of Discrimination against Women, in 2010, adopted General Recommendation No. 27 on older women and the protection of their human rights under the Convention. 27 Art. 1(1) and Art. 7 of the Convention.

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Adrienne Komanovics age-appropriate access to justice in Article 13 and to age-sensitive measures of protection in Article 16 (freedom from exploitation, violence and abuse).28 The International Labour Organization has also given due consideration to the situation of older workers in its Convention No. 128 on Invalidity, Old-Age and Survivors’ Benefits (1967).29 These instruments have been complemented with various non-binding measures, ­including the United Nations Principles for Older Persons,30 the Vienna International Plan of Action on Ageing, adopted at the (first) World Assembly on Ageing in 1992,31 and the Madrid International Plan of Action on Ageing (MIPAA), 2002, adopted at the Second World Assembly on Ageing, and endorsed by the General Assembly in its resolution 57/167.32 These soft law instruments are expressly dedicated to age-related issues. Among others, the MIPAA recognized older persons as contributors to, not just beneficiaries of, economic and social development. The MIPAA emphasized the inclusion of older persons in deciding policies, rather than having policies designed for them.33 The Universal Periodic Review (UPR), set up in 2006 is a relatively new monitoring machinery where every UN member state reports to the Human Rights Council on its human rights record. As it became clear from the analysis of the various documents issued during the first cycle (2008-2011), older persons have remained invisible in the UPR.34

28 Other relevant provisions of Convention that can potentially benefit older persons include Art. 5 on nondiscrimination, Art. 9 on accessibility, Art. 12 on equal recognition before the law, Art. 19 on living independently and access to in-home, residential and other community support services, Art. 20 on personal mobility, and Art. 26 on habilitation and rehabilitation to maintain maximum independence. 29 Convention concerning Invalidity, Old-Age and Survivors’ Benefits (entry into force: 1 November 1969) Adoption: Geneva, 51st ILC session (29 June 1967). 30 Implementation of the International Plan of Action on Ageing and Related Activities (UN Principles for Older Persons), A/RES/46/91 of 16 December 1991. See . 31 Vienna International Plan of Action on Ageing adopted at the First World Assembly on Ageing. UN GA resolution 37/51 on the question of ageing, 3 December 1982. 32 Madrid International Plan of Action on Ageing, adopted at the Second World Assembly on Ageing, and endorsed by the General Assembly in Res. 57/167, 18 December 2002 see . 33 Other relevant UNGA resolutions include the United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Res. 43/173, 9 December 1988; the Standard Minimum Rules for non-custodial measures (the Tokyo Rules), Res. 45/110, 14 December 1990; the Declaration on fundamental principles of justice for victims of crimes and abuse of power, Res. 40/34, 29 November 1985; the Declaration on the elimination of violence against women, Res. 48/104, 20 December 1993, and the Declaration of the rights of indigenous peoples, Res. 61/295, 13 September 2007. 34 International Network for the Prevention of Elder Abuse: Strengthening Older People’s Rights: Towards a UN Convention (2010), p. 7. Available at . On the major thematic issues discussed during the review see . On UPR generally see e.g., A. Komanovics & N. Mazur-Kumrić, ‘The Human Rights Council and the Universal Periodic Review: A novel method of promoting compliance with human rights’, in T. Drinóczi, M. Župan & Zs. Ercsey (Eds.), Contemporary legal challenges: EU – Hungary – Croatia, Pécs–Osijek 2012, p. 641; V. Haász & M. Szappanyos, ‘Az ENSZ tagállamok emberi jogi helyzetét értékelő egyetemes időszakos felülvizsgálat (UPR)’, 1 Föld-rész 1, 2011, pp. 71-83; A. Komanovics, ‘Kereszttűzben Genfben. Magyarország emberi jogi helyzetének értékelése az ENSZ Emberi Jogi Tanácsában’, 4 Föld-rész 2-4, 2011, pp. 7-27.

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 12 Old-Age Discrimination Finally, an Open-ended Working Group on Ageing was established by the General Assembly through its resolution 65/182 to consider the existing international framework of the human rights of older persons and to identify possible gaps and how best to a­ ddress them.35

12.3 Age-Related Provisions in Regional Human Rights Instruments Turning to the regional human rights instruments, Article 4(5) of the American Convention on Human Rights (1969) prohibits punishment for people under 18 or over 70 years of age. Apart from Article 9(1) on the right to social security in old age and disability, the Additional Protocol in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador, 1988)36 includes a specific article on the protection of the elderly (Art. 17). In ­Africa, Article 18(4) of the African Charter on Human and Peoples’ Rights (1981)37 provides that the aged shall “have the right to special measures of protection in keeping with their physical or moral needs”. Article 22 of the 2003 Protocol38 to the Charter obliges states to provide protection to elderly women. Article 33 of the Arab Charter on Human Rights (2004) provides for outstanding care and special protection for the older persons.39 In addition to this existing framework, important developments have taken place on the American and African continent as well. The African Commission has drafted a Protocol on the Rights of Older Persons in Africa.40 Likewise, Latin American states have been actively working towards the development of a regional convention on the rights of older 35 UN General Assembly Res. 65/182, 21 December 2010, . See also, . 36 The American Convention on Human Rights (“Pact of San José, Costa Rica”), adoption: 22 November 1969, entry into force: 18 July 1978. The Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights (Protocol of San Salvador), adoption: 17 November 1988, entry into force: 16 November 1999. The basic documents of the inter-American system are available at . 37 Adoption on 27 June 1981, entry into force on 21 October 1986. Available at . 38 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2003), adoption on 7 November 2003, entry into force on 25 November 2005. Available at . 39 Art. 33(2): “The State and society shall ensure the protection of the family, the strengthening of family ties, the protection of its members and the prohibition of all forms of violence or abuse in the relations among its members, and particularly against women and children. They shall also ensure the necessary protection and care for mothers, children, older persons and persons with special needs and shall provide adolescents and young persons with the best opportunities for physical and mental development.” (Emphasis added) The Charter is reprinted in International Human Rights Reports, Vol. 12, 2005, p. 893. 40 The draft Protocol on the Rights of Older Persons came up for discussion at the 48th Ordinary Session of the African Commission on Human and Peoples’ Rights (ACHPR) in November 2010. It will be submitted to the African Union in the near future. See and .

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Adrienne Komanovics people. The preliminary draft of this convention was submitted to the Permanent Council of the Organization of American States in April 2012.41 The European Convention on Human Rights,42 the most important European human rights instrument, does not specifically address old age. Nevertheless, several provisions can be relevant, including Article 2 on the right to life, Article 3 on the prohibition of torture and inhuman or degrading treatment, Article 5 on the right to liberty and security, Article 6 on the right to fair trial, Article 8 on the right to respect for private and family life, Article 14 on the prohibition of discrimination (together with Protocol 12). The potential scope of these provisions will be set out in greater detail below, through the examination of the case law of the Court. Suffice here to say that despite the fact that the Court regards the Convention as a living instrument which must be interpreted in the light of present-day conditions,43 the Convention is certainly not tailored to the specific needs of the elderly. The European Social Charter44 is silent on the specific problems of the elderly since ageing was not such a significant issue at the time of the adoption of the Charter. A few decades later, however, Article 4 of the Additional Protocol to the European Social Charter (1988)45 already obliged states parties to enable older persons to remain full members of the society for as long as possible, to choose their life-style and to lead independent lives and to guarantee support for older persons living in institutions respecting their privacy and participation in decisions. In view of the demographic changes, the Revised European Social Charter of 1996 declared that every elderly person has the right to social protection, and integrated verbatim Article 4 of the Additional Protocol.46 The next two milestones of our European review are the European Code of Social Security47 which contains provisions dedicated to old-age benefit (see, Part V, Arts. 25 to 30), and Chapter 2 of the European Convention on Social Security48 providing for invalidity, old age and death pensions.49 41 Preliminary Draft Inter-American Convention on Protection of the Human Rights of Older Persons CAJP/GT/ DHPM 37/12 – available through . The mandate was created by OAS General Assembly resolution AG/RES. 2726 (XLII-O/12), “Protecting the Human Rights of Older Persons”. 42 Convention for the Protection of Human Rights and Fundamental Freedoms (CETS No.: 005), Rome, 4 November 1950, entry into force: 3 September 1953. 43 See e.g., Tyrer v. the United Kingdom, no. 5856/72, Judgment of 25 April 1978, para. 31; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, Judgment of 11 July 2002, para. 75; and Van der Mussele v. ­Belgium, no. 8919/80, Judgment of 23 November 1983, para. 32. 44 CETS No. 035, 18 October 1961, entry into force: 26 February 1965. 45 Additional Protocol of 1988 extending the social and economic rights of the 1961 Charter, 5 May 1988, entry into force: 4 September 1992. CETS No.: 128. 46 Part I, para. 23 and Part II, Art. 23 of European Social Charter (revised) (1996) CETS No. 163, Strasbourg, 3 May 1996, entry into force: 1 July 1999. 47 CETS No. 048, Strasbourg, 16 April 1964, entry into force: 17 March 1968. 48 CETS No. 078, Paris, 14 December 1972, entry into force: 1 March 1977. 49 For the list of non-binding instruments developed in the framework of the Council of Europe, see, the Draft Preliminary Study on the Promotion of the Human Rights and Dignity of the Elderly: Existing Standards and Outstanding Issues of the Steering Committee for Human Rights (CDDH), Strasbourg, 18 January 2012, CDDH(2012)002, pp. 8-9.

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 12 Old-Age Discrimination Finally, it is also worth mentioning that the Committee for the Prevention of Torture, which was set up by the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,50 also came across the situation of older detainees, albeit rather rarely. Inevitably, the main focus of the CPT is not the old-age population, however, during its visits it paid attention to elderly prisoners51 and the homes for elderly persons.52 In the course of these visits, the material conditions, treatment, control procedures, nursing and other care, means of restraint, as well as the arrangements for lodging a complaint were scrutinized by the CPT.53

12.4 Age-Related Issues in the Case Law of the European Court of Human Rights The European Court of Human Rights has been developing a case law, albeit scanty as of yet, which is relevant to older persons. Some of them are directly relevant to the elderly, while other cases are only indirectly related to old age. These cases will be briefly described, grouped in accordance with the relevant Convention article.

12.4.1    Right to Life (Art. 2) In Dodov v. Bulgaria,54 which concerned the disappearance from a nursing home of an aged person (the applicant’s mother) suffering from Alzheimer disease, the Court was called upon, inter alia, to assess certain aspects of institutional care for the elderly, as well as the adequacy of the investigation of the disappearance carried out by the national authorities. With regard to the state’s procedural obligations under Article 2, the Court pointed out that states had a duty to investigate the facts surrounding the case and hold accountable the persons or institutions that breached their duties.55 Here, the Court first examined the complaint relating to the impossibility to hold accountable the nursing home and staff. Clearly, the Court was not called upon to characterize the conditions in the nursing home, thus embarking on an analysis largely outside the ambit of the Convention.56 The Court 50 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CETS No. 126), Strasbourg, 26 November 1987, entry into force: 1 February 1989. 51 See the visits to Turkey in 2004 and to Albania in 2005; CPT/Inf (2005) 18, para. 52; and CPT/Inf (2006) 24, paras 106 and 107, and 119 to 121, respectively. 52 The first visit to such type of institution was carried out during a visit to Germany in 2003. See further, CPT/ Inf (2003) 20 (visit to Germany), and CPT/Inf (2002) 30 (visit to the Netherlands). 53 See also, the visit to Turkey in 2004, CPT/Inf (2005) 18, para. 52, and Albania in 2005, CPT/Inf (2006) 24, paras 106 and 107, and 119 to 121. 54 Dodov v. Bulgaria, ECHR (2008) no. 59548/00, Judgment of 17 January 2008. 55 Para. 97. 56 Paras 84-86.

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Adrienne Komanovics went only as far as to require states “to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients’ lives and to set up an effective independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable”.57 In Dodov, the Court concluded that although domestic law provided for possibilities to seek accountability through criminal, disciplinary and civil proceedings, none of them secured an effective remedy.58 Secondly, the Court had to decide on the complaint relating to the reaction of the police to the victim’s disappearance. The applicant claimed that the police had failed to undertake intensive searches in the area immediately after his mother’s disappearance. Here, the Court was more circumspect in its conclusions. While it acknowledged that more could have been done by the police in the present case, the key question was whether their reaction was adequate in the circumstances. Taking into consideration the wide-ranging duties of police authorities, their relative autonomy in making operational choices and setting out priorities, and, inevitably, the financial restraints, the Court found that the police authorities have satisfied their obligation, or at least, their decision not to deploy forces for an immediate search was not unreasonable.59 As mentioned above, the Court did not pronounce on substantive standards like the conditions prevailing in the nursing home. Although the Court recalled the national prosecutor’s opinion that the duties of the nursing home staff had not been clearly regulated, which made it impossible to determine any criminal liability, nevertheless the Court thought that it was not required to generally investigate the standard of treatment in the nursing home.60 Thus, we are left without any clue as to the substantive duty of the state, i.e. what steps must have been taken in advance by the national authorities to safeguard the lives of those within its jurisdiction.61

12.4.2    Prohibition of Torture (Art. 3) Article 3 of the Convention on the prohibition of torture and inhuman or degrading treatment or punishment, imposes positive duties on states parties to protect vulnerable individuals from ill-treatment or undignified conditions. This clearly includes the protection of older persons from violence, abuse, neglect, ill-treatment, undignified conditions, disproportionate use of force or restraint or denial of essential medication or aids.62 57 58 59 60 61

Para. 80. Paras 97 and 98. Paras 100 and 102. Paras 85-86. On the right to life generally, see E. Wicks, ‘The Meaning of ‘Life’: Dignity and the Right to Life in International Human Rights Treaties’, 12 Human Rights Law Review 2, 2012, pp. 199-219. 62 Further examples include abuse or neglect, denial of essential medication or aids, disproportionate use of force or restraint, grossly inadequate personal care.

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 12 Old-Age Discrimination The applicability of Article 3 was raised in several cases in connection with the detention of elderly persons. In Sawoniuk,63 a case relating to conditions of detention, the application was found inadmissible by the Court. Nevertheless, the Court made a few comments on the detention in prison of persons who reached an advanced age. In this case the applicant was over 78 years of age when he was sentenced to life imprisonment. The Court noted that while matters of appropriate sentencing largely fell outside the scope of the Convention, an arbitrary or disproportionately lengthy sentence might in some circumstances raise issues under the Convention. Thus, a failure to provide the necessary medical care to prisoners may constitute inhuman treatment and there is an obligation on states to adopt measures to safeguard the well-being of persons deprived of their liberty.64 In Enea,65 the applicant (born in 1938) was placed in detention in 1993 (at the age of 55) and sentenced to 30 years of imprisonment for, among other offences, membership of a Mafia-type criminal organisation, drug-trafficking and illegal possession of firearms. The applicant suffered from a number of disorders which obliged him to use a wheelchair. The applicant had, on several occasions, applied to the judge for a stay of execution of his sentence on health grounds, which had been rejected. The European Court of Human Rights was called upon to decide whether the restrictions imposed on the applicant under the special prison regime had attained the minimum level of severity required to fall within the scope of Article 3 of the Convention. This assessment depended “on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.”66 In case of detention, the positive obligations inherent in Article 3 required states to ensure that the execution of detention did not subject the applicant to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that he was provided with the requisite medical assistance.67 The Court also noted that, in principle, the detention of an elderly sick person over a lengthy period may fall within the scope of Article 3. In the circumstances of the case,

63 Sawoniuk v. the United Kingdom, no. 63716/00, decision of 29 May 2001. 64 The applicant was born in 1921 in Domachevo in Belarus, joined the local police force established by the Germans soon after the beginning of the occupation (1941). The applicant left the region in 1944 and a­ rrived in the United Kingdom in about 1946 and has lived there ever since. Pursuant to the British War Crimes Act 1991, he was interviewed by the British police concerning his activities in Domachevo during the German occupation and was alleged to have participated in the massacre of Jewish inhabitants of the ghetto in Domachevo. He was charged with murder, and in April 1999 (at the age of 78) was convicted and sentenced to a mandatory term of life imprisonment. 65 Enea v. Italy (GC), no. 74912/01, Judgment of 17 September 2009. 66 Para. 55, emphasis added. 67 Para. 57.

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Adrienne Komanovics however, the Court found that the national authorities fulfilled their obligation to protect the applicant’s physical well-being.68 Haidn v. Germany,69 another case relating to conditions of detention, concerned an applicant who in 1999, then aged 65, was given a three-and-a-half-year prison sentence which was later converted to preventive detention in prison for an indefinite duration under the 2002 Bavarian Act for the placement of particularly dangerous offenders very liable to reoffend. The applicant complained that he had been old and in a poor state of health at the relevant time and only able to walk with a cane. He had been diagnosed as suffering from an organic personality disorder which led to a continuous decomposition of his personality. He submitted that he had been taken by surprise and shocked by the order of preventive detention for an indefinite duration brought retrospectively against him, and of which he had been notified three days before his scheduled release from prison.70 The applicant also complained that his continued detention in prison for preventive purposes violated, inter alia, Article 3. The Court started with the recapitulation of its findings in Sawoniuk, namely that while appropriate sentencing largely fell outside the scope of the Convention, and advanced age as such was not a bar to detention, but an arbitrary or disproportionately lengthy sentence might in some circumstances raise issues under the Convention. It also added that leaving a detainee in a state of uncertainty for a long time as to his future, notably as to the duration of his imprisonment, or removing from a detainee any prospect of release might also give rise to an issue under Article 3.71 In the particular circumstances of the case, however, the Court considered that the applicant’s relatively advanced, but not particularly old age, combined with his state of health, which could not be considered as critical for detention purposes, were not such as to bring him within the scope of Article 3.72 The Court also took into consideration that the applicant had been entitled to a two-yearly review by the domestic courts of his detention of indefinite duration. Consequently, the minimum level of severity required for inhuman or degrading treatment or punishment had not been attained.73

68 National authorities monitored his state of health carefully, assessing the seriousness of his health problems and providing him with the appropriate medical care. On two occasions he was admitted to a civil hospital to undergo major operations. Paras 59-62. 69 Haidn v. Germany, no. 6587/04, Judgment of 13 January 2011. 70 Para. 101. 71 Para. 107. 72 Para. 108. 73 The applicant also alleged the violation of Art. 5. The Court concluded that the applicant’s preventive detention did not constitute detention “after conviction” for the purposes of Art. 5(1)(a) of the Convention in the absence of a sufficient causal link between the conviction and the detention. Accordingly, Germany violated Art. 5 (deprivation of liberty). Paras 73-97.

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 12 Old-Age Discrimination 12.4.3    Right to Liberty and Security (Art. 5) H.M. v. Switzerland 74 concerned the placement of the applicant, born in 1912, in a nursing home against her will. Previously, she had lived in a house owned by one of her sons, but regular visits by an association carrying out house and sick visits and by the house doctor had stopped due to problems relating to access to the house, heating, washing and meals. Finally, in 1996, the national authorities ordered the applicant’s placement for an unlimited period of time in a nursing home on account of serious neglect. The applicant argued that she could wash and dress herself, that her son could cook for her, and complained that in the nursing home she was no longer free to decide where she lived, to take decisions concerning her everyday life or to go home. The Court, however, disagreed. Firstly, it noted that the applicant had had an opportunity to receive care in her own home, but that she and her son had refused to cooperate.75 Subsequently, her living conditions had deteriorated to such an extent that the authorities decided to take action in the applicant’s own interests, in order to provide her with the necessary medical care and adequate living conditions. Secondly, it found that she was placed in a ward where she had freedom of movement and was able to maintain social contact with the outside world.76 Accordingly, her involuntary placement did not amount to a deprivation of liberty within the meaning of Article 5(1).77 Respectfully, we cannot wholly agree with the judgment. Firstly, even though the applicant may be allowed to move freely within the nursing home and have social contact with the outside world, she can be still regarded as “deprived of her liberty”, similarly to detainees in prison. Secondly, the question remains as to what extent state authorities may be allowed to substitute their judgment with that of the applicant. As Judge Loucaides argued in his dissenting opinion, “the question whether a measure amounts to a deprivation of liberty does not depend on whether it is intended to serve or actually serves the interests of the person concerned.” Not contending that the state measures could be regarded as unjustified under the particular circumstances of the case, such an interpretation could open the door to uncontrolled arbitrariness. The balance to be struck is clearly not an easy one, but states are required to take measures to ensure the autonomy of older people as long as possible.

12.4.4    Right to a Fair Trial (Art. 6) With regard to the requirements of fair trial, the issue of legal capacity as well as the length of the proceedings are of considerable importance to older persons. In Süssmann v. 74 75 76 77

H.M. v. Switzerland, no. 39187/98, Judgment of 26 February 2004. Para. 44. Para. 45. Para. 48.

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Adrienne Komanovics Germany,78 the applicant was dissatisfied with the sum payable to him under the German supplementary pension scheme. The reduction of his pension resulted from the amendments of the German rules governing the Supplementary Pensions Fund, which came into force in 1982 and 1985. In 1988, he filed a constitutional complaint with the Federal Constitutional Court concerning the amendments of the relevant rules. It must be noted that the timing of his complaint was rather unfortunate inasmuch as the Constitutional Court was flooded with appeals stemming from the German reunification, which were given priority over other cases. In November 1991, a panel of three judges of the Federal Constitutional Court refused to accept his complaint for adjudication on the ground that it did not afford it sufficient prospects of success. This decision was served on the applicant in December 1991. Mr Süssmann decided to lodge an application in Strasbourg, complaining that the length of the proceedings in the Federal Constitutional Court exceeded a reasonable time. The Strasbourg Court recalled its well-developed criteria as to the assessment of the length of proceedings.79 Accordingly, the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the complexity of the case, the conduct of the applicant and the relevant authorities, and the importance of what was at stake for the applicant in the litigation.80 In the particular case, the total period of the proceedings lasted three years, four months and three weeks. The Court found that the case was of some (but not extreme) complexity, and the applicant did not cause any delay in the proceedings. The Court also noted that while the contracting states were under a duty to organize their judicial systems in such a way that their courts could meet each of the requirements of Article 6(1), this obligation could not be construed in the same way to a Constitutional Court as for an ordinary court.81 Inevitably, in Süssmann, the Court had to consider various interests. Firstly, while the Court acknowledged that in view of his age, the proceedings were of undeniable importance to the applicant, it found that it did not cause prejudice to him to such an extent as to impose on the court concerned a duty to deal with his case as a matter of very great urgency. Secondly, the other cases before the Constitutional Court were regarded by the Strasbourg Court as more important than that of the applicant and other 23 constitutional appeals raising similar issues which, according to Süssmann, concerned some 600,000 78 Süssmann v. Germany, no. 20024/92, Judgment of 16 September 1998. 79 As a preliminary issue, the Court had to decide whether Art. 6 was applicable to a Constitutional Court. The Government argued that the Federal Constitutional Court was not an ordinary court. According to the Government, its role at national level is comparable to that of the European Court of Human Rights at European level. As the supreme guardian of the Constitution, the task of the Federal Constitutional Court is to ensure that general constitutional law is complied with and not to rule on the “civil rights and obligations” of individuals. The Court however, rejected this argument and pointed out that the Federal Constitutional Court proceedings were directly decisive for a dispute over the applicant’s civil right. Paras 34-46. 80 Para. 48. 81 Paras 55-56.

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 12 Old-Age Discrimination persons.82 Accordingly, the Court found the Constitutional Court to be entitled to give priority to other appeals, stemming from the German reunification. In the words of the Court: 60. . . . these appeals [relating to the reduction of civil servants’ supplementary pensions]were filed at the same time as those brought by former civil servants of the German Democratic Republic to challenge a provision of the Treaty on German Unification terminating the employment contracts of around 300,000 persons . . . Admittedly, as the Commission pointed out, the amendments to the supplementary pensions scheme also concerned a large number of German civil servants. However, bearing in mind the unique political context of German reunification and the serious social implications of the disputes which concerned termination of employment contracts, the Federal Constitutional Court was entitled to decide that it should give priority to those cases. The Court, however, was split over the decision. Several judges submitted a dissenting opinion, advocating for more weight to be given to the criteria relating to what is at stake for the applicant. All six of them, on various bases, argued that the length of the proceedings in the national court exceeded reasonable time. Judge Mifsud Bonnici argued that there were particular circumstances in the case which called for a quicker consideration of the appeal than is usual. Pension rights obviously and of their very nature, require, almost always, urgent consideration. In addition, the Treaty on German Unification was signed on 3 October 1990, that is two years and two months after the applicant filed his appeal and when all the 24 similar appeals were already before the Constitutional Court. Judge ­Jambrek, joined by Judge Pettiti, argued that the shifting of the cases downwards from the top of the list, although in principle legitimate, must nevertheless respect the basic obligation of the Constitutional Court to hear also the case moved further down the list within a reasonable time limit. Furthermore, the Federal Constitutional Court provided no acceptable justification for giving priority to “more urgent cases of considerable political importance”. It is not clear why the cases concerning implications of German reunification are more urgent than the supplementary pensions of large numbers of German civil servants (some 600,000 persons). According to Judge Casadevall, to take into account the argument based on an excessive workload in the Federal Constitutional Court would be inconsistent with the Court’s decision in similar cases. Moreover, in view of Mr Süssmann’s age (80), the case was of undeniable importance for him. In Jablonská v. Poland,83 submitted to the Strasbourg Court in 2000, the applicant was a Slovak national of Polish origin, born in 1921, who sought restitution of, or compensation 82 Para. 52. 83 Jablonská v. Poland, ECHR (2004) no. 60225/00, Judgment of 9 March 2004.

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Adrienne Komanovics for, loss of her property nationalised by the Polish authorities after 1945. She filed an action in 1992, and her case was rejected in May 1997. Then she complained to the Minister of Justice about the excessive length of the proceedings. After several appeals, the appeals were dismissed on 23 October 2002. The applicant claimed that the length of the proceedings in her case had exceeded a reasonable time within the meaning of Article 6(1) of the Convention. The Court started with the recapitulation of its well-settled case law.84 The Court found that the annulment of an ordinary contract for sale of property was not particularly complex, that the delay could not be attributed to the applicant, and even though the proceedings were stayed for about 4 years and 4 months, this could not justify the overall length of the time the relevant authorities needed to hear the case which was merely of average complexity.85 In view of all the relevant circumstances and, more particularly, of the applicant’s old age (she was already 71 years old when the litigation started), the Polish courts should have displayed particular diligence in handling her case. Accordingly, the Court concluded that the “reasonable time” requirement was not satisfied.86

12.4.5    Right to Respect for Private and Family Life (Art. 8) Article 8 on the right to respect for private and family life might also be relevant in certain circumstances. Thus, the right to privacy can be interpreted as to include personal privacy in institutional care, freedom from the violation of family life by separating spouses in residential care, the prohibition of social isolation in such homes or the proscription of the infringement of physical and psychological integrity by poor quality care which does not amount to ill-treatment and thus are not caught by Article 3. In the case of Schwizgebel v. Switzerland,87 the European Court of Human Rights had to deal with the issue of age in relation to a child-adoption dispute. The case concerned the refusal of an adoption application by a single Swiss woman on the ground of her age which was 47 at the time of the application. Adoption by a single parent is possible under Swiss law; nonetheless her application to adopt a second child was refused by the Swiss courts. Albeit the domestic courts did not call into question her child-raising capacities or her financial resources, the applicant’s age (47,5 at the time of her last application) and

84 Accordingly, the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what was at stake for the applicant in the litigation. Para. 31. 85 Paras 34, 38 and 41. 86 Para. 43. 87 Schwizgebel v. Switzerland, ECHR (2010) no. 25762/07, Judgment of 10 June 2010.

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 12 Old-Age Discrimination the age difference in relation to the child played an important role in the dismissal of her application. In her application to the Court, she claimed among other things that she had been discriminated against in comparison with other women of her age, who were able nowadays to give birth to children of their own. She relied in substance on Article 14, taken together with Article 8 of the Convention. Having found that the applicant had been subjected to a difference of treatment, the Court found that Ms Schwizgebel’s age difference with the child to be adopted constituted an objective and reasonable justification for the difference in treatment. In view of the different solutions by the member states of the Council of Europe as regards the age of the adopter or the age difference between the adopter and the child, the Swiss authorities had considerable discretion to decide on such matters. The Swiss rules seemed to be consonant with the solutions adopted by the majority of the member states of the Council of Europe. In those circumstances, the Court found no violation of Article 14 taken together with Article 8.88

12.4.6    Just Satisfaction (Art. 41) Age-related aspects can also play a role when deciding on the extent of just satisfaction. In Georgel and Georgeta Stoicescu v. Romania,89 Mrs Stoicescu was 71 years old when she was attacked, bitten and knocked to the ground by several stray dogs in front of her house in 2000. The attack had had severe consequences for her state of health, which, having regard to her advanced age and lack of financial means to pay for medical care, had caused her serious physical and mental suffering and finally resulted in her being declared as disabled. At the time of the incident the applicant and her husband were retired and their entire monthly income amounted to the equivalent of €80. They claimed that this amount was wholly insufficient for her medical treatment, and that they had to live at subsistence level. Her action for damages was rejected on procedural grounds.90

88 This case also shows the “relativity” of the concept of old age: what may be considered a high age in one case (e.g., 47 in Schwizgebel) might not be so in other circumstances. 89 Georgel and Georgeta Stoicescu v. Romania, ECHR (2011) no. 9718/03, Judgment of 26 July 2011. Since Mrs Georgeta Stoicescu died on 29 December 2007, her husband was allowed to pursue the proceedings as her legal heir. 90 She brought an action in damages against the local mayor’s office. Although a district court found in her favour on the merits, her action was dismissed on appeal on the technical ground that the mayor’s office was not the proper defendant as it was the municipal council which exercised authority over the animal control agency. A subsequent action against the municipal council failed on the grounds that the animal control agency was by then defunct and responsibility for stray dogs had reverted to the mayor’s office. Paras 17 to 19.

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Adrienne Komanovics As a background, it was submitted that since the mid-1990s the national and international media have regularly reported on the large number of stray dogs in Romania and attacks resulting in serious injuries or even death to passers-by. By 2000, the population of stray dogs in the city of Bucharest alone numbered some 200,000. In 2000, some 22,000 persons had required medical care following attacks. The Court had to determine whether the state authorities had failed to comply with their positive obligation under Article 8. The Court recalled that the concept of private life included a person’s physical and psychological integrity and that the states had a positive obligation to prevent breaches of the physical and moral integrity of an individual by other persons when the authorities knew or ought to have known of those breaches.91 It added, however, that the scope of positive obligations varied considerably from case to case, and the obligation to adopt appropriate measures must be interpreted in a way that did not impose an impossible or disproportionate burden on the authorities.92 While the Court agreed with the Government that responsibility for the general situation of stray dogs in Romania also lied with civil society, it was not disputed that the authorities had broad and detailed information on the large number of stray dogs and the danger.93 Having said that, the Court went on to analyse how the national authorities have violated their positive obligations. Firstly, they failed to take sufficient measures to properly implement the existing legislative framework to address the issue of stray dogs. Secondly, the national rules were not capable of providing appropriate redress for the cases of victims of attacks by stray dogs, evidenced by the fact that the authorities had dismissed the applicant’s civil actions for damages and sent her from one institution to another without awarding compensation.94 What is the most relevant for our purposes, however, is the issue of just satisfaction, notably the level of damages awarded. The Government’s contention that a finding of a violation of the Convention would in itself constitute sufficient just satisfaction was rejected by the Court. It held that “in assessing the suffering that the applicant must have experienced regard must also be had to her dire financial situation, her advanced age and deteriorating state of health”.95 Accordingly, when deciding on the issue of just satisfaction, the Court must take into account, inter alia, the age and the state of health of the victim.

91 92 93 94

Para. 49. Para. 51. Para. 56. Para. 61. The Court also held that the Court considers that the applicant did not have an effective right of access to a court. 95 Paras 79-80, emphasis added. Given the relatively low standard of living among older persons as compared with other segments of the population, the criterion of “financial situation” can also be of great importance in assessing the damages.

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 12 Old-Age Discrimination 12.4.7    The Protection of Property (Art. 1 of Protocol No. 1) In Stummer v. Austria,96 the applicant has spent approximately 28 years of his life in prison, working in the prison kitchen and in the prison bakery. Pursuant to the relevant Austrian law, during these years he was not affiliated to the Austrian old-age pension system. Thus, the number of months worked during his years in prison was not counted as insurance months for the purpose of assessing his pension rights. Consequently, Stummer had not accumulated the necessary 240 insurance months for an early retirement pension. He complained that the exemption of those engaged in prison work from affiliation to the old-age pension system was discriminatory. He relied in substance on Article 14, taken in conjunction with Article 1 of Protocol No. 1.97 The national authorities argued that working prisoners were not in an analogous situation to regular employees. In their opinion, there was a fundamental difference between voluntary work on the basis of a regular employment contract and prisoners’ work performed in fulfilment of their statutory obligation to work.98 Secondly, even assuming that the situation of working prisoners was comparable to regular employees, the difference in treatment was justified. Here the argument concentrated on economic considerations: the Government contended that contracting states enjoyed a wide margin of appreciation in the organization of their social security systems. Given the strained financial situation of the social security institutions, only persons who were able to make meaningful contributions could be included in the old-age pension system.99 Thirdly, the national court argued that, in essence, the applicant raised a question of legal or social policy. In this regard, it was not for the courts but for the legislature to decide whether or not to change the provisions relating to the social insurance of prisoners.100 Having found that the relevant Austrian legislation (General Social Security Act) generated a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements,101 the Court went on to decide whether the fact that prisoners

96 Stummer v. Austria (GC), ECHR (2011) no. 37452/02, Judgment of 7 July 2011. The complexity and importance of the case is evidenced by the fact that, in accordance with Art. 30 of the Convention, the Chamber to which the case was assigned relinquished jurisdiction in favour of the Grand Chamber. See para. 4. 97 The applicant also complained that the prison work performed by him clearly amounted to “forced or compulsory labour” within the meaning of Art. 4(2) of the Convention, which was rejected by the Court. Paras 112 to 134. 98 Para. 73: “. . . regarding its nature and aim, prison work differed considerably from regular employment. The former, corresponding to a statutory obligation and reintegration, while the latter was based on an employment contract and served the purpose of securing a person’s subsistence and professional advancement”. 99 Paras 76-77. 100 Para. 14. In a comparative perspective, at the material time, 22 member states of the Council of Europe gave prisoners access to the old-age pension system; while in 12 member states, including Hungary, prisoners were not covered by an old-age pension scheme. Para. 60. 101 Para. 82.

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Adrienne Komanovics were not affiliated to the old-age pension system, violated Article 14 of the C ­ onvention in conjunction with Article 1 of the First Protocol. First, the Court rejected the Government’s arguments and found that the applicant as a working prisoner was in a relevantly similar situation to regular employees.102 Here, however, the Court’s dynamism diminished and found that the difference in treatment pursued a legitimate aim, namely that of preserving the economic efficiency and overall consistency of the old-age pension system by excluding from benefits persons who have not made meaningful contributions.103 When deciding on whether the difference in treatment was proportionate, the Court relied on the existence or non-existence of common ground between the laws of the contracting states.104 The Court found that states had a relatively wide margin of appreciation when deciding on whether or not to affiliate working prisoners to the old-age pension system.105 The Court noted the complexity of the issue, took into consideration the general costs of maintaining prisons, the fact that a prisoner’s entire livelihood, including health and accident insurance, is provided for by the state, and also the fact that the applicant, although not entitled to an old-age pension, was not left without social cover.106 Basing its argument on a comparative analysis, the Court held that it is only gradually that societies are moving towards the affiliation of prisoners to their social security systems and to their old-age pension systems.107 This piecemeal feature seems to be the decisive factor in the Court’s argument: apparently, the lack of a clear consensus among the member states of the Council of Europe in the matter served as an appropriate justification for a wide margin of appreciation for the states. We cannot, however, but agree with the dissenter judges. Despite its sluggish ­nature, there is a clear and evolving trend in the Council of Europe’s member states towards the affiliation of working prisoners to national social security systems. Arguably, this development is gradually reducing the margin of appreciation which states may enjoy in this area.108 While it is reasonable to take economic realities into account, we have an uneasy feeling that the protection of an important human right was subordinated to economic considerations. Nevertheless, a ray of hope was given by the Court by requiring the

102 Paras 91 to 95. 103 Para. 98. 104 Para. 104. 105 Para. 89: “. . . a wide margin of appreciation is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is ‘manifestly without reasonable foundation’. . .”. See also, para. 110. 106 Paras 102, 103 and 108. 107 Para. 106. 108 Para. 5 of the Joint partly dissenting opinion of Judges Tulkens, Kovler, Gyulumyan, Spielmann, Popović, Malinverni and Pardalos.

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 12 Old-Age Discrimination respondent state to keep the issue raised by the present case under review and to take note of changing standards.109 The dissenting judges also drew attention to the issue of elderly prisoners: Nowadays, because of the long-term sentences being imposed in many countries, the presence of an older prison population is a new sociological reality which will necessarily raise the question of old-age pensions for such prisoners at the time of their release.110 12.4.8   Indirect Impact The European Convention on Human Rights can be useful for the protection of the rights of the elderly in an indirect fashion as well. An interesting case concerned the freedom of expression of a so-called whistle-blower,111 whose role is extraordinary important in the protection of the rights of the vulnerable, including the elderly. In Heinisch v. Germany,112 the applicant was employed as a geriatric nurse in a nursing home, a state-owned company. She and her colleagues regularly indicated to the management that they were overburdened owing to a shortage of staff and that services were not being properly documented. In November 2004 the applicant’s legal counsel lodged a criminal complaint alleging aggravated fraud in that her employer had knowingly failed to provide the high quality care announced in its advertisements, had systematically tried to cover up the problems and had urged staff to falsify service reports. In January 2005, however, the public prosecutor’s office discontinued the preliminary investigations it had opened. In the same month, the applicant was dismissed on account of repeated absences through illness.113 The applicant alleged that her dismissal, on the ground that she had brought a criminal complaint against her employer alleging deficiencies in the institutional care provided, and the refusal of the domestic courts in the ensuing proceedings to order her reinstatement had infringed her right to freedom of expression. The Court followed its usual course of analysis: having established that the criminal complaint lodged by the applicant could be regarded as whistle-blowing falling within the scope of Article 10, it went on to find that her dismissal and the related decisions of the 109 Para. 110. 110 Para. 7 the Joint partly dissenting opinion of Judges Tulkens, Kovler, Gyulumyan, Spielmann, Popović, Malinverni and Pardalos. 111 Whistle-blowing means the disclosure of deficiencies in enterprises or institutions (para. 31); while a whistle-blower can be defined as an individual sounding the alarm in order to stop wrongdoings that place fellow human beings at risk (para. 37 of the judgment in Heinisch v. Germany). 112 Heinisch v. Germany, no. 28274/08, Judgment of 21 July 2011. 113 From 19 May 2003 onwards the applicant repeatedly fell ill and was sometimes unable to work. One medical certificate stated that this was the result of overworking.

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Adrienne Komanovics domestic courts had interfered with her right to freedom of expression. That interference was prescribed by law, i.e. it was foreseeable for an employee that a criminal complaint against her employer might lead to the termination of her employment. The applicant’s dismissal pursued the legitimate aim of protecting the reputation and rights of others, namely the business reputation and interests of the applicant’s employer. The key question was therefore whether this interference was proportionate and necessary in a democratic society. Here, the Court applied the criteria laid down in Guja v. Moldova,114 which include the issues of whether in making the disclosure the individual acted in good faith and in the belief that the information was true, whether it was in the public interest to disclose it and that no other, more discreet means of remedying the wrongdoing was available to him or her.115 The Court made a very detailed analysis of these criteria when deciding on the necessity of the restrictions of Ms Heinisch’s freedom of expression. Due to the particular vulnerability of elderly patients and the need to prevent abuse, the Court found the information disclosed as undeniably of public interest.116 It noted that the applicant not only indicated, on numerous occasions to her superiors that she was overburdened, but also alerted the management to a possible criminal complaint.117 The information disclosed by Ms Heinisch was found to be authentic, accurate and reliable, and the applicant’s motives for lodging the criminal complaint, while possibly including the amelioration of her own working conditions, had mainly been the potential threat to the health of the particularly vulnerable patients resulting from the unsatisfactory working conditions in the nursing home.118 While the allegations were certainly prejudicial to the business reputation and commercial interests of the nursing home, the public interest in receiving information about shortcomings in the provision of institutional care for the elderly by a state-owned company was so important in a democratic society that it outweighed the interest in protecting the latter’s business reputation and interests.119 Finally, the applicant had been given the heaviest penalty possible under labour law, which, apart from the direct effect it had on the applicant’s career, had a more general negative impact, notably a serious chilling effect both on other company employees and on nursing-service employees generally, so discouraging reporting in a sphere in which patients were frequently not capable of defending their own rights.120

114 Guja v. Moldova [GC], ECHR (2008) no. 14277/04, 12 February 2008, para. 77. 115 Para. 69. 116 Para. 71. 117 Para. 73. 118 Paras 77 and 82, respectively. 119 Para. 90. 120 Para. 91.

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 12 Old-Age Discrimination The Court sustained that whistle-blowing is particularly important “in the area of care for the elderly, where the patients are frequently not capable of defending their own rights and where members of the nursing staff will be the first to become aware of unsatisfactory conditions in the care provided and are thus best placed to act in the public interest by alerting the employer or the public at large”.121 Thus, quite progressively, the Court found that the applicant’s dismissal without notice from her employment constituted a disproportionate interference with her freedom of expression. Since most member states of the Council of Europe have no comprehensive laws for the protection of whistle-blowers,122 the Judgment in Heinisch (and in Guja) provides a significant complementary protection to whistle-blowers.

12.5 Conclusions From the brief description of the cases above, we can conclude that the European Convention on Human Rights certainly has a potential when it comes to the protection of the rights of the elderly. In this regard, the treatment of older persons in institutionalized or home care (ill-treatment, deprivation of liberty); the guarantees of fair trial and timeliness of any judicial remedy; the prohibition of discrimination (or multiple discrimination); and the need to protect their property (including welfare benefits) might be of particular importance. Nevertheless, it also transpires that existing international instruments, while applicable to older persons, do not offer adequate protection.123 This became clear in Stummer, where the Court accepted that the protection afforded to the applicant could be made, at least partially, dependant on the economic realities of the state. Arguably, unique barriers and specific challenges faced by older persons deserve dedicated attention. Neither the Convention, nor other European treaties actually cover issues like violence and abuse of older persons, compulsory retirement age,124 the integration of the elderly in information society in the light of rapid technological change, bioethical ­issues,125 the right to a dignified death, including the right of access to palliative treatment or the right to be free from negative stereotypes. 121 Ibid. 122 Parliamentary Assembly of the Council of Europe Res. 1729 (2010), 29 April 2010. 123 See e.g., K.L. Tang & J.J. Lee, ‘Global Social Justice for Older People: The Case for an International Convention on the Rights of Older People’, 36 British Journal of Social Work 7, 2006, pp. 1135-1150, or F. Megret, ‘Human Rights of Older Persons: A Growing Challenge’, 11 Human Rights Law Review 1, 2011, pp. 37-66. 124 See e.g., Case C-286/12, Commission v. Hungary, judgment of the Court of Justice of the European Union of 6 November 2012, on a national scheme requiring compulsory retirement of judges, prosecutors and notaries on reaching the age of 62. 125 CDDH, ‘Draft Preliminary Study on the Promotion of the Human Rights and Dignity of the Elderly: Existing Standards and Outstanding Issues’, CDDH (2012)002, Strasbourg, 18 January 2012, paras 28-30.

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Adrienne Komanovics The Advisory Committee of the UN Human Rights Council argued that [j]ust as women, children, and the disabled have been recognized as distinct groups requiring special care and concern under the existing human rights regime, the elderly population must be recognized as a distinct group whose human rights are protected by international law.126 Furthermore, when it comes to the aged population usually more weight is attached to economic and social rights, though arguably civil and political rights are just as important.127 In our view, transition towards demographic maturity necessitates the development of specific standards on the human rights of elderly persons. Currently, notwithstanding the complexity of the problem, low political priority is given to ageing issues, partly because older persons are not usually an organized and visible group that demands attention, partly due to the lack of resources. Hopefully, a specific convention on the elderly would further promote a rights-based approach to ageing policies.

126 Working Paper prepared by Mrs Chinsung Chung, Human Rights Council Advisory Committee, A/HRC/ AC/4/CRP. 1 (4 December 2009), para. 60. 127 Report of the UN Open-ended Working Group on Ageing, first working session (April 2011). A/ AC.278/2011/4, 17 May 2011, p. 8.

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13

Questions of Environmental Protection in the Practice of the European Court of Human Rights

Sándor Szemesi* 13.1 Theoretical Basis of Environmental Protection in the European Convention on Human Rights Although the international community has been taking steps towards achieving the completeness of legislation in the field of international environmental law since 1972 (United Nations Conference on the Human Environment, the so-called Stockholm Conference), most international judicial forums – at least as regards human rights forums – still deal with environmental cases without explicit authorisation.1 The Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: European Convention on Human Rights) and its Protocols do not even refer to the possibility of calling upon the right to environment. This standpoint is not only supported by the grammatical interpretation of the relevant conventions, but also by the fact that in their Recommendation 1614 the Parliamentary Assembly of the Council of Europe emphasizes the necessity that an additional protocol should be attached to the European Convention on Human Rights in accordance with the provisions of the Aarhus Convention, which acknowledges the procedural right of individuals in environmental cases.2 This approach also points out that the Council of Europe (in this case the Parliamentary Assembly and the Committee of Ministers of the Council of Europe) did not really see the possibility of the development of the direct wording of the European Convention on Human Rights with regard to the right to healthy environment, but indirectly, through other classical, first generation rights, that are – thus – objectively enforceable. Undoubtedly, this approach seems to be acceptable not only for reasons of enforceability, but because of the Preamble of the Convention,

*

Associate professor (University of Debrecen, Faculty of Law, Department of European and Public International Law). He received his Ph.D. degree in 2008, his main area of research is the case law of the ­European Court of Human Rights, with special regard to the prohibition of discrimination and the questions of jurisdiction. 1 G. Kecskés, ‘A környezetvédelem és a kapcsolódó környezeti kérdések megjelenése a nemzetközi bírói fórumok gyakorlatában’, Kül-Világ, 2011/1-2, p. 102. 2 Recommendation 1614 (“Environment and human rights”) of 27 June 2003, see para. 10 of the Recommendation.

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Sándor Szemesi which itself primarily sets the target of the enforceability of the basic human rights contained within the European Convention on Human Rights.3 This broad interpretation of the Convention is not contrary to the long-standing concept of the European Court of Human Rights, according to which the text of the Convention must be used as a ‘living instrument’, affording the possibility of the continuous development of the Convention.4 While dealing with the theoretical basis, the doctrine of margin of appreciation should not be left out. The doctrine of margin of appreciation is based on the principle of subsidiarity, which means that member states’ forums have priority in any question, and compared with them the Court of Strasbourg plays a secondary role and acts only if the procedure of national forums is not effective or successful enough.5 The basis of this principle is that in theory national authorities are much more capable of assessing local needs and possibilities than international forums.6 Therefore, the Court does not define itself as a ‘fourthdegree forum’: it examines the practice of national courts, by way of exception, only in the case of obvious infringements, and, as Mark Villiger stated, in these cases it deals only with the procedures, but not with their result.7 Taking into consideration the specialties of the so-called pilot-judgment procedure,8 Villiger’s standpoint cannot be followed by the Court in every single case. In environment-related issues the national authorities have wider margin of appreciation, which means that the authorities have the right to decide what kind of measures can be adequate for reaching their legitimate objective. However, in such cases they are still under the obligation to act in good time, in an appropriate and consistent manner, and these aspects of the national authorities’ decision can be examined by the Court.9 The principle of subsidiarity may be gleaned from Articles 1, 13 and 35 of the Convention. According to Article 1, contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in this Convention. According to Article 13, everyone whose rights and freedoms as set forth in this Convention are violated shall have the right

3 See Preamble of the Convention. See more, San José, Daniel Garcia: Environmental protection and the European Convention on Human Rights, Council of Europe Publishing, 2005, p. 5. 4 The Court recurrently uses the expression, last time on 15 March 2012. See ECHR, Austin and Others v. United Kingdom, Judgment of the Grand Chamber on 15 March 2012 (application Nos. 39692/09, 40713/09 and 41008/09), see para. 53 of the judgment, which mentions several other examples for the use of the concept between 1978 and 2011. 5 D. Shelton, ‘Subsidiarity and Human Rights Law’, 27 Human Rights Law Journal 1-4, 2006, p. 8. 6 L.H. Hill & D. Pannick (eds.), Human Rights Law and Practice, Butterworths, London, 1999, p. 73. 7 M.E. Villiger, ‘The Principle of Subsidiarity in the European Convention on Human Rights’, in: M.G. Kohen (Ed.), Promoting Justice, Human Rights and Conflict Resolution through International Law, Leiden, Martinus Nijhoff Publishers 2007, p. 627. 8 See e.g., M. Fyrnis, ‘Expanding Competences by Judicial Lawmaking: The Pilot Judgment Procedure of the European Court of Human Rights’, 12 German Law Journal, 2011, pp. 1231-1260. 9 Öneryildiz v. Turkey, ECHR (2004) No. 48939/99, Judgment of 30 November 2004, see para. 128 of the judgment.

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  13  Questions of Environmental Protection to an effective remedy before a national authority. And according to Article 35, the Court deals with a case only after all domestic remedies have been exhausted. However, Article 1 requires further interpretation, especially because of the crossborder impacts of environmental protection (more exactly: pollution). This jurisdiction usually coincides with the territory of the member states of the Convention, nevertheless – as the Court established – this statement cannot be considered to be irrebuttable, as it may ­happen that a state is unable to exercise its jurisdiction over the whole of its territory.10 However, it may also happen that the decision of a party to the Convention has an e­ ffect on the territories beyond its borders (on the territory of other states, or territories considered to be res communis omnium usus), or on an individual abroad, in such a way that this jurisdiction may be interpreted under Article 1 of the Convention.11 For the sake of completeness, it should be noted that though it cannot be considered as the exercise of the state’s jurisdiction, the Court stated in various cases, mostly in connection with extradition, that member states of the Convention may be held responsible for their own measures taken, which caused the violation of the Convention outside their territory, in case the said infringement was foreseeable. (Particularly, if they extradite a person who is likely to be tortured or sentenced to death in the requesting country).12 As far as I know, the European Court of Human Rights has not dealt with environmental protection related cases that may have raised extraterritorial questions (in essence: questions related to crossborder pollution). However, I see no reason why the Court should act differently from the principles already established in connection with other cases, if such a case should occur. In the following two cases – L.C.B. v. United Kingdom13 and McGinley and Egan v. United Kingdom14 – the Court was the closest to applying this principle in connection with the effects of nuclear experiments. The central question of the above-mentioned cases was whether, in line with the standpoint of the applicants, the United Kingdom may be held liable for the health damages caused by the explosions related to the nuclear experiments during the 1950s conducted on the Christmas Islands. The Court declared both applications inadmissible for reasons that are ­b eyond the scope of this study.

10 Ilaşcu and Others v. Moldova and Russia, ECHR (2004) No. 48787/99, Judgment of the Grand Chamber on 8 July 2004, see paras 313 and 333 of the judgment. 11 Al-Skeini and Others v. United Kingdom, ECHR (2011) No. 55721/07, Judgment of the Grand Chamber on 7 July 2011, see paras 131-142 of the judgment. 12 See, Umirov v. Russia, ECHR (2012) No. 17455/11, Judgment on 18 September 2012 see para. 92 of the judgment. Firstly: ECHR (1989) No. 14038/88, Soering v. United Kingdom, Judgment on 7 July 1989. 13 L.C.B. v. United Kingdom, ECHR (1998) No. 23413/94, Judgment on 9 June 1998. 14 McGinley and Egan v. United Kingdom, ECHR (1998) Nos. 21825/93 and 23414/94, Judgment on 9 June 1998 (application Nos. 21825/93 and 23414/94).

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Sándor Szemesi 13.2 International Environment-Related Documents in the Case law of the Court It can be stated that even in its international environmental-related judgments the ­European Court of Human Rights occasionally refers to other (binding and non-binding) international documents. In this chapter I will try to illustrate in a table which international environment-related documents the European Court of Human Rights referred to in its previous case law.15 Table 13.1 The referred document

Name of the case

Context

Aarhus Convention

Taskin and Others v. Turkey (10 November 2004), Application No. 46117/99.

Para. 99. (“Relevant international texts on the right to a healthy environment”)

 

Demir and Baykara v. Turkey (12 November 2008) the Judgment of the Grand ­Chamber, Application No. 34503/97.

Para. 83. (“In the Taşkın and O ­ thers v. Turkey case, the Court built on its case law concerning Art. 8 of the Convention in matters of environmental protection (an aspect regarded as forming part of the individual’s private life) largely on the basis of principles enshrined in the Aarhus Convention on Access to Information, Public Participation in Decision-making and ­Access to Justice in Environmental Matters (ECE/CEP/43) (see, Taşkın and Others v. Turkey, no. 49517/99, §§ 99 and 119, 4 December 2003). Turkey had not signed the Aarhus Convention.”)

 

Tatar v. Romania (27 January 2009), Application No. 67021/01.

B. Le droit et la pratique internationaux pertinents para ‘c’ Para. 118. (“Au niveau international, la Cour rappelle que l’accès à l’information, la participation du public au processus décisionnel et l’accès à la justice en matière d’environnement sont consacrés par la Convention d’Aarhus du 25 juin 1998, ratifiée par la R ­ oumanie le 22 mai 2000 (voir p. 23, c).”)

15 Based on Manual on Human Rights and the Environment, Council of Europe Publishing, 2012, pp. 151-158.

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  13  Questions of Environmental Protection The referred document

Name of the case

Context

 

Grimkovskaya v. Ukraine (21 July 2011), Application No. 38182/03.

Para. 39. (“relevant international materials”)Para. 69. (“It also notes that as of 30 October 2001 the ­Aarhus Convention, which concerns access to information, participation of the public in decision-making and access to justice in environmental matters has entered into force in respect of Ukraine”)Para. 72. ­(“Bearing those two factors and the Aarhus Convention (see, para. 39) in mind, the Court cannot conclude that a fair balance was struck in the present case.”)

United Nations ­Convention on the Law of the Sea

Mangouras v. Spain ­ (28 September 2010) the ­Judgment of the Grand ­Chamber, Application No. 12050/04.

Paras. 44-45. (“C. Vessels and crews in international law”)

Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment (ETS. No. 150.)

Öneryildiz v. Turkey (30 November 2004) the ­Judgent of the Grand ­Chamber, Application No. 48939/99.

Paras. 59-60. (“Relevant instruments of the Council of Europe”)

Convention on the ­Protection of the Environment through Criminal Law (ETS. No. 172.)

Öneryildiz v. Turkey (30 November 2004) the ­Judgment of the Grand ­Chamber, Application No. 48939/99.

Paras. 59. and 61. (“Relevant instruments of the Council of Europe”)

International Convention on Civil Liability for Oil Pollution Damage

Mangouras v. Spain (28 September 2010) the ­Judgment of the Grand ­Chamber, Application No. 12050/04.

Paras. 54. and 60. (“Civil liability and compensation for oil pollution damage”) – on the part of interverners Para 75. as well

International Convention for the ­Prevention of Pollution from Ships

Mangouras v. Spain (28 September 2010) the ­Judgment of the Grand ­Chamber, Application No. 12050/04.

Para. 53. (“International Convention for the Prevention of Pollution from Ships of 2 November 1973 and the Protocol thereto adopted on 17 February 1978 (“MARPOL 73/78”)”) – on the part of interverners para 74. as well (continued)

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Sándor Szemesi Table 13.1 

Continued

The referred document

Name of the case

Context

Stockholm Declaration (1972)

Tatar v. Romania ­ (27 January 2009), Application No. 67021/01.

B. (“Le droit et la pratique internationaux pertinents”) Para. ‘a’ Para. 111. (“Concernant ce dernier aspect, la Cour rappelle, dans l’esprit des principes no. 21 de la Déclaration de Stockholm et no. 14 de la Déclaration de Rio, le devoir général des autorités de décourager et prévenir les transferts dans d’autres États de substances qui provoquent une grave détérioration de l’environnement”)

Rio Declaration (1992)

Tatar v. Romania (27 January 2009), Application No. 67021/01.

B. (“Le droit et la pratique internationaux pertinents”) Para. ‘b’ Para. 111. (“Concernant ce dernier aspect, la Cour rappelle, dans l’esprit des principes no. 21 de la Déclaration de Stockholm et no. 14 de la Déclaration de Rio, le devoir général des autorités de décourager et prévenir les transferts dans d’autres États de substances qui provoquent une grave détérioration de l’environnement”)

 

Okyay and Others v. Turkey (12 July 2005), Application No. 36220/97.

Para. 51. (“Relevant international texts on the right to a healthy environment”)

 

Taskin and Others v. Turkey (10 November 2004), ­Application No. 46117/99.

Para. 98. (“Relevant international texts on the right to a healthy environment”)

Precautionary Principle

Tatar v. Romania ­ (27 January 2009), Application No. 67021/01.

Para. 120. (“En ce sens, la Cour ­rappelle l’importance du principe de précaution (consacré pour la première fois par la Déclaration de Rio)”)

Judicial practice of the International Court of J­ ustice of Hague ­(Gabcikovo-Nagymaros Project Case)

Tatar v. Romania (27 January 2009), Application No. 67021/01.

B. (“Le droit et la pratique ­internationaux pertinents”) Para. ‘d’

Practice of the International Tribunal for the Law of the Sea

Mangouras v. Spain (28 September 2010) the Judgment of the Grand Chamber, ­Application No. 12050/04.

Para. 46. (“Case law of the ­ International Tribunal for the Law of the Sea”)

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  13  Questions of Environmental Protection The referred document

Name of the case

Context

“international instruments”

Kyrtatos v. Greece (22 May 2003), Application No. 41666/98.

Para. 52. (“Neither Art. 8 nor any of the other Articles of the Convention are specifically designed to provide general protection of the environment as such; to that effect, other international instruments and domestic legislation are more pertinent in dealing with this particular aspect.”)

“European standards”

Öneryildiz v. Turkey (30 November 2004) the Judgment of the Grand Chamber, Application No. 48939/99.

Para. 60. (“It can be seen from these documents that primary responsibility for the treatment of household waste rests with local authorities, which the governments are obliged to provide with financial and technical assistance. The operation by the public authorities of a site for the permanent deposit of waste is described as a “dangerous activity”, and “loss of life” resulting from the deposit of waste at such a site is considered to be “damage” incurring the liability of the public authorities (see, inter alia, the Lugano Convention, Art. 2 §§ 1 (c)-(d) and 7 (a)-(b)).”) and referring back to this as a European standard in para. 71.

“international environmental standards”

Borysiewicz v. Poland (1 July 2008), Application No. 71146/01.

Para. 53. (“However, the Court notes that the applicant has not submitted the results of those tests to the Court. Nor has she submitted, either in the domestic proceedings or in the proceedings before the Court, any alternative noise tests which would have allowed the noise levels in her house to be ascertained, and for it to be determined whether they exceeded the norms set either by domestic law or by applicable international environmental standards, or exceeded the environmental hazards inherent in life in every modern town”)

“European and international law”

Mangouras v. Spain (28 September 2010) the Judgment of the Grand Chamber, Application No. 12050/04.

Para. 86. (“A tendency can also be observed to use criminal law as a means of enforcing the environmental obligations imposed by European and international law.”)

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(continued)

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Sándor Szemesi Table 13.1 

Continued

The referred document

Name of the case

Context

Recommendation R(96) 12 of the Committee of Ministers of the Council of Europe

Öneryildiz v. Turkey (30 November 2004) the Judgment of the Grand Chamber, ­Application No. 48939/99.

Para. 59. (“Relevant instruments of the Council of Europe”)

Recommendation R(97) 9 of the Committee of Ministers of the Council of Europe

Brosset-Triboulet and Others v. France (29 March 2010) the Judgment of the Grand Chamber, Application No. 34078/02.

Para. 55. (“Council of Europe texts”)

 

Depalle v. France (29 March 2010) the ­Judgment of the Grand Chamber, Application No. 34044/02.

Para. 54. (“Council of Europe texts”)

Recommendation 1614 of the Parliamentary ­Assembly of the Council of Europe (2003)

Grimkovskaya v. Ukraine (21 July 2011), Application No. 38182/03.

Para. 40. (“relevant international materials”)

 

Okyay and Others v. Turkey (12 July 2005), ­Application No. 36220/97.

Para. 52. (“Relevant international texts on the right to a healthy environment”)

 

Taskin and Others v. Turkey (10 November 2004), Application No. 46117/99.

Para. 100. (“Relevant international texts on the right to a healthy environment”)

Recommendation 1087 of the Parliamentary ­Assembly of the Council of Europe (1996)

Guerra and Others v. Italy (19 February 1998), ­Application No. 14967/89.

Para. 34. (“Work by the Council of Europe”) – “public access to clear and full information must be viewed as a basic human right”.

 

Öneryildiz v. Turkey (30 November 2004) the Judgment of the Grand Chamber, Application No. 48939/99.

Para. 59. (“Relevant instruments of the Council of Europe”)

Recommendation 1225 of the Parliamentary ­Assembly of the Council of Europe (1993)

Öneryildiz v. Turkey (30 November 2004) the Judgment of the Grand Chamber, Application No. 48939/99.

Para. 59. (“Relevant instruments of the Council of Europe”)

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  13  Questions of Environmental Protection The referred document

Name of the case

Context

Recommendation 1430 of the Parliamentary ­Assembly of the Council of Europe (2005)

Tatar v. Romania (27 January 2009), Application No. 67021/01.

B. (“Le droit et la pratique internationaux pertinents”) Para. ‘e’

Recommendation 587 of the Parliamentary ­Assembly of the Council of Europe (21975)

Öneryildiz v. Turkey (30 November 2004) the Judgment of the Grand Chamber, Application No. 48939/99.

Para. 59. (“Relevant instruments of the Council of Europe”)

While analysing this table, we may make two obvious statements. On the one hand, compared with the volume of the case law of the European Court of Human Rights, there is not a large number of international environment-related references, and even these few references are mostly related to two or three important cases, while in the others the European Court of Human Rights did not consider it necessary to specifically call upon the rules of international environmental law. In my opinion, this is a result of the fact that it was considered obvious (partly because of the previous case law and the already mentioned “classical” cases, and partly because of the already mentioned concept of the ‘living instrument’), that the relevant provisions of international environmental law may be integrated somehow within the rights protected by the European Convention on Human Rights. It is also interesting to note that most of these references are merely mentioned, while there is only a small number of cases in which the Court appears to use any of these documents in its arguments. In my point of view, this is because the Court considered that in the previously mentioned cases the protection was gleaned from the spirit of the Convention, thus, the related international documents appeared in the judgment only as a reinforcement of the general argument. On the other hand, it is also important to emphasize that only one international convention may be found in this compilation that has been called upon independently several times by the Court – the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters in 1992.

13.3 The Appearance of Environmental Cases in the Practice of the European Court of Human Rights As I already mentioned, in the first years of its operation, the European Court of Human Rights (and its Committee that existed at that time) consistently declared those applications 249

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Sándor Szemesi inadmissible ratione materiae, which tried to call upon environmental ­aspects of a submitted case. For example, this happened to those applicants who objected to a marsh being used for military purposes in a nature reserve close to their home. According to their point of view, the question of the violation of the following rights may also be established: the right to life (Art. 2), the prohibition of torture or inhuman, degrading treatment or punishment (Art. 3), and the right to liberty and security of the person (Art. 5). In this particular case in its extremely short statement of reasons the European Court of Human Rights only referred to the fact that the obligation of the conservation of nature does not pertain to the rights guaranteed under the European Convention on Human Rights.16 However, this approach started to change a few years later: for example in 1980 the Committee declared admissible a complaint in which the applicant stated that the opening of an airport (London Gatwick) and a highway close to his home may violate his right to respect for private and family life (Art. 8) and his right to property (Art. 1 of Protocol 1). However, in this particular case no substantive examination took place, because after the admissibility decision the government and the applicant concluded a friendly settlement, thus the case was struck out of the list without judgment.17 Therefore, we may say that even the Committee accepted that the unfavourable e­ nvironmental impacts may violate the exercise of the rights declared in the European Convention on Human Rights, thus relying upon the protection of the environment through individual rights incorporated into the Convention and its Protocols was made possible. For the sake of completeness, it should be mentioned that there was another case in which the Commission declared that the applicants cannot be regarded as victims of a nuclear tests, because they were unable to demonstrate that the potential consequences of the tests directly affected their personal situation (inadmissible ratione personae).18 In this context, there were more and more cases in which the question was whether it was possible to provide appropriate environmental conditions – by invoking public ­interest – based on Paragraph 2 of Articles 8-11 and Article 1 of Protocol 1.19 By ­establishing the admissibility of such cases, the Committee created an indirect route for environmental protection. Therefore, it became possible that state measures be declared lawful by ­referring to environmental protection as public interest, even if the measure in question violated the applicants’ rights (typically the right to respect for his private and family life or the right to property) guaranteed by the Convention. Although it should be noted that Daniel Garcia San José interprets this previous approach not as the collective enforceability

16 X and Y. v. Federal Republic of Germany, ECHR (1976) No. 7407/76, decision on admissibility on 13 May 1976. 17 Arrondelle v. United Kingdom, ECHR, decision on admissibility on 15 July 1980 (Appl. No. 7889/77). 18 Tauira and 18 others v. France, ECommHR, decision on admissibility on 4 December 1995 (Appl. No. 28204/95). 19 Hakansson and Sturesson v. Sweden, ECHR, decision on admissibility on 15 July 1987 (Appl. No. 11855/85).

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  13  Questions of Environmental Protection of environmental rights, but as the possibility of each and every party to practise their margin of appreciation. He argues that member states were granted the o ­ pportunity to ­include certain branches of environmental matters into the branch of public administration that may reasonably restrict some basic human rights.20 In my opinion this approach is just the other side of the same question: it is a clear fact that member states have an extremely wide margin of appreciation regarding which provisions shall be taken under the definition of public administration (especially during the first years of international environmental protection). Nevertheless it is also undisputable that in this regard a European consensus has been gradually established, thus the protection of the environment as a reference to public interest quickly became accepted among the member states of the Council of Europe. The first judgment of the European Court of Human Rights that dealt with environmental questions directly was adopted as late as 1990.21 The applicants were Richard John Powell and Michael Anthony Rayner, who both lived close to Heathrow airport, but the traffic of the airport affected them differently, because Powell’s residence was in a low, while Rayner’s farm was in a high noise level area, which was also loaded by night flights. The Court stated that the British authorities shall consider both of the conflicting interests of the individuals and the community as a whole – and during this consideration the state has the margin of appreciation in deciding which interest may be preferred in accordance with the provisions of the Convention.22 In this regard, the British government accepted several provisions restricting noise levels (including the restriction of night flights, measurement of noise level, or offering to purchase estates located closest to the airport),23 therefore, the British government did not violate Article 8 (declaring the right to respect for private and family life) of the Convention. It is interesting that the Court declared that a large international airport shall be regarded as constituting an extremely important public interest by maintaining the economic development of a state even if it is close to densely populated areas.24 Furthermore, we can draw a parallel between this judgment and the López Ostra case,25 because evaluating the two cases together clearly demonstrates the different aspects of the use of margin of appreciation. According to the relevant facts of the case, there were several leather factories in the city of Lorca, and their waste was neutralized by one power plant (located 20 metres from the residence of the applicant). When a malfunction took place in the power plant, the smell of carrion spread over the city of Lorca and several 20 D.G. San José, Environmental protection and the European Convention on Human Rights, Council of Europe Publishing, 2005, p. 9. 21 Powell and Rayner v. United Kingdom, ECHR (1990) No. 9310/81, Judgment on 21 February 1990. 22 See para. 41 of the judgment. 23 See para. 43 of the judgment. 24 See para. 42 of the judgment. 25 López Ostra v. Spain, ECHR (1994) No. 16798/90, Judgment on 9 December 1994.

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Sándor Szemesi gases were discharged into the air causing health problems to the inhabitants. Based on several complaints and the report of the local environmental and health authority, the city council withdrew the licence of operation of the power plant, but did not order its closure. According to the standpoint of the applicant, besides the violation of the right to respect for private and family life (Art. 8), inhuman treatment prohibited by Article 3 also took place. In this case the Court found that Article 8 had been violated, but stated that no violation of Article 3 occurred; despite the fact that the applicant and his family lived under extremely bad conditions.. As far as I know, the Court has never declared any form of environmental pollution to be torture or inhuman or degrading treatment or punishment. Comparing the two cases, it is clear that in both cases we can generally talk about the violation of the right to private and family life (in connection with noise pollution, and the unbearable smell) on the one hand, and on the other hand we can find public interest, based on which the right of the applicant may be impaired (the economic development of the state and the city of Lorca). In the case of Powell and Rayner, the British authorities did everything to reduce negative impacts, thus the Court found that they acted lawfully using their margin of appreciation, however, in the López Ostra case the Spanish authorities did not deal with the arising interests, obviously failed to consider the two conflicting interests, thereby breaching their obligation concerning the margin of appreciation.

13.4 Connections between the Right to Life (Art. 2) and Environmental Protection According to the right to life declared in Article 2 of the European Convention on Human Rights (according to the case law of the Court), states are obliged to take positive measures to protect the life of people living under their jurisdiction. In this respect, the most cited environment-related case is the Öneryildiz case.26 According to its facts, there was a methane explosion in a landfill in Turkey, close to which several people lived (­ although without permission). Because of the explosion, 93 people died (including three relatives of the applicant). The applicant claimed that the local Turkish authorities did not do anything to prevent the explosion despite a report made by an expert two years before, which previously called the attention of the city council to the risk of an accident. Having r­ egard those mentioned above, the Court found that the authorities knew (or should have known) about the inhabitants nearby being in danger and should have avoided the emergency situation according to their obligation to act, which stems from Article 2 of the Convention.27

26 Öneryildiz v. Turkey, ECHR (2004) No. 48939/99, Judgment of the Grand Chamber on 30 November 2004. 27 See e.g., paras 71 and 73 of the judgment.

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  13  Questions of Environmental Protection This positive obligation to act on the part of the state also exists in times of natural ­disasters according to the conclusions of the Budayeva and Others case.28 In this case, on 18 June 2000, following heavy rainfalls mud flooded a Russian town, and the applicants stated that the authorities did not call their attention previously to the danger, moreover, they did not receive help to escape. On the next day, after the applicants returned to their houses, another, bigger mud avalanche arrived, which took further lives (the house of the applicant collapsed and her husband died). The Court found an obvious casual link between the omission of the authorities and the several deaths that occurred, thus, the applicants referred to the violation of the right to life (Art. 2) with success. Therefore, it may be established that the positive obligation to act in connection to the right to life does not only exist in connection with actions caused by humans, but also disasters, where there is an obligation on the side of the states to set up an appropriate warning and protection mechanism.29 In my opinion, the two cases may be considered different in that states have a broader level of margin of appreciation in the case of measures necessary in order to prevent and abolish (natural) disasters caused by acts of God, than in the case of disasters caused indirectly by human actions or omission. Moreover, it is important to mention that, though the Court considers that there is an obvious positive obligation of state authorities to guarantee the right to life, this positive obligation shall not be interpreted as an obligation for the state authorities to collect and spread environmental information based on Article 10 (freedom of expression) of the Convention. In Guerra and Others case30 the applicants stated that the authorities failed to inform the inhabitants about the dangers of a nearby plant and about an accident that took place there and the procedure that followed it. With this, the applicants contended that the state violated the right to information declared under Article 10 of the Convention, however, the Court stated that providing such an obligation may cause extraordinary difficulties, because it is difficult to define who should be informed by whom and about what.31

13.5 The Relation between the Right to Private and Family Life and the Right to Property and Environmental Protection The European Court of Human Rights declared in several cases that various environmentally harmful activities may violate the right to respect for private and family life of the applicant. In the Court’s opinion, violation of private life and private house does not only 28 Budayeva and Others v. Russia, ECHR (2008) Nos. 5339/02, 21166/02, 20058/02, 11673/02 and 15343/02, Judgment on 20 March 2008. 29 See para. 135 of the judgment. 30 Guerra and Others v. Italy, ECHR (1998) No. 14967/89, Judgment of the Grand Chamber on 19 February 1998. 31 See para. 53 of the judgment.

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Sándor Szemesi mean house-trespass but the undisturbed enjoyment of the neighbourhood as far as it is possible. It follows that the violation of the right to private and family life may not only be committed by physically entering a house, but by noise pollution, emission of various gases and smells, or other, similar ways. As it was established by the Court, the right to clean and silent environment cannot be found in the Convention, but if noise pollution or other harmful activity directly and seriously infringes the applicants rights, the matter shall come within the scope of Article 8 of the Convention.32 Thus, the Court shall ­examine both the direct causal link between the activity in question and the negative effect on the applicant, and whether this negative impact reaches a certain level which can be considered a violation. This latter level depends on the circumstances of the case, such as the intensity and period of time of the negative effect, including its physical and mental ­effects.33 As I already mentioned (when comparing the Powell and Rayner case and the López Ostra case), the Court shall consider the behavior of the state’s authorities while exercising their margin of appreciation. From the related abundant case law, I am going to present the Deés case34 in detail because of its direct link to Hungary. The applicant complained that he suffered serious detriment due to the increase of heavy traffic in the area of his home, furthermore, his house ­almost became uninhabitable because of the noise, pollution and smell caused by the heavy ­traffic.35 The Court of Strasbourg clearly declared that the measures of Hungarian authorities to decrease traffic were not effective enough (the applicant submitted a claim for compensation in 1999, and in 2003 the noise pollution was still above the limit), and declared the violation of Article 8.36 Although the right to property was not part of the European Convention on Human Rights originally (only Art. 1 of Protocol 1 incorporated it into the Convention), in my point of view the restriction of the right to property according to environmental viewpoints is similar to the possible restrictions of the right to private and family life, thus I think it is appropriate to discuss them together. Protocol 1 of the Convention explicitly allows the restriction of property (or even the deprivation of property), in the public interest and in accordance with the conditions provided by the law and with the general principles of international law. From the perspective of this study, the examination of the expression of ‘in the public interest’ is necessary. As I already mentioned, now the Court of Strasbourg 32 Leon and Agnieszka Kania v. Poland, ECHR (2009) No. 12605/03, Judgment on 21 July 2009, see para. 98 of the judgment. 33 Fadeyeva v. Russia, ECHR (2005) No. 55723/00, Judgment on 9 June 2005, see para. 69 of the judgment. 34 Deés v. Hungary, ECHR (2010) No. 2345/06, Judgment on 9 November 2010. 35 The applicant called upon Art. 6 of the Convention because of the length of the legal procedure before the competent Hungarian authorities, however this aspect of the case is irrelevant in the light of the present study. 36 See e.g., G. Kecskés, ‘Deés v. Magyarország ügy az Emberi Jogok Európai Bírósága előtt’, Jogi iránytű, 2011/1, p. 1-2. or L. Fodor, ‘Az Emberi Jogok Európai Bíróságának ítélete a zajterhelés csökkentésére tett intézkedésekről és a bírósági eljárás időtartamáról’, Jogesetek Magyarázata, No. 2011/3, pp. 86-92.

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  13  Questions of Environmental Protection lists the enforcement of environmental aspects in the category of public interest. As in the Hamer case37 the parents of the applicant built a summer house on woodland without a building permit in 1967. Many years later, in 1994, the authorities ordered the restoration of the initial situation, and subsequently they destroyed the house (the applicants were not willing to do it). The Court firstly recorded that though the environmental aspect is not listed explicitly in the Convention, it is nevertheless considered by the society and the authorities to be of value. Economic reasons (including questions of property) shall not precede environmental aspects, thus in the actual case – though the applicant’s right to property was undoubtedly restricted, this was clearly justified by public interest. Furthermore, in environmental cases state authorities have a wide margin of appreciation when taking the necessary measures.38 This means that the competent government (and not the Court) has the possibility to take into consideration the protection of the environment as well as other important factors such as financial and economic considerations.39

13.6  Environmental Aspects in Procedural Law As I already referred to it in the case of Guerra and Others, though environmental aspects cannot be interpreted by the Court as widely as an obligation for state authorities to give specific information, but the obligation of assuring the right of participation of the people concerned (and of providing the necessary information about the exercise of the right of participation) while decision-making in environmental matters is different. In the Hatton and Others case40 on the noise pollution of airports (Heathrow Airport in London) the Court explicitly examined for example whether state authorities assured the right of participation to nearby inhabitants according to the new flight regulations accepted in 1993. As the Court found that adequate, it did not find a violation of the right to private and family life. Although Article 8 of the Convention does not include explicit (or implicit) procedural regulations for cases when authorities do not provide in advance information to the people concerned about the potential polluting activity and risks of a working plant, failing to do so may violate the right to private and family life as well.41 On the other hand, even this approach itself shall not lead to the Court examining actio popularis type applications.42 Nevertheless, if the possibility of effective participation (and the judicial review 37 Hamer v. Belgium, ECHR (2007) No. 21861/03, Judgment on 27 November 2007. 38 See paras 78-79 of the judgment. 39 Fredin v. Sweden, ECHR (1991) No. 12033/86, Judgment on 18 February 1991, judge Vilhjalmsson’s concurring opinion. 40 Hatton and Others v. United Kingdom, ECHR (2003) No. 36022/97, Judgment of the Grand Chamber on 8 July 2003. 41 Tatar v. Romania, ECHR (2009) No. 67021/01, Judgment on 27 January 2009, see para. 112. of the judgment. 42 Ilhan v. Turkey, ECHR (2000) No. 22277/93, Judgment on 27 June 2000, see paras 52-53 of the judgment.

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Sándor Szemesi of the possible decisions) are not guaranteed for the participants during a national procedure, this may amount to a violation of the right to a hearing by a judicial body included in the right to fair trial guaranteed under Article 6 of the Convention.43 The question of environmental protection was raised from a criminal procedural a­ pproach in front of the Court’s Grand Chamber in 2010, in connection with the Mangouras case,44 which may also be an example for how the concept of the ‘living instrument’ mentioned previously shall be applied. The applicant was the captain of a ship which caused an ­extremely serious environmental pollution by leaking 70,000 tons of oil into the Atlantic Ocean. A criminal procedure was initiated against the captain of the ship and he was in pre-trial detention for 83 days, until the owner of the ship posted the extremely high bail, 3 million euros. The European Court of Human Rights stated that the use of the instruments of criminal law in connection with environmental pollution crimes is a new tendency nowadays, and regarding the exceptional nature of the matter and the extremely serious pollution caused, the amount of the bail shall not be considered unrealistic, thus the violation of the right to liberty and security enshrined in Article 5 paragraph 3 of the Convention did not occur. It may be submitted that a few years earlier in a similar case the Court of Strasbourg would most likely have declared the violation of the Convention. This change evidences the increasing appreciation of environmental assets under international law (and human rights) as well.

13.7 Summary One of the important characteristics of the case law of the European Court of Human Rights is to handle the Convention as a ‘living instrument’. Taking into consideration that (international) environmental questions appeared on the international stage not more than 20 years after the adoption of the Convention in 1950, even nowadays the improvement of the environment-related case law of the Court of Strasbourg is only feasible with the application this concept. The moderate progress that characterises the activity of the Court (and the previously existing European Commission of Human Rights) can be well documented in the environment-related cases: while such applications were rejected ­ratione materiae without examination for a long period of time, nowadays the Court deals with these cases from three different aspects – in spite of the fact that its underlying document has not changed in this respect. Firstly, the Court ‘actively’ examines the environment-related cases in light of the right to life – including both disasters caused by humans as well as those occurring as a consequence

43 L’Erabliere A.S.B.L. v. Belgium, ECHR (2009) No. 49230/07, Judgment on 24 February 2009. 44 Mangouras v. Spain, ECHR (2010) No. 12050/04, Judgment of the Grand Chamber on 28 September 2010.

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  13  Questions of Environmental Protection of natural disasters. Secondly, it is the right of the Court to ‘passively’ examine measures in accordance with the legality of state authorities’ activities, as a possible restriction of each right provided by the Convention (firstly the right to private and family life and the right to property). Thirdly, procedural issues are getting an increasingly higher role in the case law of the Court – including the issues of the right to fair trial (Art. 6) and the right to an effective remedy (Art. 13). Furthermore, by now some procedural aspects of criminal liability fall under the competence of the Court, but in my opinion, their classification into a separate category is not justified because of the small amount of related cases at present. It is interesting to mention that with respect to the freedom of expression (Art. 10) the Court does not really have a case law that may be assessed, although we may feel that guaranteeing information rights is particularly relevant in procedural terms; which is why I think that in this respect we cannot exclude the possibility of a change in the practice of the Court in the near future.

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14

The Case of Franz Joseph and Lajos Kossuth before the English Court of Chancery

Legal Battle over the Ruins of a Repressed Revolution with Its Still Topical International Law Consequences Marcel Szabó* On the 160th anniversary of the tragic repression of the Hungarian national revolution of 1848/49 and in recognition of the great politician and lawyer Lajos Kossuth, it is only proper to commemorate the case between Kossuth and the Austrian Emperor Franz ­Joseph which took place in England in the latter half of the 19th century. The case, which has come to be known as the Emperor of Austria v. Day and Kossuth1 case, has occupied the interest of international lawyers for one and a half centuries and, even today, opinions vary as to whether or not the court delivered the right judgment.

14.1  Historical Antecedents The case itself was extraordinarily well known in its time not only in Britain but also in the United States of America. When John Westlake (the renowned Cambridge professor of law) died, the American Journal of International Law published an obituary stressing that nothing evidenced more the prominence of the late professor than the fact that he had been retained in this momentous case.2 The Permanent Court of International Justice referred to it in the Lotus case.3 When the Emperor of Austria case was omitted from an American textbook published in 1937 and compiled for a semester course in international * Chair, European Law Department of the Faculty of Law and Political Sciences of Péter Pázmány Catholic University (Budapest), Deputy-Commissioner for Fundamental Rights, responsible for the protection of the interests of future generations, Hungary. Former Visiting Fellow at the Lauterpach Research Centre for International Law (Cambridge) as well as the Centre for European Legal Studies (Cambridge). 1 1861, De Gex, F. & J. 217, EngR 688. 2 7 American Journal of International Law, 1913, p. 583, indeed, even half a century later Johnson mentions the role Westlake played in the Emperor of Austria case in his article on the English traditions in international law. D.H.N. Johnson, ‘The English Tradition in International Law’, 11 The International and Comparative Law Quarterly 2, 1962, pp. 416-445, at p. 441. 3 The case of the S. S. “Lotus”, France v. Turkey, in: Publications of the Permanent Court of International Justice, Series A – No. 10 Collection of Judgments, A.W. Sijthoff ’s Publishing Company, Leyden, 1927, p. 65.

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Marcel Szabó law, the American Journal of International Law found it necessary to reprimand the author in an editorial note. In 1965, more than a century after the judgment of the court was passed, the most important British cases concerning international law were collected in the composite volume entitled British International Law Cases, and it imputed a distinguished relevance to the case in question.4 It is also referenced by the public international law textbooks of the 21st century, for example John O’Brien’s monograph, International Law, published in 2001.5 Before exploring the international law implications of the case, it is necessary to examine the causes and outcomes of the proceedings that took place before the Court of Chancery. At the end of the 1850s, Kossuth was aggrieved to acknowledge that the revolutionary mindset in Hungary had been replaced by apathy. He may have found that public opinion could only be stirred by paying more attention to the ‘human condition’. Thus he secretly made preparations for the printing of Kossuth banknotes to the total value of one ­hundred million Forints at the English printing house, Day and Sons. He was probably driven by the assumption that the hope of cashing the Kossuth notes, tucked away in the family chest, would spur on revolutionary action in the midst of lethargic Hungarian public opinion. The funds necessary for the printing were secured by Cavour, the Prime Minister of Piedmont-Sardinia, through clandestine channels6 and the banknotes were mainly printed in 1 and 2 Forint denominations. By February 1860, the bulk of the printing tasks had been completed and – according to Francis Amasa Walker – a total of about 23 tons of bills had been printed.7 The money was waiting shipment as the Austrian government became aware of the operation.

14.2  The Case and the Judgment The Austrian government initially attempted to confiscate the banknotes by diplomatic means: however British government circles evaded the request. Finally, Emperor Franz Joseph was convinced by Count Rudolf Apponyi, the Austrian ambassador in London, to take the judicial route to seize and destroy the banknotes. The emperor’s lawyers commenced their action in the Court of Chancery because they trusted that – as a court sitting without a jury and standing closest to the reigning powers – it would be the most likely to enforce their claim. The two-instance Court under the Lord Chancellor rendered its judgments in equity, i.e. not on the basis of positive law provisions. At first instance, Stuart, V.-C. ruled as a single judge, an appeal being lodged from him to the Court of Appeal in 4 British International Law Cases, Vol. I, Steven and Sons, London, 1964, pp. 22-60. 5 O’Brien, International Law, London, Cavendish, 2001, p. 20. 6 B. Ambrus, ‘Kossuth Lajos londoni bankópere 1861-1862’, 28 Levéltári szemle 3, 1978, pp. 635-656. 7 F. A. Walker, Money, New York, Henry Holt and Company, 1878, p. 368.

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  14  The Case of Franz Joseph and Lajos Kossuth Chancery, where the Lord Chancellor sat with the two lords justices of appeal, Turner and Knight Bruce, LL.J., and delivered the judgment. The claim of the Austrian Emperor was based on the exclusive power of the sovereign to issue and to permit the issuing of Hungarian banknotes: it was the Austrian National Bank which he had also authorised to issue money with respect to Hungary. The plaintiff further challenged the use of the Hungarian royal coat of arms on the banknote which – according to the Emperor – could only be depicted on an official document in possession of the relevant royal permit. According to the statement of claim, by issuing the money Kossuth had intended to promote revolution in Hungary; further, the introduction of the false banknotes would have caused significant injury to Hungary and thus to the subjects of the plaintiff. Pursuant to the statement of claim, the Court of Chancery was to order the seizure of the false banknotes and their surrender to the plaintiff. It was not unprecedented for a foreign head of state to institute legal proceedings as a private individual before an English court8 – typically seeking the enforcement of a claim in property – which somewhat alleviated the concerns of the emperor’s circle with respect to the political risks inherent in the proceedings. Kossuth immediately saw the potential of the court proceedings as a means of arousing sympathy for Hungary’s cause. In his memoirs, Kossuth wrote that the Emperor of Austria “in his nature as head of state ­bestirred himself to bring a case before a court against a poor Hungarian outcast”.9 This was also understood by Kossuth’s supporters for which reason Cavour, the Prime Minister of ­Piedmont-Sardinia, and the French Emperor, Napoleon III, immediately made available and secretly provided Kossuth with the – not insubstantial – funds necessary for conducting the proceedings.10 Kossuth personally instructed the 12 lawyers representing him. According to the main line of defence, Franz Joseph was not entitled to submit the statement of claim for he was neither de jure nor de facto the king of Hungary. The legal order of succession to the throne was determined by the Crown Succession Act of 1723 passed by the ­Hungarian National Assembly on the basis of Pragmatic Sanction. In the framework of the 1748 ­Aix-la-Chapelle (Aachen) Peace Treaty ending the War of the Austrian Succession, Britain had also acknowledged the order of succession to the throne. Based on the 1723 Act, the last legally-elected Hungarian king was Ferdinand V, still alive at that time. According to the above sources of law, even a possible death of Ferdinand V could not have led to Franz Joseph’s entitlement to the throne. At the time of the trial, Franz Joseph could not de facto be deemed the King of Hungary, its precondition being that he be crowned king on the 8 Eg., in Case 3 Bro. C.C. 292 The Nabob of Arcot v. The East India Company [1791] and in Case 1 Dow and C. 169, Hullett v. The King of Spain it was the nabob of the Indian state of Arcot and the King of Spain who submitted their claims in property. 9 L. Kossuth, Irataim az emigrációból III, Budapest 1882, p. 391. 10 Ambrus 1978, p. 644.

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Marcel Szabó territory of Hungary. During the trial, the English judges had no choice but to familiarize themselves with the Holy Crown theory, pursuant to which each Hungarian noble – and in consequence, also Kossuth – was a member of the Holy Crown and thus entitled to use the Hungarian royal coat of arms.11 The case was decided by Stuart, V.-C. at first instance. The vice-chancellor was not a peer, neither was he a member of the House of Lords, and his lowly ancestry was particularly insulting to Franz Joseph, as the judge was in effect also ruling on the legality of the Austrian monarch’s rule in Hungary. Stuart, V.-C., also referred to as a ‘die-hard Tory’ by Kossuth,12 delivered his judgment on 4 May 1861. In his judgment examining the legitimacy of Franz Joseph’s rule in Hungary, Stuart, V.-C. found that because Queen Victoria had established diplomatic relations with Franz Joseph, thereby de facto recognizing him as the monarch of Hungary, the lawfulness of his rule might not be questioned before the court. Moving on to the issue of printing money, the vice-chancellor stressed that the Kossuth banknotes did not resemble any existing paper money, thus the issue of counterfeiting money was not an issue. However he also determined that, according to international law, each state had ius cudendae monetae, in other words the right to issue money, including both minting coins and printing banknotes.13 Stuart, V.-C. stated that Kossuth and his accomplices’ actions clearly breached this right. The vice-chancellor declared that “the law of the nations is part of the common law of England”14 and, for this reason in particular, the Court had to uphold the claim founded on this right. Thus Stuart, V.-C. did not afford judicial protection to the sovereign prerogatives of Franz Joseph but merely upheld a public international claim related to the monetary sovereignty of Hungary. This is the reason why public international lawyers subsequently referred to Stuart, V.-C.’s reasoning while they remained silent about the standpoint of the judges proceeding at second instance. In his ruling, Stuart, V.-C. ordered the seizure of the Kossuth banknotes and the respective printing plates. Kossuth and Day lodged an appeal against Stuart, V.-C.’s ruling and the case came before the Court of Appeal in Chancery. A trial chamber of three judges proceeded at second instance, the senior judge being the Lord Chancellor. Each judge rejected the appeal in a separate statement and thus the second instance decision was rendered. However, the three judges gave different grounds for upholding the ruling, ordering the seizure of the Kossuth banknotes providing posterity with different interpretations as to the grounds upon which the Court had based its decision. Interestingly – his seniority notwithstanding – the Lord Chancellor was the first of the appellate judges to deliver his judgment. He held that the court might not investigate 11 12 13 14

British International Law Cases 1964, p. 32. Ambrus 1978, p. 646. British International Law Cases 1964, p. 43. Ibid.

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  14  The Case of Franz Joseph and Lajos Kossuth the lawfulness of Franz Joseph’s rule in Hungary as the English monarch maintained diplomatic relations with him.15 At the same time the Lord Chancellor intimated that he essentially found the Hungarian rule of Franz Joseph unlawful. Demonstrating the situation with an example, he said that Napoleon III would also have had the right to initiate proceedings before an English court notwithstanding the fact that he had come to power by a coup d’état.16 For no apparent reason, the Lord Chancellor twice mentioned Napoleon III and it is reasonable to assume that this was a clear indication that  the ­English knew Kossuth’s trial was being financed by him. During the proceedings, the Lord Chancellor called Kossuth “a man of honour as well as a man of extraordinary talent and accomplishment”.17 The Lord Chancellor emphasized the point that the English court could not consider ­foreign law – i.e. Austrian or Hungarian public law – to the extent that English courts might not grant foreign monarchs the right to initiate proceedings in order to enforce royal prerogative rights.18 At the same time, the Lord Chancellor maintained that the National Bank of Austria holding the right to issue banknotes in Hungary, would have incurred a pecuniary loss were the Kossuth banknotes have come into circulation in ­Hungary. Such a potential pecuniary loss would have established the standing of the National Bank of Austria before the competent English court. Insofar as the Bank had a right of action for such a claim, the monarch instilling the right to issue banknotes in Hungary would also be entitled to the judicial protection of his claims in property in England.19 In tacit endorsement of the Holy Crown theory, the Lord Chancellor further maintained that the use of the Hungarian coat of arms might not be held against Kossuth and his a­ ccomplices and that the judgment of first instance had erred in this regard.20 Yet another approach may be derived from the statement of Bruce, L.J., another member of the appeals chamber. According to him, the court had jurisdiction to consider the case both on the basis of English law and international law.21 The jurisdiction based on English law was established by the fact that the place of the civil law violation was in England even if the consequential damage was not incurred in England but rather in a friendly state.22 According to Bruce, L.J., the jurisdiction based on international law was established by the fact that Kossuth and his circle printed the banknotes with the intention of ‘subverting’ the Hungarian government.23 Bruce, L.J.’s arguments are referred to by international lawyers as 15 16 17 18 19 20 21 22 23

British International Law Cases 1964, p. 51. Ibid., p. 56. Ibid., p. 53. Ibid., p. 51. Ibid., p. 54. Ibid., p. 56. Ibid., p. 57. Ibid. Ibid., p. 58.

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Marcel Szabó asserting that it is the international law obligation of every state to thwart all preparations and subversive activities on their territory directed against another state. Contradicting his colleagues Turner, L.J., the third judge, stressed that the Court of Chancery had no jurisdiction to interfere with Kossuth and his accomplices’ activities on the basis of their preparing a revolution in Hungary.24 According to Turner, L.J., the rights of coining and printing money, the ius cudendae monetae, was a right imposed upon states by public international law.25 Even if international law formed part of the law of England, all claims derived from international law were customarily enforced exclusively by diplomatic means. The rejection of righteous claims in the ambit of interstate relations might even lead to lawful war. Nevertheless, claims based on public international law might not be enforced before the municipal courts.26 According to Turner, L.J. neither the violation of the monarch’s sovereign rights, nor the injury incurred by the H ­ ungarian state as a consequence of the circulation of the counterfeit banknotes, established the jurisdiction of the court to decide the case.27 It was merely the potential injury of the Hungarian subjects incurred by the false banknotes that permitted the court to proceed against ­Kossuth’s actions.28 On the basis of the judgment of the Court of Appeal in Chancery, the Kossuth banknotes were seized by the English authorities. In a legal sense the emperor prevailed: however, he had suffered an immense loss of prestige in the moral and political arena. A simple lower noble vice-chancellor had pondered the lawfulness of Franz Joseph’s Hungarian rule, and the Lord Chancellor likened the circumstances of the Emperor’s coming into power with the coup of Napoleon III while glorifying Kossuth. During the trial, British public opinion learned of the suppression of Hungary and this further ignited caution towards Austria and its emperor.29 This turn of events further cooled relations between the British government and the Danube monarchy. The Emperor of Austria case signified yet another nail in the coffin of Hungarian absolutism.

14.3  Critical Assessment of the Case in Academic Literature In the court proceedings phase of the trial, the English Law Magazine published a lengthy scholarly analysis which supported Kossuth’s case in every aspect.30 Interestingly, this was Ibid. Ibid., p. 59. Ibid. Ibid. Ibid. By then there was already a serious apprehension in England of the Danube monarchy, which may be illustrated by the fact that on his visit to London, general Haynau was beaten up by workers of the Perkins brewery and even today there is a plaque on Park Street to commemorate this event. 30 ‘The Emperor of Austria and the King of Hungary v. Day and Kossuth’, The Law Magazine and Law Review 11 or Quarterly Journal of Jurisprude, 3d ser 142, 1861. 24 25 26 27 28 29

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  14  The Case of Franz Joseph and Lajos Kossuth the only article referring to the case by the name of ‘The Emperor of Austria and King of Hungary’ – which may have been the original denomination of the case – but somehow the ‘King of Hungary’ part of the title wore off, possibly due to the lack of ingenuity of Franz Joseph’s lawyers with respect to the question of the emperor’s rights over Hungary. The assessments published after the announcement of the judgment basically criticized the fact that, in the light of the contradictory statements of the four judges to the case, it was not possible to ascertain what made up the ratio decidendi of the case, i.e. it was ­impossible to disentangle the points on which legal argument of the decision was based. In his monograph of 1906, for example, W. Harrison Moore based his critical remarks exactly on this point.31 According to the then prevailing opinion, a foreign state or head of state could only submit a private law claim (e.g. damages claim) to another state’s municipal court (e.g. in case of the injury of a painting owned by the state or the monarch in the other state): claims deriving from the public law of that state could not however be enforced. The majority of the authors criticizing the judgment objected to the fact that the action of Franz Joseph before the English court was inseparable from his public law prerogatives deriving from his nature as monarch. Moore asserted that should Franz Joseph be entitled to represent his Hungarian subjects with no explicit authorization from their side, this right could only be based on public law.32 Referring to the judgment in his book Money in the Law, National and International, Nussbaum bases his critical remarks on the same point.33 At the 1945 session of the Grotius Society, F.A. Mann illustrated the incorrectness of the judgment passed in the Emperor of Austria with an illustrative example. If the richest Andorran citizen declines to pay taxes in his country, it may well be that he not only affects the sovereign rights of Andorra but also the ‘pockets of its subjects’. At the same time, a public law claim based on the tax rules of Andorra may not be enforced before the municipal courts of another state.34 According to Mann, printing money in violation of the state’s prerogative to issue money may have caused pecuniary injury to the monarch, his state or his subjects, nevertheless no proceedings should have been initiated before an English court as the Emperor of Austria case was related to the enforcement of the public law of another state.35 31 H. Moore, Act of State in English Law, John Murray, London, 1906, p. 155. 32 Ibid., p. 154. 33 Nussbaum, Money in the Law, National and International, The Foundation Press, New York, 1951, pp. 35-36. 34 F.A. Mann, ‘Prerogative Rights of Foreign States and the Conflict of Laws’, in: Problems of Public and Private International Law, Transactions for the Year 1954, Vol. 40, London, The Grotius Society, 1955. 35 It is noteworthy that there were not only critics but also supporters of the judgment passed by the Court of Chancery. On the very same session of the Grotius Society Roman Kuratowski also expressed his views and defended the decision emphasizing that “no courts are bound to enforce foreign prerogative rights but I submit there is no rule preventing them from enforcing indirectly such foreign rights when relief is claimed against injury to property, and, in particular, to private property and there is a possibility of pecuniary redress”.

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Marcel Szabó 14.4  Impact of the Case on English Civil Law Development The Emperor of Austria also influenced the development of English civil law. The English judges were gripped by the aspect of the case that Kossuth’s money-printing activities were not illegal because printing ‘fantasy money’ did not amount to printing money; however, on the basis of equity, he might be barred from the said activity due to the injury he had caused to the plaintiff. There have been numerous endeavours in the course of the evolution of English company law where different plaintiffs – referring to the Emperor of Austria case – tried to achieve the issuing of a prohibitive injunction against a prospering business, an imaginative venture on the basis that the activity in question caused them injury.36 The Emperor of Austria case was a precedent for the situation where the court deemed an act – that according to the general view was illegal though not sanctioned by positive law – to be trespass and to order its termination by way of a prohibitive injunction or judgment.37

14.5  Private International Law Repercussions of the Case before the English Court As already mentioned, the Emperor of Austria case reinforced the English legal principle that foreign states and heads of state may bring a private law action for a claim in property before English municipal courts.38 What is more, after the Emperor of Austria case, the English courts tacitly acknowledged that such claims might be more or less related to the constitutional arrangements of the plaintiff states. This view has had an influence on the legal practice of English courts ever since. In the 1986 case Kingdom of Spain v. Christie, Manson and Woods Ltd and Another39 – as the judge himself proclaimed in the judgment40 – it was a veritable turning point when 36 Information provided by professor Bill Cornish. 37 The English scholarly literature of the early 20th century referred to the Emperor of Austria case as a precedent for equity jurisdiction only to be available in cases where there is an act jeopardizing rights in property. (Frank B. Fox quotes the case in this respect in the October issue of the Michigan Law Review of 1906 – F.B. Fox, ‘Note and Comment’, Michigan Law Review, October 1906, p. 493. Lord Denning spelled out the principle in the Acrow (Automation) Ltd. v. Rex Chainbelt Inc. Case [1971] 1 WLR 1676, 1683, pursuant to which any person interfering with another person’s trade or business without an explicit right or justification to do so is in violation of law. According to the lord justice this right is a right in the nature of property and as an example of the protection of such rights based on the general principles of civil law he referred to the Emperor of Austria Case (quoted by L.C. James, The Tort of Intentional Interference with Economic Relations Is There Property in Economic Relationships? Moving Targets, Bows, Arrows and Booby Traps, p. 41.) 38 However Edward Whitney stresses that is only true for cases where the violation is completely analogous to the private law claim of the private individuals. E. B. Whitney, ‘The Northern Securities Company’, 11 The Yale Law Journal 8, June 1902, pp. 387-398 at p. 396. 39 ‘Kingdom of Spain v. Christie, Manson and Woods Ltd. and Another’, International Law Reports, Vol. 118, pp. 579-592. 40 Ibid., p. 589.

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  14  The Case of Franz Joseph and Lajos Kossuth the lawyers of the plaintiff Kingdom of Spain referred to the Emperor of Austria v. Day and Kossuth case as a precedent. Analysing the case, Julian Agnew and Matthew Farrer found that “Kossuth and his forged notes and the judgment against him had prevented the Spanish government’s claim being struck out”.41 The laws of Spain prohibited works of art of outstanding artistic and cultural value from leaving the territory of Spain without ­government consent. Somehow Goya’s famous painting, the Marquesa, was smuggled from Spain and, after lengthy detours, it finally appeared in Christie’s auction house, in London, as a work of art waiting to be auctioned off. The Spanish state attempted to repurchase the painting at a reduced price; however the bid price was rejected by the owner. Thereupon the Kingdom of Spain brought an action before the English court to establish that the painting had been taken illegally from Spain to another country. As the statement of claim pursued not enforceable, but declaratory relief, the English judges would have been obliged to decide on the basis of Spanish law in order to solve the case.42 At first, the court appeared reluctant to rule in favour of the plaintiff ’s claim, because it seemed as if it were to enforce Spanish public law on British territory on official r­ equest of the Spanish state, which would have contravened the territorial limitation of state sovereignty. The plaintiff ’s lawyers however called the court’s attention to the Emperor of ­Austria case. The judge passing the judgment underlined the fact that the continued use of forged documents of the Spanish state, purporting to show the lawful export of works of art from Spain, is directly comparable to the false currency which was under consideration in the Emperor of Austria case. “[…] The question in this case will be whether such debasement would cause damage to the property of the Kingdom of Spain or the property of its subjects”.43 The lawyers of the Spanish state emphasized the fact that the value of Spanish paintings might decrease in cases where the state licence related to their export could be circumvented and further losses would be incurred if the Spanish government were to be forced to repurchase the paintings with taxpayers’ money. The injury incurred by Spain due to the loss of the painting served as a legal basis for the English court to establish its jurisdiction and pass a judgment declaring that the painting was unlawfully taken from Spain. The judgment obviously reduced the chances of selling the painting at Christie’s and definitely reduced its value, making it possible for the Spanish state and the owner of the painting to find an extrajudicial resolution to their dispute.44 41 J. Agnew & M. Farrer, ‘Goya’s ‘The Marquesa De Santa Cruz’, 2 International Journal of Cultural Property, 1992, pp. 137-141 at p. 141. 42 F.A. Mann, ‘Prerogative Rights of Foreign States and the Conflict of Laws’, Problems of Public and Private International Law, Transactions for the Year 1954, Vol. 40, London, The Grotius Society, 1955, p. 34. 43 E. Lauterpacht & C.J. Greenwood (Eds.), International Law Reports, Vol. 118, Cambridge, Cambridge ­University Press, 2001, p. 590. 44 Agnew &Farre, 1992, pp. 137-142, at p. 141.

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Marcel Szabó In line with the general opinion expressed in legal literature, municipal courts are obliged to enforce jure gestionis, i.e. purely civil law claims, while claims construed jure imperii, i.e. based on the public authority of the foreign state, must be rejected. Interestingly, the Marquesa case had already emerged, hypothetically, namely in Mann’s presentation at the Grotius Society decades before the facts of the actual case occurred. The speaker categorically stated: It is also free from doubt that if works of art cannot be exported from Italy without a special licence, the State of Italy cannot come to the English Courts to recover a painting wrongfully exported from Italy.45 The concerns articulated in scholarly literature notwithstanding, based on the judicial practice derived from the Emperor of Austria case the English court hearing the case found it only equitable to rule in favour of the Spanish claim.46 In the light of the English case law evolving on the basis on the Emperor of Austria case it is worth comparing the decision of the French Cour de Cassation in the Duvalier47 case with the judgment of the English appeals court in the Marcos case.48 In essence the two heads of state in both cases – Duvalier in Haiti and Marcos on the Philippines – misused their official position as a head of state to appropriate state assets and flee the country. The governments succeeding the two heads of state attempted to recover the stolen assets. The French Cour de Cassation rejected restoring the treasures stolen by the Duvalier family to Haiti on the basis that its courts might not enforce another state’s public law. On the contrary the English court provided for the confiscation and restitution of former President Marcos’ assets to the Philippine people. The Emperor of Austria case raised a question of interpretation which even the lawyers of the 21st century could not entirely solve. There may be cases where the claims of a foreign state are in part associated with its public law – nevertheless equity demands that the foreign municipal court uphold the claim. This correct approach however is a characteristic 45 Mann 1955. 46 In the mid-20th century the English courts passed two unfortunate judgments. The first related to R ­ ussian princess Olga Paley who successfully escaped from the Soviet Union taking her jewels with her, which however, according to an earlier soviet legal act, were to be confiscated. The jewels were thus soviet state property and the Soviet Union initiated a trial in England. Surprisingly and unfortunately the English court ruled in favour of the Soviet state and against the Russian princess. The parties subsequently closed the case in an out-of-court settlement. Another unfortunate case was the Kahler v. Midland Bank case associated with the socialist change of the Czechoslovakian political system. The case regards shares that were issued in Czechoslovakia and which their owner wanted to convert in England. The owner assigned Midland Bank with converting the shares the Bank however contacted its Czechoslovakian partner, which in turn did not receive the necessary permit from the Czechoslovakian state. The denial of the permit in itself sufficed for the English court to reject the owner’s claim against Midland Bank, thereby effectively enforcing Czechoslovakian public law in England. Mann bitterly noted that the judgment puts the burden on the next generation to find a way to come to a lesser wrong in a similar case (Mann 1955, pp. 36-39). 47 Aix, 25.4.1988, 1988 Clunet 799; Cass. Civ. I, 29.5.1991. 48 Republic of Philippines v. Marcos, 806 F. 2nd 344 (2nd Cir. 1986); 818 F. 2nd 1473 (9th Cir. 1987), 826 F. 2nd 1355 (9th Cir).

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  14  The Case of Franz Joseph and Lajos Kossuth one developed due to the Emperor of Austria case and completely restricted to English law: it is not typical even of the other common law countries.49 The English appeals court recently had to interpret the principles50 laid down in the E ­ mperor of Austria case, when hearing a case similar from a legal point of view: Equatorial Guinea v. Bank of Scotland International and Ors (Guernsey). The facts of the case go back as far as 2004 when the Zimbabwean authorities arrested Simon Mann and his associates accusing him with the intention of overthrowing the rule of President Obiang of Equatorial Guinea. Obiang’s regime is one of the most autocratic and corrupt systems in the world, and back then, the head of state himself came to power by a coup. The head of state is infamous for the personality cult he introduced, and similar to the Ugandan dictator, Idi Amin, his opposition even accused him of cannibalism. Following the arrest of Simon Mann and his associates, Obiang and the government of Equatorial Guinea submitted a claim to the Royal Court of Guernsey pleading for it to order the Guernsey branch office of the Bank of Scotland International to provide information on the bank transactions carried out by Simon Mann on his bank account. The plaintiff stated that they only wished to use the information thus obtained in civil lawsuits, and not in criminal trials. The plaintiffs’ lawyers formulated the statement of claim not as one directed at enforcing the public law of Equatorial Guinea, but as a private law claim. According to the plaintiff, it was the anxiety over the life and safety of Obiang himself and his relatives, the costs of investigating the conspiracy, the expenses associated with the detention and the different proceedings, as well as the costs of enhanced security measures that established the civil law claim on the basis of which he wished to obtain (with the help of the English courts) information ­related to Simon Mann’s English bank account. The first instance court was convinced by the plaintiff ’s arguments and ordered the Bank of Scotland to disclose the requested information. However, in the appeal the case came before the Privy Council. Analysing the decision brought in the Emperor of Austria case, the Privy Council came to the conclusion that a foreign head of state might only formulate a legal claim before an English court with regard to actions not carried out in the exercise of his/her sovereign rights, i.e. with regard to actions that might also be performed by private individuals. As a consequence, any head of state or state might also make a civil law claim to restore 49 For example, the British government suffered a serious legal defeat when attempting to enforce the English legal approach in Australia. Peter Wright, a retired agent of the British secret service, wrote a book about the organization and tried to publish it in Australia under the title Spycatcher. The British government did everything possible to prevent the dissemination of the books. For this purpose it initiated proceedings in Australia mindful of the fact that the court would be unwilling to act as a tool for enforcing British public law in Australia, thus the claim was completely based on civil law. The plaintiff made reference to the fact that confidentiality formed part of the employment conditions of Peter Wright and the infringement thereof violates his civil law obligations stemming from such a trust relationship. However, the Supreme Court of Australia found that Great Britain’s claim was centred on government interests to the enforcement of which Australian courts may not assist. 50 The case was heard by the Privy Council.

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Marcel Szabó property from anyone in unlawful possession of it. In addition, any state might enforce its contract-based monetary claims, furthermore it might even lodge a damages claim in ­relation to the damaging of a state-owned ship: however fines, customs and taxes levied outside of Great Britain might not be claimed before an English court, their financial ­nature notwithstanding. In the light of the above, the Privy Council declared that the plaintiff ’s claim could not be enforced before an English court. In the Emperor of Austria case, the Court of Appeal in Chancery rendered the principles of the rights of action of foreign states/heads of state more precise and considerably ­narrowed down their scope of application. Based on the determinations made in the Obiang case, it seems highly unlikely that the argumentation of the Lord Chancellor in the Emperor of Austria case could be maintained in the future. Namely, according to the Lord Chancellor, since Franz Joseph bore the right to regulate the issuing of money, he also had the right to lodge a complaint against Kossuth’s printing activities with reference to potential damages to the monarch. However the decision of the Privy Council in Obiang made clear that the right of action only adheres to activities that the head of state may carry out in a private capacity and giving permission to issue money is obviously not of such nature. Never­ theless the decision of the Privy Council did not entirely reject the principles laid down in the Emperor of Austria case. This makes it possible that, in compliance with the view put forward by Turner, L.J., the leaders of a foreign state may initiate proceedings to protect the interests of their citizens, requesting the termination of the infringing act potentially causing pecuniary damage and the aversion of the risk of damage. Leaders of a foreign state may bring such an action, notwithstanding the fact that academic literature has rightly indicated that, in the absence of a mandate, such representation might only be based on the public law of the state in question. In this case, English courts may continue to bring fair and equitable judgments in cases such as the Marquesa or the Marcos case.

14.6 Effect of the Case on the Development of International Law and Its Application in English Law As it shall be clear from the following, the Emperor of Austria case contributed to the ­development of public international law in more than one crucial aspect.

14.6.1   Ius cudendae monetae Already in Antiquity, the right to coin money was deemed a royal prerogative; in the ­Roman Empire the right of minting coins and issuing money adhered to the emperor.51 51 A. Nussbaum, ‘Basic Monetary Conceptions in Law’, 35 Michigan Law Review 6, 1937, pp. 865-907, at p. 883.

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  14  The Case of Franz Joseph and Lajos Kossuth In his piece on sovereignty, Jean Bodin (1530-96) highlighted the right of coining money as a substantial element of state sovereignty.52 As Ethan Avram Nadelmann pointed out, the states’ right of minting money (ius cudendae monetae) – which also encompasses the printing of banknotes – was first stated as a sovereign right in international case law in the Emperor of Austria case.53 And with this, the modern concept of the monetary sovereignty of states was conceived.54 The most important public international law implication of the ius cudendae monetae principle is that, based on the latter principle, states may demand that other states recognize their legal personality so that they disallow counterfeiting, i.e. the infringement of such right on their territory.

14.6.2    International Law is Part of English Common Law The Emperor of Austria case, which served as a basis for the reception of international law into English law, was referred to by a no lesser an authority than the Permanent Court of International Justice in The Hague in the Lotus case.55 But what is meant by the phrase: international law is part of the law of England? Lauterpacht dedicated a complete presentation56 to this issue upon the request of the esteemed Grotius Society.57 Lauterpacht pointed out that, based on this principle, English courts were to apply and enforce international law in the framework of national rules.58 However, the rule did not imply that international treaties could be applied directly without their implementation at the national level, and it was not tantamount to the principle of the primacy of public international law.

52 Bodin, On Sovereignty (Cambridge Texts in the History of Political Thought), p. 79. 53 P. Andreas & E.A. Nadelmann, Policing the Globe: Criminalization and Crime Control in International Relations, Oxford University Press, Oxford, 2006, p. 89. 54 In his book on the legal aspects of money Nussbaum describes the monetary sovereignty of states as follows: “monetary sovereignty comprises the legal regulation of cash flow, the acceptance or rejection of foreign currencies and first and foremost the issuing and collection of money from the state”. (A. Nussbaum, Teoría Jurídica del Dinero, Madrid, Librería General de Victoriano Suárez 1929, p. 4.) Charles Proctor underlined that it is derived from the official authority of the states that governments are entitled to issue banknotes. It  is the obligation of each state imposed by international law to prevent and to penalize the printing of other states’ money on their own territory. (Ch. Proctor, Mann on the legal Aspect of Money, 6th edn, Oxford ­University Press, p. 18, n. 1.19). 55 S. S. “Lotus” Case, legal dispute between France and Turkey, PICJ, Ser. A, No. 10, 7 September 1927, Publications of the Permanent Court of International Justice, Series A-No. 10; Collection of Judgments, Leyden, A.W. Sijthoff ’s Publishing Company, 1927. 56 H. Lauterpacht, ‘Is International Law a Part of the Law of the England?’, Grotius Society Transactions, Vol. 25, pp. 51-88, at p. 56. 57 In his presentation Lauterpacht briefly mentioned the Emperor of Austria case, pointing to the fact that in this case the decision was based directly (and according to him, exclusively) on public international law – contrary to Mann for example, who only mentioned the private law implications of the case. 58 J.L. Kunz, ‘International Law by Analogy’, 45 The American Journal of International Law, 2, 1951, pp. ­329-335, at p. 329.

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Marcel Szabó According to English constitutional law, international law is part of the common law: ­nevertheless, statutes may override common law. At the same time, however, in the case of a conflict between common law (including international law) and statute law, there is a presumption that in the absence of a separate legal act to the contrary, the legislator did not wish to override the rules of common law.59 In principle, statutes rank higher in the constitutional hierarchy of the United Kingdom than international law.60 However, the UK is aware of the fact that the breach of international law, by way of conflicting statutes, would entail the UK’s liability under international law. The majority of English lawyers take the view that customary international law cannot be implemented. Thus based on the rule international law is part of the law of England, it is also directly applicable in English law.61 Premised on this point, the R v. Jones62 case was decided by the House of Lords. The essence of the case was that a group of British citizens damaged certain military vehicles before these could be deployed in the Iraq war. In the course of the criminal proceedings against them, the appellants argued that their actions could not be deemed as crimes, but much rather as self-relief with the aim of impeding the commission of crimes, namely the crime of aggression. However, the English Criminal Law Act (obviously) contained no such crime as aggression and, for this reason, the British citizens causing damage to the military equipment argued that customary international law formed part of the English legal system even without parliamentary implementation of it. (The fact that the prohibition of aggression is also part of international ius cogens was not brought up in the case.) To substantiate their case, the appellants referred to among others the Emperor of Austria v. Day and Kossuth case, in which Stuart, V.-C. ruled that public law claims recognized by international law were permissible since international law was part of the law of England. The binding force of former precedents could only be circumvented by the House of Lords by severing a part of international law – the rules of international law related to crimes – from all other norms of international law. Based on this, it ruled that customary international law was generally automatically assimilated into the domestic law of England. However this was not true for the rules of criminal law, which could only be enforced after statutory incorporation in England and, for these reasons, the House of Lords rejected the British citizens’ self-relief line of defence.63 59 D.C. Vanek, ‘Is International Law Part of the Law of Canada?’, 8 The University of Toronto Law Journal 2, 1950, pp. 251-297 at p. 259. 60 Ibid. 61 According to McNair the Emperor of Austria case is proof of the fact that international law was enforced in early English law without reservation. A.D. McNair, ‘The Method Whereby International Law Is Made to Prevail in Municipal Courts on an Issue of International Law’, Transactions of the Grotius Society, Vol. 30, Problems of Peace and War, Transactions for the Year 1944, pp. 11-49, at p. 15. 62 R v. Jones (Appellant) [On Appeal from the Court of Appeal (Criminal Division)] [formerly R v. J (Appellant)] [2006] UKHL 16. 63 The case was dealt with in detail in: C. Villarino Villa, ‘The Crime of Aggression before the House of Lords’, 4 Journal of International Criminal Justice 4, 2006.

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  14  The Case of Franz Joseph and Lajos Kossuth 14.6.3    Impeding an Attack against a Third State According to W. Harrison Moore, based on the Emperor of Austria v. Day and Kossuth case, making hostile preparations against a foreign state cannot be regarded as a threat to the peace of England, therefore the English court would not intervene to obstruct a planned insurgency in another country.64 At the same time, the author suggested that in the future international law should foresee the rule that states have an obligation to impede hostile actions against other states stemming from their own territory.65 By contrast, Tomas M. Frank and Deborah Niedermayer found that the Emperor of Austria case served as a precedent for states’ obligations to thwart all hostile actions against other states which originate from their territory.66 The authors published the article in 1989: however since 11 September 2001 it seems that this issue has – unfortunately – become of even greater relevance. The initial premise of the authors is the following: citizens of state B living in emigration in state F organize an attack against the civil facilities and citizens of state B. Preparations, training and attack are to be organized and started from state F. These attacks are not only of a military nature (be directed against military targets), but may also be directed against civilians.67 The authors contend that, in such a situation, it is an international law obligation on state F to take action in order to obstruct the planned attack. The authors could merely bring up two international law precedents to substantiate their proposition. One of which was the Emperor of Austria, while the other was an American case related to printing money, with the factual difference that it concerned an attempt in the United States of America to counterfeit money valid and in circulation in Bolivia.68 The international recognition of this alleged principle of law is further weakened by the fact that when a person was accused in the United States in 1967 that he was planning to blow up rail tracks in Rhodesia, his defence attorney attempted to achieve the discontinuance of proceedings with reference to desuetudo, i.e. a custom sinking into oblivion.69 This does not seem to substantiate the widespread recognition of the rule of international law asserted by the authors, notwithstanding the fact that it would be of extraordinary significance in the 21st century.

64 Moore, 1906. 65 Ibid. at p. 155. 66 T.M. Frank & D. Niedermeyer, ‘Accommodating Terrorism: an Offence Against the Law of Nations’, Israel Yearbook on Human Rights, 1989, pp. 75-130 at p. 111. 67 Ibid., p. 75. 68 U. S. v. Ajona, 120. U.S. 479 (1877). 69 Frank & Niedermeyer 1989, p. 121.

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Marcel Szabó 14.6.4   Providing Damages in the Absence of Other Jurisdictions in International Criminal Cases The depth and legal manifoldness of the Emperor of Austria case is evidenced by the fact that, even a century after the judgment was made, time after time the case has resurfaced with new aspects in academic literature. In his monograph of 1983, Michael Meyer ­asserted that it would greatly contribute to the further development of international law if – in the absence of other jurisdictions – the municipal courts of individual states were at least entitled to adjudicate victims’ damages claims. According to Meyer, the Emperor of Austria case would be the proper precedent and historical example for the injured parties when submitting such claims.70

14.7  Comitas Gentium As previously discussed, states normally do not afford the possibility to enforce the law of other states before their municipal courts. Situations may arise, however, where comitas gentium may be justified on the basis of international courtesy, that the municipal courts consider the law of other states. In this case it is not the parties to the case but a public international law (non-binding) rule of comity that requires courts to take into account other states’ domestic laws in sufficiently significant cases. However, comitas gentium does not extend to considering other states’ tax laws.71 The relief sought in the Regazzoni v. K.C. Sethia72 case was also based on international comity. Regazzoni ordered 500,000 jute bags from the English company K.C. Sethia Ltd. operating in India with the purpose of shipping these to South Africa. The company failed to deliver the goods duly ordered. It is important to note that since 1878, India had banned the exportation of any product to South Africa due to a long-standing disagreement between the two states. Regazzoni demanded damages from K.C. Sethia. The parties had previously stipulated the jurisdiction of the English courts for the settlement of disputes arising from the contract. On appeal, the case came before the House of Lords. Before the court, K.C. Sethia argued that both parties to the contract were aware of the fact that its goal was unlawful. Thus, according to the company, Regazzoni’s claim could not be enforced by judicial means. The fate of the case was therefore contingent upon the English 70 A.M. Meyer, ‘Liability of Prisoners of War for Offences Committed Prior to Capture: The Astiz Affair’, 32 The International and Comparative Law Quarterly 4, 1983, pp. 948-980 at p. 971. 71 The judgment passed in the Emperor of Austria v. Day and Kossuth case also touches upon this as several international lawyers pointed out. See e.g., ‘Extrastate Collection of Taxes’, 33 Virginia Law Review 2, 1947, pp. 179-187, at p. 181. 72 Regazzoni v. K.C. Sethia Ltd, England, House of Lords, 21 October 1957. Assessed by E. Lauterpacht, International Law Reports, London, Butterworths, 1961 pp. 15-27.

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  14  The Case of Franz Joseph and Lajos Kossuth court taking foreign law into account, which foresaw the vitiating factor in question. The House of Lords found that the key to the case was the principle set forth in the Emperor of Austria v. Day and Kossuth case, according to which from the comity of nations the rule has been to pay respect to the laws of foreign countries, yet, for the general benefit of free trade, ‘revenue laws’ have always been made the exception; and this may be an example of an exception proving the rule.73 Based on the foregoing the House of Lords rejected Regazzoni’s damages claims.74

14.8  Final Thoughts The Emperor of Austria case yields several important lessons. The first regards the metajuridical risks of an action brought by one state before another state’s municipal court: although Emperor Franz Joseph won the law suit in a legal sense, from a moral and political aspect he had suffered a devastating defeat. Perhaps, it is not even perceivable from the 21st century point of view what a loss of prestige it meant for the Austrian Emperor when a simple English lower-ranking noble, the vice-chancellor, investigated the lawfulness of his Hungarian rule. Albeit, several cases preceded the Emperor of Austria case where foreign states brought actions before other states’ municipal courts, this tendency drastically declined after the dispute between the Austrian emperor and Kossuth was settled. It seems certain that the law suit gave momentum to the process leading up to the AustroHungarian compromise. The Emperor of Austria case is remarkable also from a scholarly point of view, as it bears legal consequences reaching far beyond the English legal system. Maybe the most important legal implication of the Emperor of Austria case is of its public international law nature: this case established the modern concept of the monetary sovereignty of states, the ius cudendae monetae. Based on this prerogative, states enjoy an exclusive right to issue money not only in relation to minting coins, but also with regard to printing bank notes as well as granting others a permit to issue money, which must be observed by all

73 British International Law Cases 1964, p. 54. 74 The comitas gentium emerged in one other aspect of the Emperor of Austria case. Namely, it is also a rule of comitas gentium that foreign heads of state are entitled to proceed before the other state’s court free of expenses. In the Monaco v. Monaco case reference was made to the Emperor of Austria case where the court afforded Franz Joseph an exemption from expenses based on the aforementioned rule of comitas gentium. Incidentally, the Monaco v. Monaco case was brought before the court by the prince of Monaco against his former son-in-law in order to determine that his grandson prince Rainer (the current monarch) may only be taken from Great Britain to another country with the permission of his grandfather. The court declared that if the plaintiff prince were to offer the reimbursement of costs previous precedents would not hinder its acceptance. The case was assessed by E. Lauterpacht, Annual Digest and Reports of Public International Law Cases, Being a Selection from the Decisions of International and National Courts and Tribunals Given During the Years 1935-37, London, Butterworth and Co. Publishers, 1941, p. 23.

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Marcel Szabó on its sovereign territory. A further international law implication of this right is that the state may demand of other states, recognizing its legal personality, that they prohibit the infringement of this right by counterfeiting on their territory. The second important aspect of the case is that it clarified the relationship between the non-codified British constitution and public international law. The Permanent Court of International Justice quoted the case in this respect. Public international law is part of English common law, as a result English judges are to take its rules into account. However, should there be a conflict between international law and statute law, according to the concept in English law, then statute law shall prevail. At the same time Great Britain must assume international liability for a possible breach of international law. The Emperor of Austria case brought up further points in international law which occupy international lawyers even after over a century. With a view to the lessons of the case, the question arose whether or not there exists a general legal obligation according to which states are to impede an attack originating from their territory against another state. In the author’s opinion, the Emperor of Austria case substantiates the existence of such an obligation, an obligation ever so topical since 11 September 2001. Another possible lesson from the Emperor of Austria case could be that in international law cases even where they have no criminal jurisdiction, municipal courts can consider adjudicating damages claims of injured parties for reasons of equity. The Emperor of Austria case is of extraordinary significance in English private international law also yielding important lessons for other states’ legislation in the field of private international law. There may be cases where the state would bring an action in its own name but primarily on behalf of its citizens before another state’s court against an unlawful and detrimental activity conducted against the state itself and by definition all of its citizens. States normally deny enforcing other states’ public law before their courts. There may be cases however where the foreign state’s claim is to some extent related to its public law – nevertheless, for reasons of equity the settlement of the case could be reasonably expected of the other state’s court. The Marquesa and Marcos cases substantiate the fact that the lessons from Emperor of Austria case have contributed to finding a fair solution in such cases. The Emperor of Austria case could in the future facilitate the adoption of national rules of private international law which allow the enforcement of claims related to the redemption of stolen assets taken abroad by criminal government representatives without, at the same time opening, the door to enforcing property claims stemming from governments’ criminal activities.75

75 Such as the case of princess Olga Paley, see note 46.

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  14  The Case of Franz Joseph and Lajos Kossuth Certain misinterpretations76 notwithstanding, the Emperor of Austria case contributed greatly to the development of English civil law and private international law as well as the development of public international law. The Emperor of Austria case contains several important legal aspects that may serve as a starting point for further developments in international law, even in the 21st century. This is why the Emperor of Austria case may go on to be a source of inspiration and reflection not only for lawyers of the 19th and 20th centuries, but for lawyers of our times as well.

76 According to Geneviève Burdeau, the Emperor of Austria v. Day and Kossuth case may be associated with the questions related to the legal status of governments in exile. In Burdeau’s opinion governments in exile may be classified into two categories: the first category encompasses governments which have been banished by hostile military occupation, while the other category includes all other types of governments in exile. She deemed Kossuth’s foreign activities as belonging to the second group, even though in the Emperor of Austria case Kossuth is exclusively referred to as a private person. The author adds that at the time of ­Ferdinand V Kossuth was the minister of finance and as such he was entitled to minting money, however, the ­English court denied him this right considering he did not have any de facto power in Hungary. In Burdeau’s opinion the case concludes that governments in exile do not enjoy the right of minting money. (G. Burdeau, ‘L’exercice des competences monétaires par les Etats’, Recueil des Cours, Collected Courses of the Hague academy of International Law, 1988, pp. 215-369 at pp. 280-81). The commentary on the Harvard Research Draft Convention on Jurisdiction with Respect to Crime refers to the Emperor of Austria case as one which confirms that even the most reluctant states are prepared to exercise criminal jurisdiction when the case concerns counterfeiting other states’ money, letters of credit or stamps – albeit we know that according to the judgment passed by the English justices the Kossuth banknotes were not deemed as counterfeit money. (The American Journal of International Law, Vol. 29, Supplement: Research in International Law, 1935, p. 561) What’s more, the Emperor of Austria case was earlier drawn upon to evidence the fact that equity courts do not exercise criminal jurisdiction. (‘Jurisdiction of a Court of Equity in the Commission of Criminal Acts’ (Author: C.A.D.) 6 Michigan Law Review 6, 1908, pp. 491-493, at p. 491).

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Part IV Developments in European Law

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15

The European Union as a Source of Public International Law

Penelope Nevill* This article asks what contributions the European Union (hereinafter ‘EU’) has made to the international legal system as a source of international law. In particular, it focuses on the contribution of decisions of the EU courts as subsidiary sources of international law under Article 38(1)(d) of the Statute of the International Court of Justice (hereinafter ‘ICJ’).1 Drawing on this analysis, it goes onto consider the impact of the EU as a source of ‘practice accepted as law’ in the work of the International Law Commission on the responsibility of international organizations. A traditional or formalist approach to international law is adopted for two reasons. First, international lawyers advising what the international law is on a specific matter still answer that question by reference to the traditional sources and methodology of international law.2 Second, assessing the EU’s contribution to the content of international law through the traditional methodology of sources may inform the discourse on alternative models of international law which hold up the EU as an ­example of the potential of international law beyond the state.3

15.1 The Contribution of the EU Courts as a Subsidiary Source The EU is, of course, established by ‘particular’ international conventions which establish rules for its member states. To that extent the EU treaties are a source of public international law recognized by Article 38(1)(a) of the ICJ Statute as binding on the 27 EU

*

Barrister at 20 Essex Street, London and Visiting Tutor in Public International Law, King’s College, ­London, and Affiliated Lecturer, University of Cambridge. 1 Art. 38(1), the applicable law provision of the ICJ Statute requires the ICJ to apply “(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) [. . .] judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law”. 2 H. Thirlway, ‘The Sources of International Law’, in: M. Evans (Ed.), International Law, 3rd edn, New York, Oxford University Press, 2010, Chap. 4, p. 99; M. Koskenniemi, ‘What is International Law For?’, Evans, 2010, p. 32. 3 As discussed in A.-M. Slaughter, Tulumello & Wood, ‘International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship’, 92 AJIL, 1999, pp. 367, 378; D. McGoldrick, International Relations Law of the European Union, Longman, New York, 1997, pp. 210-211.

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Penelope Nevill member states,4 which may as a matter of international law prevail over the member states’ other international obligations.5 The EU also contributes as a source in the sense of Article 38(1)(a) of the ICJ Statute when, as a legal person recognised in accordance with the rules of international law governing legal personality, it negotiates and concludes treaties with third states and other international or intergovernmental organizations. The EU and its predecessors have been increasingly active in this regard: the Treaties Office of the EU Commission on the Europa website lists 779 concluded bilateral treaties and 240 multilateral treaties to which the EU is a party. As a treaty party, the EU’s statements and practice will affect their interpretation and application when questions of interpretation of that treaty arise.6 The readiness of third states to enter treaties with the EU reflects its real ‘soft’ power as an international actor.7 The more interesting question is whether there is an identifiable EU contribution to general international law, i.e. the customary rules of public international law which apply ‘universally’ to all states, international organisations or individuals, or the interpretation and application of provisions common to human rights and trade treaties. One way of assessing this is by considering the use of decisions of EU courts as a subsidiary source of international law under Article 38(1)(d) of the ICJ Statute. There are no references to the decisions of the EU courts in judgments of the ICJ, the InterAmerican Court of Human Rights, the Iran-US Claims Tribunal or International Tribunal for the Law of the Sea (hereinafter ‘ITLOS’) awards. By contrast, the ICJ, Iran-US Claims Tribunal and the Inter-American Court cite judgments of the European Court of Human Rights and domestic courts.8

4 See G. Fitzmaurice, ‘Some Problems Regarding the Formal Sources of International Law’, in: Symbolae ­Verzijl, La Haye, M. Nijhoff 1958, p. 153; I. Brownlie, Principles of Public International Law, 7th edn, O ­ xford, Oxford University Press, 2008, pp. 1-2. See A. Pellet, in: A. Zimmerman, Ch. Tomuschat & K. Ollers-Frahm (Eds.), The Statute of the International Court of Justice, Oxford University Press, 2006, pp. 703-704. 5 Mox Plant Case (Ireland v. UK), Order No. 3, 24 June 2003, 126 ILR 310, paras 14-28. 6 Arts. 31(3)(a) and (b) of the Vienna Convention on the Law of Treaties 1969 and the equivalent provisions of the Vienna Convention on the Law of Treaties between States and International Organizations or ­between International Organizations 1986 (not in force; while ten international organizations have signed the treaty and twelve have ratified it, the EU has not). 7 F. Andreatta, ‘Theory and the European Union’s International Relations’, in: C. Hill & M. Smith (Eds.), International Relations and the European Union, Oxford University Press, Oxford, 2005, p. 35, and S. Meunier & K. Nicolaidis, The European Union as Trade Power, Hill & Smith, 2005, Chs. 14 & 12. Because of its economic strength, the EU together with the US has enjoyed “a nearly predominant position of power and influence” within the WTO (and IMF): Jackson, The Jurisprudence of the GATT and the WTO: Insights on treaty law and economic relations, Cambridge University Press, 2000, pp. 260-261. 8 For example, the decision of the Supreme Court of Canada in the Reference by the Governor-General concerning Certain Questions relating to the Secession of Quebec from Canada ([1998] 2 SCR 217; 161 DLR (4th) 385; 115 ILR 536) was cited by counsel and referred to but distinguished by the ICJ in the Kosovo Advisory Opinion, ICJ Reports 2010, paras 55-56. Decisions of national courts on the immunity of 27 state officials were referred to the ICJ and considered by it in Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), ICJ Reports 2002, p. 3, para. 58.

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  15  The European Union as a Source of Public International Law World Trade Organization (hereinafter ‘WTO’) panel and Appellate Body reports refer to the judgments of the European Court of Justice (hereinafter ‘ECJ’) – and the Appellate Body has cited the ECJ as an example of an international court or tribunal which, like the ICJ, has the power to give an advisory opinion9 – but references are for the most part made in the context of an analysis of compliance by the EU and its member states with their WTO obligations, not as a subsidiary source of international law. States’ attempts in proceedings before WTO Panels and its Appellate Body to rely on ECJ decisions concerning the application and interpretation of free movement provisions of the EC Treaty (Treaty Establishing the European Community, now the Treaty on the Functioning of the European Union, hereinafter ‘TFEU’) as guides to interpretation of similar terms in the WTO agreements have generally been unsuccessful. In Korea – Taxes on Alcoholic Beverages (1998) the Panel indicated that “there is relevance in examining how the ECJ has defined markets in similar situations to assist in understanding the relationship between the analysis of non-discrimination provisions and competition law”.10 But it also said it was “mindful that the Treaty of Rome is different in scope and purpose from the General Agreement, the similarity of Article 95 and Article III, notwithstanding”.11 More recently, in China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (2009)12 China relied on an ECJ judgment13 to support its position that the measure challenged fell under the free movement of services (GATS), not goods (GATT). The Panel gave the argument short shrift:14 the fact that it may be legally appropriate for the [ECJ] not to apply EC rules on the free movement of goods to an import transaction involving hard-copy cinematographic film does not mean that it would be legally appropriate for a WTO panel not to apply China’s trading rights commitments to an analogous import transaction. ECJ judgments have been cited by one Panel to interpret the scope of analogous public p ­ olicy derogations under the GATT.15 However, using ECJ judgments in this way might be characterised as an example of the use of subsequent practice of the contracting parties to interpret 9 United States – Continued Dumping and Subsidy Offset Act of 2000, 16 January 2003, note 135. 10 Panel Decision of 17 September 1998, para. 10.81. The specific question before the Panel was the relevance of ECJ case law on “similar products” under the tax provision which is now TFEU Art. 110 to the interpretation and application of Art. III of the GATT on national treatment of taxation. 11 Ibid. 12 Panel Decision of 12 August 2009. The action was brought by the United States. The EC reserved its rights to participate. 13 Case C-17/92 Federación de Distribuidores Cinematográficos v. Estado Español and Unión de Productores de Cine y Televisión [1993] ECR I-2239. 14 Note 12, para. 7.555. 15 United States – Measures Affecting the Cross-border Supply of Gambling and Betting Services, 10 November 2004, para. 6.473.

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Penelope Nevill a treaty provision, rather than as an example of their use as a subsidiary judicial source under Article 38(1)(d) of the ICJ Statute. The Panel’s reasoning leaves open both possibilities.16 The European Court of Human Rights’ (hereinafter ‘ECtHR’) references to the judgments of the ECJ are not infrequent,17 but there are only a handful of cases where the ECJ judgment has been invoked by the Court in support of a particular interpretation or application of a Convention right.18 However, the limited impact of ECJ fundamental rights jurisprudence on that of the ECtHR is only one aspect of a complex interchange between these two treaty systems, a point returned to below. By comparison to the ECtHR, human rights committees under the United Nations’ (‘UN’) human rights treaties have been less persuaded by ECJ jurisprudence. The Human Rights Committee under the International Covenant for Civil and Political Rights 1966 has held that the Netherlands’ reliance on ECJ decisions to support its arguments that it was not in breach of EU law did not prevent it being in breach of the ICCPR.19 The International Covenant on Cultural, Social and Economic Rights 1966 Committee found, in its periodic report on Germany, that the restrictive approach taken by the ECJ to the meaning of ‘administration of the state’ breached Article 8(2).20 EU court judgments are most often cited as subsidiary sources of international law by tribunals hearing investor-state disputes under bilateral investment treaties. The ECJ’s judgments and practice have been cited alongside ICSID awards, WTO Appellate Body decisions and judgments of the ICJ, Permanent Court of International Justice (hereinafter ‘PCIJ’) and regional human rights courts to support the acceptance in international law 16 The Panel observed that “Other jurisdictions have accepted that gambling activities could be limited or prohibited for public policy considerations, in derogation of general treaty or legislative rules”, citing various decisions of the ECJ: Ibid., para. 6.473. For a recent discussion on the dual role of national court judgments as state practice and subsidiary sources, see A. Roberts, ‘Comparative international law? The role of national courts in international law’, 60 ICLQ, 2011, p. 57. 17 ECJ judgments have been listed in recent cases as ‘relevant’ international law materials alongside national court and ICJ judgments, but not necessarily referred to in the ECtHR’s reasoning, e.g., Al-Jedda v. United Kingdom, Appl. No. 27021/08, 7 July 2011 (2011) 53 EHRR 23. 18 Micallef v. Malta, Appl. No. 17056/06, 15 October 2009 (2010) 50 EHRR 2009, paras 78-85 (ECJ jurisprudence was relied on, alongside those of national courts, to support the conclusion that Art. 6 protections now extend to interim and provisional measures), Stec v. UK, Appl. No. 65731/01, 12 April 2006 (2006) 43 EHRR 47, para. 58 (the ‘strong persuasive value’ of the ECJ’s finding that Art. 7 of the Equal Treatment Directive 79/7/EEC allowing derogation from the principle of non-discrimination for the purposes of old age or invalidity benefits was objectively justifiable to the question of whether discrimination on the basis of sex in UK pensions law was legitimate and objectively justified under Art. 14), Lithgow v. UK, 7 March 1984 (Commission Decision) (1985) 7 EHRR 56, para. 370 (noting the ECJ has adopted a similar test of proportionality for claims of breach of Art. 1, Protocol 1), Maslov v. Austria, Appl. No. 1638/03, 23 June 2008, para. 93 (that in cases of expulsion the role of the court is to look at the actual expulsion not the final expulsion order), Sufi and Elmi v. UK (Applications nos 8319/07 and 11449/07), 28 June 2011, paras 225-226 (Art. 3 of the Convention offers comparable protection to Art. 15(c) of the Qualification Directive as interpreted by the ECJ). See Hobbs v. UK, Appl. No. 63684/11, 14 November 2006 (2007) 44 EHRR 54, paras 66-69 (refusing a remedy of ‘levelling up’ for inequality of treatment) where the Court expressly chose not to follow ECJ jurisprudence. 19 [1999] UNHRC 41, CCPR/C/66/D/786/1997, 29 July 1999. 20 E/C.12/1/Add.68, 24 September 2001, para. 22.

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  15  The European Union as a Source of Public International Law of the principle of abus de droit;21 as an example of international litigation practice in the context of challenges to the participation of certain counsel;22 as treating gambling as any normal part of the entertainment industry and therefore a legitimate investment;23 upholding the principle of legitimate expectations and legal certainty in relation to governmental conduct24 and the clarity required in legislation;25 for the principle that review of arbitration awards should be limited in scope and annulment of, or refusal to recognize, an award should be possible only in exceptional circumstances;26 the interpretation of the term ‘measures’ in international law;27 and for the proposition that not all losses sustained in the face of government economic policy entail compensation.28 The EU treaties are cited as an example of a treaty with specific dispute resolution mechanisms29 and the ECJ as one of the courts or tribunals that can carry out ‘international judicial review’.30 The conclusion drawn from this survey is that, apart from investor-state arbitration awards and a handful of recent ECtHR decisions, it is rare to find any reference to the judgments of the ECJ in a discussion about the existence or content of a customary rule or the interpretation of a particular treaty provision.

15.2 Why Is the Contribution of the EU Courts Limited? There are a number of possible explanations for the limited contribution of the ECJ to international law as developed by international courts and tribunals, two of which will be explored here.31 The first is the ECJ’s assertion of the EU’s ‘otherness’ from international law and the international legal system. Although in the early case of Van Gend en Loos the ECJ confirmed the Community was a legal order of international law, at the same time it asserted the Community’s exceptional nature as a ‘new legal order’.32 The principles of direct effect and primacy

21 Mobil v. Venezuela, ICSID Case No ARB/07/27, 20 June 2010, para. 175. 22 Rompetrol Group NV v. Romania, ICSID Case No ARB/06/3, Decision of the Tribunal on the Participation of a Counsel, 14 January 2010, para. 22. 23 International Thunderbird Gaming v. Mexico, UNCITRAL Award, 26 January 2006, para. 18. 24 Ibid., paras 27, 49. 25 Ibid., para. 46. 26 CME Czech v. Czech Republic, Judgment of the Svea Court of Appeal of 15 May 2003, Case No T8735-01. 27 Loewen v. United States, ICSID Case No ARB(AF)/93/3, 5 January 2001, para. 45. 28 Amco Asia v. Indonesia, ICSID Case No ARB/81/1, Resubmitted case award of 31 May 1990, para. 128. 29 International Thunderbird Gaming v. Mexico, UNCITRAL Award of 26 January 2006, para. 13. 30 Ibid. 31 Other related explanations include the ECJ’s particularly purposive or teleological (and at times unpredictable) approach to the interpretation of its own treaties and the difficulty of using EU law as source with any confidence because of its volume and complexity. 32 [1963] ECR 1, 12. The view that EU law between member states is not governed by principles of international law but by EU law as a distinct source of law was the European Commission’s position in its submissions to the ILC’s work on the responsibility of international organizations: see A/CN.4/637, 14 February 2011, pp. 19-21.

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Penelope Nevill that flowed from this characterization were not new to international lawyers.33 What was new was the assertion of the primacy of EU legal acts over all domestic rules including constitutional rules, combined with the sheer volume of EU legislative activity that would come to have direct effect and primacy in national legal systems. Indeed, 23 years later the ECJ would distinguish the EC Treaty from international treaties by recasting it as a ‘constitutional charter of a Community based on the rule of law’.34 Forty five years after Van Gend en Loos the ECJ’s Kadi Judgment rejected the priority of EU member states’ treaty obligations under the UN Charter over their obligations under EU law, despite the priority accorded by Article 103 of the Charter to Charter obligations over other treaty obligations. This was perhaps the strongest indication yet that the ECJ no longer regards the EU as a treaty system governed by, or even subject to, international law.35 Therein lies a second explanation: uncertainty as to what kind of ‘thing’ the EU is. The answers vary depending on vantage point, purpose of characterization and inclination: EU lawyers may describe it a supranational legal system36 or ‘executive federalism’;37 ­international relations scholars as a ‘normative civilian power’38 or ‘soft’ power;39 public international lawyers as a regional international or intergovernmental organization (albeit one that has greater powers and depth than any other), a ‘legal order’,40 a ‘quasi-state’,41 an example of evolving global governance42 or 33 Ibid. and Case 6/64, Costa v. ENEL [1964] ECR 1141. For a summary of the varying approaches to the incorporation of international law into municipal law, see A. Cassese, International Law, 2nd edn, Oxford, Oxford University Press 2005, Ch. 12. 34 Case 294/83 Les Verts v. Parliament [1986] ECR 1339, para. 23, Opinion 1/91 (EEA Agreement) [1991] ECR I-6079. 35 Case C-402/05 [2008] ECR I-6351. See the reasoning at paras 281-327 where the ECJ makes repeated reference to the ‘Community legal order’ as distinct from the ‘international legal order’. See also, T. Hartley, ‘­International Law and the Law of the European Union: A Reassessment’, 72 BYIL 1, 2001. The ECJ’s reasoning in Kadi was tempered to some extent in the 2011 judgment in Case C-548/09 P Bank Melli v. Council of the European Union [2011] ECR I-000 also on implementation of UN sanctions, where the ECJ at least referred to the EU as an entity created by treaty (para. 102). 36 Alan Dashwood describes it as a ‘constitutional order of sovereign States’. 37 See e.g., the references in F. Hoffmeister, ‘Litigating against the European Union and its Member States: who responds under the ILC’s Draft Articles on international responsibility of international organizations’, 21 EJIL 3, 2010, pp. 723, 733. 38 Meunier & Nicolaïdis, note 7, Ch. 12, p. 248. 39 Andreatta above, n. 7, p. 35. 40 The Mox Plant arbitral tribunal, note 5, para. 27. 41 A. Bradford & E.A. Posner, ‘Universal Exceptionalism in International Law’, 52 Harvard International Law Journal 1, 2011, p. 12. n. 44. 42 Anderson, in ‘Squaring the Circle? Reconciling Sovereignty and Global Governance Through Global ­Government Networks’, 118 Harvard Law Review, 2005, p. 1255, describes seven “leading contemporary positions on sovereignty [. . .] and global governance (as ordinarily understood to mean some kind of legal structure of rules binding on sovereigns or to mean the weakening or even disappearance of sovereignty altogether)” ( p. 1260), two of which derive from the theory and experience of the evolving EU. One is the ideal of pooled sovereignty as “a progressive, transformative ideal whose optimal end is not the continued reign of democratic sovereigns, but is instead a pooling of sovereignty that leads to a new world federal political institution no longer dependent for its legitimacy on the assent of democratic sovereigns [. . .]” (p. 1263). Another is liberal internationalism, which “require[s] no real assent from the bottom up for their legitimacy; the model’s legitimacy depends not on consent but the presumed rightness of its human rights universals [. . .] It evinces an understanding that it is necessary to move from the legitimacy now residing in democratic sovereigns to legitimacy residing in transnational, supranational institutions”. (p. 1265).

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  15  The European Union as a Source of Public International Law as a disaggregated sovereignty that serves as a model for a new world order.43 Perhaps the most startling characterization comes from the European Commission, which in 2011 referred to the EU as a ‘situation of regional (economic) integration’,44 a self-description that studiously avoids casting the EU as any kind of legal or political order. This opacity is reflected in the ECtHR’s jurisprudence. EU treaties and secondary legislation may be treated by the ECtHR as a species of domestic law (because of the principle of direct effect), which creates enforceable property rights under Article 1 Protocol 1,45 election rights under Article 3 of Protocol 146 with which the respondent state is obliged to comply to ensure its compliance with Article 3,47 or as law that establishes that its interference with family rights under Article 8(2) is in accordance with law.48 Yet in other contexts the ECtHR characterizes the EU as a distinct treaty regime. The most notable example is its refusal to take into account the time spent on preliminary references to the EU courts in claims for excessive delay under Article 6(1) because that would “adversely affect the system instituted by (TFEU Art. 267) and work against the aim pursued in substance in that Article”.49 The ECtHR’s principle of presumptive equivalence – the presumption that a contracting party has not departed from the requirements of the Convention if it has complied with its EU law obligations – 50 is similarly premised on the EU’s status as an international organization operating alongside the ECtHR on the international level.51 Thus there is no clear characterization of the EU as either an international or a domestic entity in terms of how the ECtHR invokes the EU. EU sources may be perceived and received as either ‘international’ or ‘national’ or, as in MSS v. Belgium, both: an obligation of national law implementing an EU directive which also represents an emerging international standard alongside the work of the UN Refugee Agency and the 1951 Geneva Convention on Refugees. That is, the treatment of EU sources on reception is context rather than category

43 A. Slaughter, A New World Order, Princeton University Press, 2004, reviewed by Anderson, Ibid., pp. 1298-1300. 44 In submissions to the International Law Commission (ILC), recorded by the ILC in its Report on the word of its sixty-third session (26 April to 3 June and 4 July to 12 August 2011), General Assembly Official Records, Sixty-sixth session, Supplement No. 10 (A/66/10 and Add.1), p. 38. 45 Dangeville SA v. France, Appl. No. 36677/97, 16 April 2002 (2004) 38 EHRR 32, paras 46-48. 46 Matthews v. UK, Appl. No. 24833/94, 18 February 1999 (1999) 28 EHRR 361. 47 MSS v. Belgium and Greece, Appl. No. 30696/09, Grand Chamber, 21 January 2011 (2011) 53 EHRR 2 (EU directive on treatment of asylum seekers), paras 250-263. The Grand Chamber’s approach departs from that in NA v. UK where the section treated refused to consider the applicants’ submissions based on EU Directive 2004/83, also on asylum, because “its sole task under Art. 19 of the Convention is to ensure the observance of the engagements undertaken by the high contracting parties in the Convention and the Protocols thereto. It is not the Court’s task to apply directly the level of protection offered in other international instruments [. . .]”: Appl. No. 25904/07, 17 July 2008 (2009) 48 EHRR 15, para. 107. 48 Mendizabal v. France, Appl. No. 51431/99, 17 January 2006 (2010) 50 EHRR 50, para. 79 (it was key that the applicant was an EU national). 49 Pafitis v. Greece, Appl. No. 20323/92, 28 February 1998 (1999) 27 EHRR 566, para. 95. 50 Bosphorus v. Ireland, Appl. No. 45036/98, 20 June 2005 (2006) 42 EHRR 1, paras 150-157. 51 Ibid., paras 150-157.

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Penelope Nevill dependent, to some extent reflecting and reinforcing the ECtHR’s characterization of the EU as having a ‘supranational’ character.52 The difficulty of categorizing the EU has of course freed it from the constraints that entails. That is especially true of the ECJ, which both drives and benefits from the lack of conceptual clarity. This is no better illustrated than by its direct effect jurisprudence which is largely driven by context and subject matter rather than the categorization of legal act as decision, directive, regulation or international treaty. So, for example, in its GATT and WTO cases the ECJ has positioned the EU externally as a state-like entity. This ensures the EU’s ability as a WTO contracting party to settle disputes diplomatically, which would be compromised if WTO provisions had direct effect because individuals would be enabled to use judicial process to invoke breach of the WTO treaties against the EU institutions or Member states.53 The ECJ has taken a similar approach to the United Nations Law of the Sea Convention 1982 in the Intertanko decision.54 The applicants alleged the Union had assumed excessive legislative jurisdiction because the provisions of Directive 2005/35/EC went beyond the jurisdiction that the United Nations Convention on the Law of the Sea (hereinafter ‘UNCLOS’) confers on coastal states. The ECJ refused to proceed with the request to assess the validity of EU legislation against the provisions of UNCLOS because the origin of the action was an A ­ rticle 267 (ex-Art. 234) proceeding brought by private individuals on whom the relevant provisions of UNCLOS did not, according to the ECJ, confer rights: the rights in question lay with the flag state.55 The logic of UNCLOS therefore precluded a challenge by an individual instead of the flag state. This judgment runs along the same lines as the ECJ’s WTO jurisprudence because it holds open the EU’s freedom of action on the international plane to interpret or develop international law by way of its implementing legislation: states may consciously disregard an 52 Bosphorus, note 50, para. 150. A further dimension will be added if the EU becomes a party to the European Convention on Human Rights, as it now has competence to do under Art. 6(2) TEU. The ECJ, although a court created by a treaty under international law, will, as an organ of the EU, assume the same subordinate position as it has to the WTO Appellate Body and panels on matters that fall within the ECtHR’s jurisdiction, as seems to be anticipated by the third section of the ECtHR in Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij UA v. Netherlands, Appl. No. 13645/05, 20 January 2009, para. 18. See G de Burca, ‘The Road Not Taken: the European Union as a Global Human Rights Actor’, 105 AJL, 2011, pp. 649, 667-679. 53 The most well-known cases concerning GATT 1947 are Cases 21-24/72, International Fruit Company [1972] ECR 1219, paras 20-27, and Case C-280/93, Germany v. Council (Bananas) [1994] ECR I-4973, para. 109, Case C-469/93, Chiquita Italia [1995] ECR I-4533, paras 26-29. For a similar analysis of the 1994 WTO Agreements, see Case C-149/96, Portugal v. Council [1999] ECR I-8395, para. 46 and Case C-377/02, Van Parys [2005] ECR I-1465. 54 Case C-308/06 [2008] ECR I-4057. 55 Paras 59-65. The ECJ’s approach sidestepped, unconvincingly as a matter of its own jurisprudence, the underlying question of the EU’s competence to pass the measure in question. It is commonly understood that the individual and direct concern test for standing does not apply to the Art. 267 route of challenge for legality and that there is no requirement that the provision against which the legality of the secondary legislation is assessed should have ‘objective’ direct effect. If a member state had brought the challenge, it is difficult to see how the ECJ could have avoided answering the question as to the EU’s competence to legislate as it had.

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  15  The European Union as a Source of Public International Law international rule for any number of reasons, including as a way of making a new customary rule to replace an existing one or as subsequent practice re-interpreting a treaty provision.56 Whatever the correct answer is as to whether Directive 2005/35/EC breached international law, the EU, via the ECJ, was, like any other state, controlling the conferral of standing on individuals to raise a breach of international law ‘domestically’.57 An assessment of the EU’s compliance with international law by the ECJ was thus avoided. The Intertanko decision is as problematic as the WTO case law for the questions it raises as to the internal consistency of the ECJ’s positions on international law as part of the EU order, whether international law is part of the rule of law governing the EU institutions, and whether the ECJ is itself a (supra)national or an international court. The ECJ’s WTO and UNCLOS cases suggest that while the ECJ may pursue harmonisation, uniformity and compliance with the EU treaties and fundamental principles by member states (often invoking international law to do so, as in the principle of vertical direct effect of directives), the concern to secure the rule of law internally does not extend to securing the EU’s consistent compliance with external international norms. The value of the ECJ’s judgments as a subsidiary source of rules and principles of general international law or equivalently worded treaty provisions that might inform WTO or UNCLOS jurisprudence is correspondingly compromised. It is striking that where the EU exercises real ‘soft’ power (economically)58 or territorial control (maritime areas)59 through its member states, the ECJ eschews enforcement by direct effect of multilateral rules of international law in order to protect the EU’s ability to pursue EU interests on the international level, i.e. to behave like a state. The primary contribution of the EU to the development of WTO law has been as an actor alongside states: it generates much valuable Panel and Appellate Body jurisprudence by being sued and initiating proceedings.

15.3 The EU as Source of Practice The EU’s resistance (both literally and figuratively) to classification as any particular type of legal entity is also evident in the recent work undertaken by the International Law Commission (hereinafter ‘ILC’) on the responsibility of international organisations for ­internationally wrongful acts. This is an area of international law to which one might

56 E.g., the UK’s attempt to develop the concept of humanitarian intervention under the UN Charter in 1999 in the context of the NATO military intervention in Kosovo (see Brownlie 2008, above n. 4, p. 743, note 42 and accompanying text. 57 Another plausible way of characterising the ECJ’s position is that it was acting as an international tribunal under UNCLOS, before which a private individual would not have standing. As to the possibility of the ECJ acting as international tribunal under Art. 288 of UNCLOS, it asserts jurisdiction over EU member state compliance: see Case C-459/03 Commission v. Ireland (Mox Plant) [2006] ECR I-4635, paras 120-133. 58 See e.g., Andreatta 2005, above n. 7, Ch. 2, p. 35. 59 Via its exclusive prescriptive competence over marine conservation and fisheries (TEU Art. 3(1)(d)).

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Penelope Nevill expect the EU – with its developed institutional structure and international legal personality – to make a particular contribution. However, the commentaries to the ILC’s 2011 draft articles60 make only ten references to EU practice in 104 pages61 and note in 2 others that certain statements made by the EU on a question of responsibility are not clear enough for the ILC to use as an example of practice on the point in question.62 The ILC cites EU sources to support articles intended for general application to all international organisations, but also acknowledges the EU as a special case that may fall outside general provisions.63 Indeed, the European Commission,64 along with various writers,65 urged 60 Report on the word of its sixty-third session (26 April to 3 June and 4 July to 12 August 2011), General ­Assembly Official Records, Sixty-sixth session, Supplement No. 10 (A/66/10 and Add.1), at 50ff. 61 Para. (14) to Art. 2, p. 75; p. 110, para. (3) to Art. 20, ‘Consent’; p. 122, para. (2), commentary to Art. 31, “Reparation”; p. 134, para. (7), commentary to art. 42, ‘Particular consequences of a serious breach of an obligation under this Chapter’; pp. 138-139, para. (6), commentary to art. 45, ‘Admissibility of claims’; p. 142, para. (1), commentary to Art. 48, ‘Responsibility of an international organization and one or more States or international organizations’; p. 145, paras (8)- (9), commentary to Art. 49, ‘Invocation of responsibility by a State or an international organization other than an injured State or international organization’ (para. (8)); p. 148, para. (4), commentary to Art. 51, ‘Object and limits of countermeasures’; pp. 150-151, para. (7), commentary to Art. 52, ‘Conditions for taking countermeasures by members of an international organization’; p. 160, para. (4), commentary to Art. 61, ‘Circumvention of international obligations of a State member of an international organization’; p. 163, note 356, commentary to Art. 62, ‘Responsibility of a State member of an international organization for an internationally wrongful act of that organization’; para. (4), p. 101. 62 For example, according to the ILC, it is not clear from the EC’s statement in its oral pleading before a WTO panel in European Communities – Customs Classification of Certain Computer Equipment (that the EC was “ready to assume the entire international responsibility for all measures in the area of tariff concessions, whether the measure complained about has been taken at EC level or the level of Member States”, unpublished document, cited at n. 146, p. 95; whether the EC is acknowledging attribution or responsibility: p. 95, para. (3), commentary to Art. 9, Conduct acknowledged and adopted by an international organization as its own (when it would not otherwise be attributable). 63 Note 60, pp. 167-169, commentary to Art. 64, ‘Lex specialis’. In the context of question whether all the obligations arising from rules of the organization are to be considered as international obligations, the ILC notes that there is ‘support in practice’ for the view that an organization with a high degree of integration is a special case, giving the EU as an example p. 97, para. (5), fn 157, commentary to Art. 10 ‘Existence of a breach of an international organization’). However, the ILC does not go so far as to endorse the European Commission’s view that relations between EU member states and the EU are wholly outside international law. 64 The European Commission submitted several comments and observations to the ILC on general issues and drafts of specific provisions, asserting the EU’s sui generis nature (‘Comments and observations received from international organizations’, A/CN.4/556, 12 May 2005, pp. 5-6, A/CN.4/568. Add. 1, 12 May 2006, pp. 1617, A/CN.4/637, 14 February 2011, pp. 7-8, 19-21, 37-38) and suggesting that the articles specifically reflect this (A/CN.4/556, 12 May 2005, p. 6). In one observation the EU Commission goes suggests that there is a ‘strong need’ for the articles to apportion responsibility to the EU for breach of its treaties with third states or otherwise its member states and third states “might decide on their own about the international responsibility of the [EU]” (Comments and observations received from international organizations, 1 May 2007, A/CN.4/582, p 23). States, including EU member states appear to have made few comments on the EU. 65 See those cited in commentary to Art. 53. For an advocate of a specialist rule, see Hoffmeister 2010, above n. 37. However, the complexity of his formulation and the effect he suggests that a lack of proper attention to the rule could have on admissibility and merits might render acceptance of such a rule unattractive and left, for the moment, to be pursued on a case by case basis or by recognition over a period of time – “the traditional procedure by which the law is adjusted to fact” (R. Jennings, in R. Jenning & A. Watts (Eds.), Oppenheim’s International Law, 8th edn, Vol 1, 1994, p. 573). One difficulty for third states is that the organization’s internal rules allocating competence are far from clear, as the POPS case shows (see text accompanying nn 143-146).

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  15  The European Union as a Source of Public International Law the ILC to treat the EU as a special case, arguing its ‘specialness’ takes it outside the draft provisions on attribution and that where the EU member states are implementing binding EU acts the conduct is attributable to the EU.66 It has been suggested that customary rules specific to the EU should be developed.67 From the perspective of non-EU states it is difficult to see why they should or would agree that the EU should be responsible in place of its member states when there is no reciprocity in the position taken by individual EU member states.68 For example, in the 1998 Jurisdiction Case (Spain v. Canada),69 Spain refused to accept Canada’s a­ rgument that a dispute over Canada’s interception, boarding, seizure and legal action against a Spanish fishing vessel and its Spanish crew had been resolved by Canada’s compliance with a settlement agreed in an exchange of notes with the European Community.70 The ILC’s report does not suggest what ought to happen in this situation. On the question of attribution, it merely explains that a WTO panel has been prepared to accept that member states’ organs act as de facto EU organs for which the EU is responsible, whereas the ECtHR has not. It leaves open the question in draft Article 63 of whether a lex specialis may exist. It might be observed once more that, as with the EU’s jurisprudence on direct effect of international law, there appears to be a direct correlation between power and law formation: it is where the EU has significant “soft power” in its own right as an international economic actor that the argument that conduct is attributable to the EU, and that it is responsible for it, has been accepted by an international judicial body and (according to the EU) by most non-EU states.71 And in one of the areas of international law where the ECJ declines to adjudicate on the EU’s compliance.

66 In saying this, it should be noted that the impact of the ILC’s draft articles is itself an open question. The introductory general commentary observes that there was a limited availability of ‘pertinent practice’ as states and organizations were unwilling to disclose it. This has meant the articles “move the boundary between codification and progressive development [of the law] in the direction of the latter” (above note 118, para. 5, pp. 67-68). 67 As suggested by M. Ličková, ‘European Exceptionalism in International Law’, 19 EJIL, 2008, p. 463. 68 Quite apart from the question of the EU’s capacity to make reparations. Given the EU’s limited sources of independent revenue and dependence on annual contributions by member states, I would be doubtful that a non-EU state would be prepared to accept the principle that the EU’s responsibility under international law would absolve the member states of responsibility – or at least a subsidiary responsibility – even in areas where matters are commonly resolved between the EU and non-EU states directly. 69 ICJ Reports 1998, p. 3, 70 Paras 19-27. 71 The European Commission says in is submissions to the ILC that “most [WTO] disputes are entirely directed and enforced against the European Union only” (A/CN.4.637, 14 February 2011, p 34). Although the EEC never became a party to the GATT 1947, the economic power generated by the common market meant that third states actively sought EEC involvement in the GATT rounds (see e.g., A. Lauring Knudsen, ‘European Integration in the Image and Shadow of Agriculture’, in: D. Dinan (Ed.), Origins and Evolution of the European Union, Oxford University Press 2006, pp. 191, at pp. 204-205). The EEC/EC through its institutions appeared and negotiated in the tariff rounds and concluded agreements under the auspices of GATT (Cases 21-24/72 International Fruit Company v. Produktschap voor Groenten en Fruit [1972] ECR 1219, para. 17), including the Uruguay Round which led of the 1994 WTO Agreements, to which the EC is a party (WTO Agreement, Art. IX:1).

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Penelope Nevill It is precisely this relationship between power and international law-making that raises the apprehensions of non-EU states when the EU claims standing as a special international actor independent of its member states. These are not new. During the UNCLOS negotiations in the 1970s and early 1980s, the European Economic Community (hereinafter ‘EEC’) was accorded observer status and its member states insisted that provision be made for the EEC to become a contracting party.72 This was resisted by third states, for important political reasons: Above all, anxiety was felt lest certain European States, as actual or potential members of the Community, would try and take advantage of the benefits accruing from the participation of the Community in the Convention [. . .] while simultaneously avoiding the obligations of the Convention [. . .]by the simple expedient of not becoming parties to the Convention.73 Furthermore, “[q]uestions were also raised whether and to what extent the members of the Community had transferred to the Community their powers and jurisdiction [. . .]”.74 After much discussion, provision was made for international organizations to become contracting parties in Article 305(1)(f) if they and their member states complied with the requirements of Annex IX.75 Annex IX met concerns about dual representation and responsibility for infringement, including in cases of lack of clarity in the allocation of competences,76 by affirming that participation would in “no case entail an increase of the representation to which its member States which are States parties would otherwise be entitled, including rights in decision-making” (Art. 4(4)), and that failure to respond to requests by third States for information as to the division of competences or the provision of contradictory information would result in joint and several liability” (Art. 5).77 Annex IX has been labelled a notorious example of an international treaty failing to account for the EU’s special nature as a supranational organization,78 but this criticism completely fails to view the situation from the perspective of third states. The same anxieties resurfaced 40 years later during the negotiations for enhanced EU participation in the work of the UN General Assembly, sought by the EU after the Treaty of Lisbon came into force.79 The General Assembly finally adopted Resolution 65/276 in 72 M.H. Nordquist (Ed.), United Nations Convention on the Law of the Sea 1982: A Commentary, Volume V, Martinus Nijhoff Publishers 1989, para. 305.12. 73 Ibid. 74 Ibid. 75 Ibid., paras 305.11-305.19. 76 Listed by Conference III President Koh at the 10th session (1981): note 72, para. 305.16. 77 For an analysis of Annex IX, see Norquist 1989, note 72, pp. 445-464. 78 McGoldrick 1997, above n. 3. 79 The EU and its predecessors had had observer status since 1974 (General Assembly Resolution 3208 (XXIX) of 11 October 1974). EU positions were submitted to the UNGA through the representative of the member state then holding the EU Presidency.

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  15  The European Union as a Source of Public International Law May 2011 on the Participation of the European Union in the work of the United Nations,80 by a vote of 180 in favour, none against and with two abstentions.81 The voting record might indicate overwhelming support for the EU. The history of the resolution and the debates preceding the vote tell a different story. An attempt in September 2010 to secure participant status was unsuccessful. The 2011 resolution was only passed after considerable lobbying by the EU and its member states and a redraft which assured third states that organisations of other states might in time gain similar status and affirmed the EU would not be an extra voice additional to those of its member states. The Bahamas voiced the concern that the resolution would marginalize the position of small states in the General Assembly ‘and beyond’ by negatively impacting the negotiating dynamics.82 Nauru highlighted the ‘serious risk’ that the Resolution would “change the ­nature of the United Nations, to the detriment of small States, which do not enjoy the political and economic influence of large developed countries”.83 By giving the 27 EU member states another voice in debate it would privilege them above all others: For small States [. . .] this is a major concern, given our modest ability to ­influence international affairs that have profound implications for our country. The discussions that we have in this house are already dominated by the issues of concern to countries with greater influence. The adoption of this draft resolution would risk further entrenching this position [. . .].84 These submissions echo the critique of public international law as weighted in favour of rich, powerful states. While the EU’s self-understanding is of itself as a normative civilian power promoting universal values in its internal and external actions,85 viewed from the outside it is a collection of rich, powerful states promoting their own interests collectively

80 A/RES/65/276, 10 May 2011. 81 Syria and Zimbabwe. See General Assembly GA/11079/Rev. 1, Sixty-fifth General Assembly Plenary, 88th meeting, 3 May 2011. Ten states were absent (Azerbaijan, Cote d’Ivoire, Kirbati, Nauru, Rwanda, Somalia, Sri Lanka, Vanuatu, Venezuela). 82 General Assembly, Sixty-fifth session, 88th Plenary meeting, 3 May 2011, A/65/PV. 88, p. 5 (Bahamas). See also, pp. 7-8 (Zimbabwe), p. 13 (Venezuela). 83 Ibid., p. 6. 84 Ibid., pp. 6-7. Indeed, the ability and desirability of the EU projecting itself as an actor independent of its member states is highlighted by many commentators (see e.g., U. Khaliq, Ethical Dimensions of the ­Foreign Policy of the European Union: A Legal Appraisal, 2008, p. 454; F. Hoffmeister, ‘The Contribution of EU ­Practice to International Law’, in: M. Cremona (Ed.), Developments in EU External Relations Law, Collected Courses of the Academy of European Law, Oxford, New York, Oxford University Press 2008, p. 37, at p. 125) and failure of the rest of the world to recognize this has been criticized (Brinkhorst, cited in McGoldrick 1997, above n. 3, p. 203). 85 As is well known: see e.g., R. Hollis, ‘No friend of democratization: Europe’s role in the genesis of the “Arab Spring” ’, 88 International Affairs, 2012, p. 81; B. Simms, ‘Towards a mighty superpower: how to create a democratic European superpower’, 88 International Affairs, 2012, p. 47, at p. 56.

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Penelope Nevill and sometimes individually. Those states have not relinquished that position by conferring sovereign powers on the EU. It is thus hardly surprising that third states wish to limit the EU’s legal capacity to act as an additional source of law and policy through the one UN institution with universal membership, operating on a principle of ‘one state one vote’. The problem of dual participation by the EU and member states in other international treaties is in principle addressed by the internal allocation of competences between them under the treaty in question and enforcement of that allocation through the ECJ. But this allocation is often unclear, as illustrated by the dispute which arose between the Commission and Sweden over allocation of competences under the Convention on Persistent Organic Pollutants 2001, a mixed treaty in case C-246/07 Commission v. Sweden (the POPS case).86 Not only was allocation of competence not apparent on the face of the relevant treaties, but the ECJ’s approach can work against the development of international law: as a result of the POPS case EU member states are precluded from unilaterally proposing chemicals for listing under the Convention.87 The fettering of member states’ ability to act unilaterally under mixed treaties works against the development of international law insofar as it can lead to a lower standard of protection under international environmental treaties, the closing-off or watering-down of international debate under environmental treaty regimes, and the prevention of member states from assuming treaty obligations towards third states.88 The ECJ’s reasoning is, however, wholly concerned with the internal constitution, convenient internal legislative arrangements and the political strength of the EU – in a ‘state-like’ capacity – relative to its member states on the international stage.89

15.4 Conclusion Aside from investment arbitration tribunals and a small number of ECtHR decisions, ­international courts and tribunals do not use ECJ decisions as a subsidiary source under Article 38(1)(d) of the ICJ Statute even when invited to do so. A review of the ILC’s project 86 Case C-246/07, Commission v. Sweden [2010] ECR I-3332. 87 Art. 25 of the Stockholm Convention makes provision for regional economic organizations to become parties but stipulates that the instrument of ratification must set out the allocation of competences between the organization and its member states and that any voting rights conferred on the organization replace its member states rights under the Convention are limited to the number of its parties who are also parties to the Convention. 88 See also the critique of the EU’s approach in negotiations of the 1995 Straddling Stocks Agreement, in D. McGoldrick, 1997, above n. 3, pp. 203-204. For a similar criticism from the EU perspective, see A. Dashwood on AG Kokott’s Opinion of 26 March 2009 in Case C-13/07, Commission v. Council (Vietnam), in: Wyatt & ­Dashwood’s European Union Law, 6th edn, Hart Publishing 2010, pp. 935-936. 89 “Such a situation is likely to compromise the principle of unity in international representation of the Union and its Member States and weaken their negotiating power with regard to the other parties to the Convention concerned” (para. 104. See also, paras 94-103). See, Advocate General Maduro’s Opinion in Case C-246/07, Commission v. Sweden [2010] ECR I-3317 (the ‘POPS case’), paras 43-45.

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  15  The European Union as a Source of Public International Law on the responsibility of international organizations shows the EU has contributed surprisingly little to this area of international law. It is suggested that this reflects ambivalence over the EU’s characterisation, led by the EU institutions themselves, particularly in areas where the EU has real soft power and territorial control: that is, the capacity to behave like a state. The combination of the EU’s soft power with its assertions of specialness also explains why third states deal with the EU90 but are wary of receiving the EU as an international actor or lawmaker on the terms it seeks.91 One fundamental problem is the lack of reciprocity entailed by recognition of the EU on a separate and equal basis with its member states: third states do not have an additional voice or vote, and there is no guarantee that treating with the EU will avoid separate responsibility to its member states. The member states and EU institutions have been unwilling or unable to resolve this. Instead the solution seems to be to seek recognition and acceptance of the ambivalent state of affairs from third states in treaty provisions and rules on participation, possibly with a view to developing customary rules specific to the EU. But the effectiveness of this solution depends solely on whether third states can be persuaded to agree to these instruments. This turns on the EU’s soft power. Thus an analysis of the EU’s contribution as a source of international law – whether as a source of practice or a subsidiary source through the jurisprudence of its courts – casts doubt on whether the EU really is the herald of a post-Westphalian new world order. Rather, we appear to be looking at a recasting of the relationship of power to law in the old.

90 And may accept disconnection clauses: Ličková 2008, above n. 67. 91 Instead they prefer provisions worded in terms which are generic to international organisations.

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16

Gunpowder for Court Battles: Access to Institution Documents in the Administrative Procedure, under Regulation 1049/2001, before the EU Courts and National Courts

Viktor Łuszcz* 16.1 Introduction Gaining access to documents held by the institutions of the European Union (herein­ after ‘EU’) is essential for successful litigation in a variety of situations. It is clearly indis­ pensable to obtain at least some of the documents on the basis of which the institution adopted a decision adverse to a natural or legal person when the latter challenges that decision ­before the General Court. There are other instances where institution documents constitute important material used in the context of civil or criminal proceedings before national courts. Access to institution documents may be obtained under various regimes. First, institu­ tions are required to grant access to certain documents already in the framework of the administrative procedure. This is done either under specific rules governing the relevant procedure or by virtue of the general principle of respect for the rights of the defence. However, as a rule, only the main party in the administrative procedure is entitled to gain access to documents under this regime, that is, the party whose legal position is directly affected by the act adopted at the end of the procedure. It follows that parties not partici­ pating in the administrative procedure or not being its main subject often need to resort to other avenues. Therefore, the second possibility is to seek public access to documents ­under Regulation 1049/2001,1 either for the purposes of a case brought before the EU *

LL.M. (College of Europe, Bruges), legal secretary at the General Court of the EU, senior advisor seconded to the Ministry of Foreign Affairs of Hungary during the Hungarian EU Presidency. The author would like to thank Milan Kristof and Guy Nickols for comments on earlier drafts. The views expressed in this article are merely the personal opinion of the author and cannot be considered as reflecting an official or an internal position of the General Court. This article contains some sections partially overlapping with another work published by the same author in Europäische Zeitschrift für Wirtschaftsrecht (EuZW) 13/2012, pp. 488-494. 1 EP regulation of 30 May 2001, OJ L145/43, No. 1049/2001, regarding public access to European Parliament, Council and Commission documents.

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Viktor Łuszcz Courts or for the purposes of proceedings before national courts. Thirdly, it is also pos­ sible to obtain certain documents in proceedings before the EU Courts, that is, by way of proposing that the latter invite or order an institution to submit copies of documents re­ lating to the case.2 Fourthly, a similar possibility may exist in proceedings before national courts. The latter may request the production of institution documents by virtue of the principle of sincere cooperation. The primary purpose of this article is to examine each of those regimes and compare possible outcomes in a number of situations. For (prospective) litigants seeking ­access to documents, such an overview might be helpful in finding the most effective way of obtaining access, which makes it possible to avoid multiple applications or to challenge a refusal decision adopted under Regulation 1049/2001 where broader access could have been obtained under another regime. This, in turn, might sometimes spare the ­institutions the effort of justifying refusal decisions and defending them before the General Court. Although the detailed presentation of the vast case law on access to the file and on the application of Regulation 1049/2001 is clearly beyond the scope of this article, it does examine most cases related to the specific situation where documents are requested for the purposes of Court proceedings and, in particular, those judgments which shed some light on the interaction between the various regimes governing access. Finally, the analysis below is put into the context of the ongoing review of Regulation 1049/2001 and some suggestions are provided as to how the rules governing access could be streamlined to the benefit of all parties involved through some minor legislative changes.

16.2 Access to Documents in the Administrative Procedure In most procedures, institutions have an obligation to disclose some or all the documents in the administrative file, or at least provide the information contained therein prior to the adoption of the final act closing the procedure. Such access is normally granted to the party who is the main subject of the administrative procedure. This is especially true in proceedings that may result in sanctions or pecuniary measures adversely affecting that party. Although the initial purpose of making information available to the party in the­ ­administrative procedure is to enable it to defend itself in that procedure, such informa­ tion is obviously widely relied on before the EU Courts, should the party decide to chal­ lenge the act in question.

2 Art. 45 of the Rules of Procedure of the Court of Justice (hereinafter ‘CJEU RoP’); Arts. 64 to 66 of the Rules of Procedure of the General Court (hereinafter GCEU RoP).

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  16  Gunpowder for Court Battles 16.2.1   Rules Governing Particular Procedures The extent of the access that may be obtained and the applicable rules vary depending on the procedure concerned. For instance, the broadest access is arguably granted in antitrust proceedings, where access to all the documents in the case file – except for the business secrets of other undertakings – is automatically granted, that is, without any request being necessary (access to the file).3 More limited access is given in the context of antidumping proceedings. There is no automatic access to the file, although the parties concerned may request disclosure of the details underlying the essential facts and considerations on the basis of which the institutions intend to impose antidumping duties (disclosure).4 Appli­ cants often argue that the principles governing access to documents developed in a given field should be generally applicable. The Court of Justice and the General Court (herein­ after ‘the Courts’ or the ‘EU Courts’) do sometimes consider that field-specific case law can be transposed to another type of procedure (see, i.e. Eyckeler and Malt v. Commission,5 where case law relating to antitrust proceedings was applied to customs proceedings). Nonetheless, the General Court refused to consider that rules on access to the file in anti­ trust proceedings may be applied, by analogy, to OLAF investigations6 or to the procedure for reviewing state aid.7

16.2.2   General Principles – The Rights of the Defence and the Right to Be Heard Despite the divergence in rules governing access to documents in particular procedures, the underlying rationale is the same in all fields. Namely, the lack of information concern­ ing the documents which serve as a basis for the intended act would clearly impair the party’s ability to defend itself effectively in the procedure before the institution in question.

3 Art. 27(2) of Council Regulation 1/2003, OJ L1/1 on the implementation of the rules on competition laid down in Arts. [101] and [102] of the Treaty. See also N. Coutrelis & V. Giacobbo, ‘La pratique de l’accès au dossier en droit communautaire de la concurrence: Entre droit de la défense et confidentialité’, 2 Concurrences, 2006, pp. 66-78. 4 Art. 20 of Council Regulation 384/96, OJ L56/1 on protection against dumped imports from countries not members of the European Community. 5 Case T-42/96, Eyckeler & Malt v. Commission [1998] ECR II-401. 6 Case T-259/03, Nikolaou v. Commission, not published in the ECR, paras 122 and 252. For a detailed com­ parison of legislation and the case law relating to antitrust and OLAF proceedings, see S. White, ‘Rights of the defence in administrative investigations: access to the file in EC investigations’, 2 Review of European Administrative Law 1, 2009, pp. 57-69. 7 Case T-198/01, Technische Glaswerke Ilmenau v. Commission [2004] ECR II-2717, paras 193-194, not ­annulled on these points on appeal.

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Viktor Łuszcz Therefore, the right to have access to documents in the administrative procedure has been construed by the Courts as part of the rights of the defence, as a right necessary for the proper exercise of the right to be heard.8, 9 Furthermore, insofar as respect for the rights of the defence is a general principle of EU law, the subjects of an administrative procedure are entitled to obtain access to documents on which the act adversely affecting their legal position is based. The latter holds true even where there are no particular provisions gov­ erning the procedure in question or where there are no particular provisions foreseeing access to documents in that field.10 However, the general principle of the protection of the rights of the defence does not imply that the institution in question is required to grant spontaneously access to the documents in its file. It is only upon the request of the party concerned that the institution is required to provide access to all non-confidential official documents concerning the measure at issue.11 The identity of the economic operator considered to be the main subject of the procedure (or that of the person against whom the procedure is conducted) is of crucial importance, insofar as it is only that person who is entitled to obtain documents during the admin­ istrative procedure on the basis of the protection of the rights of the defence. That point is exceptionally well illustrated by state aid proceedings, where only the member state granting aid is entitled to obtain access to the case file in the context of the administrative procedure. Under Article 6(2) of Regulation 659/1999,12 the Commission cannot, without infringing the rights of the defence, use in its final decision information on which that member state was not afforded an opportunity to comment. However, none of the provi­ sions governing the procedure for reviewing state aid reserves among the parties con­ cerned a special role for the recipient of aid – notwithstanding its obligation to reimburse non-authorised aid, should it eventually be qualified by the Commission as incompat­ ible with the common market. The Courts have held that the right to access the case file

8 See cartel Cases T-10/92, T-11/92, T-12/92 and T-15/92 Cimenteries CBR and Others v. Commission [1992] ECR II-2667, para. 38; C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v. Commission [2004] ECR I-123, para. 68 and the case law cited. 9 For a detailed analysis of the right to be heard in procedures involving both EU and national authorities, see C. Eckes & J. Mendes, ‘The right to be heard in composite administrative procedures: lost in between protec­ tion?’, 5 European Law Review, 2011, pp. 651-670. 10 For application in a customs case, see Case T-42/96, Eyckeler & Malt v. Commission [1998] II-401, paras 78-80 and in the context of fund freezing measures see Case T-390/08, Bank Melli Iran v. Council [2009] ECR II3967, para. 91. 11 Case T-205/99, Hyper v. Commission [2002] ECR II-3141, paras 63 to 65; T-390/08 Bank Melli Iran v. Council [2009] ECR II-03967, para. 97. 12 Council Regulation 659/1999 of 22 March 1999, OJ L83/1, laying down detailed rules for the application of Art. [88] of the EC Treaty.

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  16  Gunpowder for Court Battles claimed by the recipient of aid could not be deduced from the rights of the defence, since the procedure for reviewing state aid is not a procedure initiated ‘against’ the recipient, thereby implying that the recipient cannot rely on those rights.13 The general rule is that access to documents must be granted before the adoption of the act adversely affecting the position of the main subject of the procedure. Thus, the latter is able to express his views on the documents taken into account by the institution. Failure to observe that requirement on the part of the institution may lead to the annulment of the act in question, for instance, on the ground that the institution breached essential procedural requirements.14 However, there are certain procedures where the element of surprise is of great importance for the effectiveness of the pecuniary measures. Such is the case in procedures leading up to acts prescribing the freezing of funds of natural or legal persons with a view to combating terrorism or nuclear proliferation.15 The Courts have ruled in this context that the institutions are not required to disclose the evidence adduced against the entity concerned before the adoption of the initial decision to freeze funds, because prior disclosure could jeopardize the effectiveness of the measure. The rights of the defence are respected if the evidence is notified to them either concomitantly with or as soon as possible after the adoption of the initial decision to freeze funds,16 as such disclosure still allows the entity concerned to rely on the documents when requesting the Council to reconsider its decision or when challenging the initial decision ­before the Gen­ eral Court. Penalties for non-disclosure were an interesting issue as, clearly, subsequent communication of the evidence does not form part of the adopted act. Interestingly, in Kadi and Al Barakaat v. Council, the Court of Justice held that the lack of disclosure of the evidence after the adoption of the initial fund-freezing measure could still affect the valid­ ity of that measure and subsequently annulled it in respect of the a­ pplicants. It allowed, however, three months for the Council to remedy the breach of the rights of the defence, by maintaining the effect of the act during that period.17 As regards acts maintaining the effect of the initial fund-freezing measure, where urgency is not established, observance of the right to a fair hearing requires that new evidence justifying the prolongation of the 13 Case C-74/00 P and C-75/00 P, Falck and Acciaierie di Bolzano v. Commission [2002] ECR I-7869, paras 81-83; Case T-198/01, Technische Glaswerke Ilmenau v. Commission [2004] ECR II-2717, paras 193-194, not annulled on these points on appeal. 14 See e.g., the annulment of a customs decision in Case T-42/96, Eyckeler & Malt v. Commission [1998] ECR II-401, paras 80-88. 15 See e.g., Council Common Position 2001/930/CFSP [2001] OJ L344/90 on combating terrorism; Council Common Position 2007/140/CFSP of 27 February 2007 [2007] OJ L61/49 concerning restrictive measures against Iran. 16 Case T-228/02, Organisation des Modjahedines du peuple d’Iran v. Council [2006] ECR II-4665, para. 129; C-402/05 P and C-415/05 P, Kadi and Al Barakaat v. Council [2008] ECR I-6351, paras 336-339. 17 Case C-402/05 P and C-415/05 P, Kadi and Al Barakaat v. Council [2008] ECR I-6351, para. 375.

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Viktor Łuszcz effect be communicated to the person concerned and a hearing be held prior to the adop­ tion of that act.18 16.3 Public Access to Documents under Regulation 1049/2001 Unlike rules governing access to documents in the administrative procedure, which usu­ ally benefit only the main subject of the procedure, provisions relating to public access to institution documents apply equally to all natural or legal persons, that is, irrespective of the actual participation or role in the procedure before the institution and, impor­ tantly, of the intended use of the documents. Rules on public access are not specifically designed to allow parties concerned to obtain documents useful for litigation (although they are often used to this effect), but rather reflect the more general ambition of ren­ dering EU legislation and decision-making more transparent.19 They consist of both primary and secondary Union law provisions. First, Article 15(3) of the Treaty on the Functioning of the European Union (hereinafter “TFEU”) and Articles 42 and 52 of the Charter of the Fundamental Rights of the EU provide in essence that any citizen of the Union, and any natural or legal person residing or having its registered office in a member state, shall have a right of access to documents of the Union’s institutions, bod­ ies, offices and agencies, whatever their medium, subject to certain limitations in order to protect other freedoms. Second, Regulation 1049/2001 on public access to European Parliament, Council and Commission documents was adopted in order to flesh out the general rule contained in Article 255 of the Treaty establishing the European Commu­ nity (hereinafter ‘TEC’) (now Art. 15(3) TFEU). In 2008, the Commission submitted a legislative proposal to recast the Regulation.20 The proposed amendment which would grant a role to field-specific procedural rules as regards the application of the Regulation will be extensively discussed below.21 In many cases, parties concerned request documents in order to be better placed to ­represent their interests in a procedure conducted by an institution or in order to rely on those documents when challenging the final act. In any event, requesting access to documents under Regulation 1049/2001 is a procedure entirely dissociated from the main administrative procedure conducted by the institution, even if the party concerned 18 T-228/02 Organisation des Modjahedines du peuple d’Iran v. Council [2006] ECR II-4665, para. 137. 19 Recitals 2-3 of Regulation 1049/2001. See also, C-64/05, Sweden v. Commission [2007] ECR I-11389, paras 54-55. 20 COM(2008) 229 final. It must be noted that negotiations on the Commission proposal have been shelved since 2009 by reason of diverging concepts of review supported by various groups of member states. For a brief description of the current situation, see P. Leino, ‘Just a little sunshine in the rain: The 2010 case law of the European Court of Justice on access to documents’, 48 CML Rev, 2011, pp. 1215-1252. 21 Other aspects of the Commission proposal are largely covered by Leino 2011 and I. Harden ‘The revision of Regulation 1049/2001 on public access to documents’, European Public Law, 2, 2009, pp. 239-256.

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  16  Gunpowder for Court Battles participates in it. Therefore, the decision refusing access on the basis of Regulation 1049/2001 is a separate reviewable act under Article 267 TFEU.

16.3.1   Basic Principles of Regulation 1049/2001 The regulation provides that any document held by an institution22 – whether drawn up by the institution or received by and in its possession – is public, unless at least one of the exceptions set out in Article 4 of that regulation applies.23 Importantly, Article 6(1) of Regulation 1049/2001 provides that a person requesting access is not required to justify his request and therefore does not have to demonstrate any i­ nterest in disclosure. A regrettable consequence of that rule is that different kinds of justification which do not qualify as a ‘public interest’ (see Section 16.3.2.3) may not be taken into a­ ccount when deciding on the extent of the access granted. This implies that a request of documents for journalistic purposes24 is theoretically treated in the same way as a request with a view to obtaining documents necessary for litigation, accompanied by the applicant’s undertaking to handle the documents confidentially.25 It was only in two – rather specific and isolated – cases where considerations based on the particular interest of the applicant were still let in ‘through the backdoor’. In Verein für Konsumenteninformation v. Commission, the Com­ mission refused access by referring to the unbearable workload caused by the examination of the requested documents constituting an extremely voluminous cartel file. The General Court annulled the Commission decision to a large extent on the ground that the Commis­ sion did not explore affordable ways of granting access to at least some documents from its case file which could have increased the applicant’s chances of obtaining damages from cartel members before a national court.26 The other case where the Court of Justice hinted at the relevance of the particular interest of the applicant in obtaining institution documents is Bavarian Lager v. Commission,27 examined below in Section 16.3.2.1. 22 Art. 1(a) of Regulation 1049/2001 provides that under the term ‘institution’ only the European Parliament, the Commission and the Council are to be understood. However, due to the entry into force of the Lisbon Treaty, and Art. 15(3) TFEU supplanting Art. 255 TEC, the Commission proposed (COM(2011) 137 final) to define the term “institution” as covering also all bodies, offices and agencies of the European Union, ­including the European External Action Service. Moreover, according to the proposal, the regulation will also apply to documents of the Court of Justice, the European Central Bank and the European Investment Bank as far as they concern the administrative tasks of these institutions. 23 For an overview of the system set up by Regulation 1049/2001, see B. Driessen, ‘Public access to EU institu­ tion documents: An introduction’, 3 Global Trade and Customs Journal, 2008, pp. 329-335 and D. Adamski, “How wide is ‘the widest possible’? Judicial interpretation of the exceptions to the right of access to official documents revisited”, 46 CML Rev, 2009, pp. 521-549. 24 See e.g., Case T-36/04, Association de la presse internationale (API) v. Commission [2007] ECR II-3201. 25 Case T-2/03, Verein für Konsumenteninformation v. Commission [2005] ECR II-1121. 26 Ibid., paras 114, 126 and 129. 27 Case C-28/08 P Bavarian Lager v. Commission [2010] not yet published.

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Viktor Łuszcz 16.3.2   Legality of the Refusal to Grant Access Regulation 1049/2001 foresees two types of obstacles to disclosure. First, Article 4(1) sets out the mandatory exceptions to the rule that all institution documents are public. In these cases, the institutions are required to refuse access if disclosure would undermine the interests protected by that provision. Second, Article 4(2) and (3) contains a set of discre­ tionary exceptions,28 that is to say, exceptions which prevent access only where there is no overriding public interest justifying disclosure. The three main grounds for total or par­ tial refusals, accounting for more than two thirds of negative decisions, are discretionary exceptions, concerning the protection: (1) of the purpose of inspections, investigations, audits; (2) of the institutions’ decision-making process; and (3) of commercial interests of third parties.29 The Courts have established a set of general rules which the institutions need to comply with when refusing access to requested documents on the basis of the exceptions set out in Article 4 of Regulation 1049/2001. It is settled case law that in view of the objectives pur­ sued by Regulation 1049/2001, in particular the aim of guaranteeing the widest possible access to institution documents, the exceptions laid down in Article 4 of that regulation must be interpreted and applied strictly.30 The Courts have also drawn up the basic requirements for what is considered to consti­ tute sufficient reasoning in the decision refusing access. First, it must be apparent from the decision that the institution in question assessed whether the requested documents came within the scope of the exception concerned. Secondly, the institution has to show that the disclosure might specifically and actually undermine the interest protected by that exception. The risk of the protected interest being harmed must be reasonably fore­ seeable and not purely hypothetical. Thirdly, the institution is also required to examine whether the need for protection applies to the requested documents in their entirety.31 Consequently, the institution has to carry out a concrete, individual examination of each document, also because only such an examination can enable the institution to assess the possibility of granting the applicant partial access.32

28 See J. Heliskoski & P. Leino, ‘Darkness at the break of noon: the case law on regulation No. 1049/2001 on access to documents’, 43 CML Rev, 2006, pp. 735-781 at p. 765. 29 COM(2010)351 final, Report from the Commission on the application in 2009 of Regulation (EC) No. 1049/2001. 30 Joined Cases C-39/05 P and C-52/05 P, Sweden and Turco v. Council [2008] ECR I-4723, para. 36; Joined cases T-391/03 and T-70/04, Franchet and Byk v. Commission [2006] ECR II-2023, para. 84. 31 Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v. Council [2008] ECR I-4723, para. 49; Case T-380/04 Terezakis v. Commission [2008] not published in the ECR, para. 88. 32 Joined Cases T-391/03 and T-70/04, Franchet and Byk v. Commission [2006] ECR II-2023, paras 115-117.

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  16  Gunpowder for Court Battles 16.3.2.1   Mandatory Exceptions Under Article 4(1) of Regulation 1049/2001 institutions are obliged to refuse disclosure if it would undermine the protection of: (a) the public interest as regards: – public security, – defence and military matters, – international relations, – the financial, monetary or economic policy of the [Union] or a member state; (b) privacy and the integrity of the individual, in particular in accordance with [EU] ­legislation regarding the protection of personal data. The Courts examined the exceptions based on public security and international rela­ tions in the leading Sison v. Council case, that is, in the context of fund-freezing measures ­adopted with a view to combating terrorism.33 They rejected the applicant’s argument based on the rights of the defence, that is, on the alleged right to be informed in detail of the accusations made against him which formed the basis of the fund-freezing measure. According to the Courts, such a right to be informed could not be exercised by having recourse to the mechanisms for public access to documents implemented by Regulation 1049/2001. They held that no public interest could be balanced against a public interest defended by a mandatory exception, let alone the applicant’s particular interest in being informed of the accusations against him.34 The exception concerning the privacy and the integrity of the individual protects fun­ damental rights recognized in Article 8 of the European Convention on Human Rights and Articles 7 and 8 of the Charter of Fundamental Rights of the EU. In Bavarian ­Lager v. ­Commission,35 the Court of Justice also ruled that Regulation 1049/2001 must be ­interpreted in accordance with Regulation 45/2001 on the protection of individuals with regard to the processing of personal data by the institutions,36 reflecting the equilibrium between the two regulations that the EU legislature intended to establish.37 An intrigu­ ing consequence of this ruling is the application of Article 8(b) of Regulation 45/2001, which provides that the requesting party may only receive personal data if it establishes

33 Case T-110/03, T-150/03 and T-405/03, Sison v. Council [2005] ECR II-1429, paras 61-62, upheld by the Court of Justice in Case C-266/05 P Sison v. Council [2007] ECR I-1233, paras 82-83. 34 Case C-266/05 P Sison v. Council [2007] ECR I-1233, paras 46-48. 35 Case C-28/08 P Bavarian Lager v. Commission [2010] not yet published. 36 EP Regulation of 18 December 2000, 45/2001 [2001] OJ L8/1, on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data. 37 Case C-28/08 P Bavarian Lager v. Commission [2010] not yet published, para. 65.

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Viktor Łuszcz the necessity of having the data transferred and if there is no reason to assume that the data subject’s legitimate i­nterests might be prejudiced. On this basis, the Court took into consideration that Bavarian Lager had not provided any express and legitimate justifica­ tion in order to demonstrate the necessity for the requested personal data to be trans­ ferred. Therefore, it considered that the Commission had not been able to weigh up the various interests of the parties concerned and to verify whether there was any reason to assume that the data subjects’ legitimate interests might be prejudiced.38 This wording sug­ gests that the Commission should have weighed up the ‘various interests of the parties’ if Bavarian Lager had shown its legitimate interest in obtaining the documents. It is unclear how this can be reconciled with the statement in Sison v. Council that no public or private interest could be balanced against a public interest defended by a mandatory exception. It also creates a major exception from the rule that the particular interest of the applicant in disclosure is irrelevant in the context of Regulation 1049/200139 (see also, section 3.2.3.). In any case, in Umbach v. Commission, the General Court held that the privacy and integrity of the individual was an imperative public interest against which no particular interest of the applicant (in the case at issue, his right to defend himself effectively before a national court) could be relied on.40 16.3.2.2   Discretionary Exceptions By virtue of Article 4(2) of Regulation 1049/2001: The institutions shall refuse access to a document where disclosure would ­undermine the protection of: – commercial interests of a natural or legal person, including intellectual property, – court proceedings and legal advice, – the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure. Moreover, Article 4(3) protects the secrecy of the institutions’ decision-making process: Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would

38 Case C-28/08 P Bavarian Lager v. Commission [2010] not yet published, para. 78. 39 Case T-391/03 and T-70/04 Franchet and Byk v. Commission [2006] ECR II-2023, paras 138-139; Case T-110/03, T-150/03 and T-405/03 Sison v. Council [2005] ECR II-1429, para. 50. 40 Case T-474/08, Umbach v. Commission [2010] not published in the ECR, paras 70-71.

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  16  Gunpowder for Court Battles seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure. Access to a document containing opinions for internal use as part of delibera­ tions and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure. When applying the provisions relating to discretionary exceptions, the institutions not only need to consider the content of the requested documents, but also have to weigh up the public or private interest protected by these exceptions as well as the possible overrid­ ing public interest in disclosure.41 The exception based on the protection of commercial interests of a natural or legal person is in line with Article 337 TFEU, which provides that members and staff of the EU institu­ tions and bodies shall not disclose information of the kind covered by the obligation of professional secrecy. This applies, in particular, to information about undertakings, their business relations or their costs. As confidential business information is typically gath­ ered in competition law proceedings, secondary legislation concerning such proceedings provides detailed rules on professional secrecy.42 However, as the General Court ruled in Agrofert v. Commission, the provisions governing competition law procedure cannot deprive Regulation 1049/2001 of its effective application. Agrofert, a competitor of two companies whose merger was authorised by the Commission, requested access to the merger file under Regulation 1049/2001. The Commission argued that it could not dis­ close any document, as it was obliged, under Article 17(1) of the Merger Regulation,43 to use any information acquired via the merger procedure only for the purposes of the rel­ evant request, investigation or hearing. The General Court dismissed that argument, and considered that the latter provision concerns the manner in which the Commission may use the information supplied and does not govern the access to documents guaranteed by Regulation 1049/2001.44 The assessment as to the confidentiality of a piece of information requires that the individual legitimate interests opposing disclosure be weighed against the public interest in ensuring the most possible openness of the institutions’ activity.45 Therefore, the General Court held that the obligation of respecting professional secrecy 41 Case C-266/05 P, Sison v. Council [2007] ECR I-1233, para. 46. 42 Art. 17 of Council Regulation 139/2004 of 20 January 2004 [2004] OJ L24/1, on the control of concentrations between undertakings; Arts. 27 and 28 of Regulation 1/2003. 43 Regulation 139/2004. 44 Case T-111/07, Agrofert v. Commission [2010] not published in the ECR, para. 88. 45 Case T-111/07 Agrofert v. Commission [2010] not published in the ECR, para. 69; citing by analogy Case T-198/03, Bank Austria Creditanstalt v. Commission [2006] ECR II-1429, para. 71, and Case T-474/04, ­Pergan Hilfsstoffe fürindustrielle Prozesse v. Commission [2007] ECR II-4225, paras 63 to 66.

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Viktor Łuszcz under competition rules could not justify a general and abstract refusal of access to docu­ ments, and did not dispense the Commission from its duty to carry out a concrete, indi­ vidual assessment of each document requested under Regulation 1049/2001.46 While the Agrofert Judgment contains to this day the clearest indication as regards the separation of the conditions of application of Regulation 1049/2001, on one hand, and of the fieldspecific rules governing the administrative procedure, on the other hand, it remains to be seen if this approach is confirmed by the Court of Justice on appeal.47 As regards the exceptions based on the protection of court proceedings, the General Court ruled in Franchet and Byk v. Commission, in line with its general approach that exceptions should be interpreted narrowly, that the protection of the public interest only precludes the disclosure of the content of documents drawn up “solely for the purposes of specific court proceedings”. The latter concept covers pleadings or other documents lodged with the courts, internal documents concerning the investigation of the case before the court, and – as regards Commission documents – correspondence concerning the court case between the Directorate-General concerned and the Legal Service or an external legal counsel.48 The purpose of this definition of the scope of the exception is to ensure both the protection of work done within the Commission as well as the confidentiality and safeguarding of professional privilege for lawyers. As far as the exception regarding protection of legal advice is concerned, in Sweden and Turco v. Council, the Court of Justice drew a distinction between legal advice delivered in legislative and administrative matters. It considered that there was no general need for confidentiality in respect of advice (or opinion) from the Council’s legal service relating to legislative matters. Even if the legal service’s opinion was negative as regards a legislative proposal, refusal of access could not be justified by the fear that it could lead to doubts as to the lawfulness of the legislation adopted in spite of the legal service’s opinion. On the contrary, according to the judgment, it is openness in this regard that confers greater legitimacy on the institutions in the eyes of European citizens.49 In the T-403/05 MyTravel v. Commission case,50 the General Court was called on to ­examine if the exception relating to legal advice applied to notes of the Commission’s legal service in which it expressed a negative opinion concerning draft texts prepared by DG Competi­ tion during the procedure leading up to the decision to block the Airtours/Fist Choice merger. The broader context of the request of documents was that the merger decision

46 Case T-111/07, Agrofert v. Commission [2010] not published in the ECR, para. 70. 47 Case C-477/10 P Commission v. Agrofert, pending. 48 Case T-92/98, Interporc v. Commission (Interporc II) [1999] ECR II-3521, paras 40-41; Case T-391/03 and T-70/04, Franchet and Byk .v. Commission [2006] ECR II-2023, paras 40-41. 49 Case C-39/05 and C-52/05 P, Sweden and Turco v. Council [2008] ECR I-4723, paras 57 and 59. See also, Harden, 2009, supra note 21, at p. 248. 50 Case T-403/05, MyTravel v. Commission [2008] ECR II-2027.

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  16  Gunpowder for Court Battles had been annulled in 2002 by the Airtours v. Commission judgment,51 and ­MyTravel, for­ merly Airtours, submitted that it needed access to the said notes in order to rely on them in the T-212/03 MyTravel v. Commission case, in which it sought the reparation of the damages caused by the illegal merger decision.52 In the T-403/05 access to documents case, the General Court considered that disclosure of the said notes had to be refused because it could have put the Commission in a difficult position insofar as its legal service might be required to defend a position before the EU Courts which differs from the one it had argued for internally. On appeal, the Court of Justice dismissed this argument ­stating that the request for access was brought after the annulment of the merger decision by the ­General Court at a time when no further action concerning the legality of that deci­ sion was possible.53 As a consequence, it partially set aside the T-403/05 Judgment. It is noteworthy that the Court of Justice did not mention the T-212/03 damages case against the Commission pending at the time when the Commission adopted its decision refusing access (see also, below in Section 16.6.2). This may suggest that the exception protecting legal advice may be more relevant while the Commission is still defending the validity of its decision before the Courts than at a time when the illegality of the decision has already been established by the Courts and the applicant is seeking reparation of damages caused by the decision. As regards the exception protecting the purpose of inspections, investigations and audits, the Court of Justice made clear in Commission v. Technische Glaswerke Ilmenau that this exception must be applied in line with the provisions governing the relevant procedure. In particular, it held that the fact that by virtue of Regulation 659/1999 governing the proce­ dure for reviewing state aid parties concerned other than the member state concerned – including the aid recipient – do not have the right to consult the documents in the Com­ mission’s administrative file, there is a general presumption that disclosure of documents in the administrative file in principle undermines protection of the objectives of investiga­ tion activities. The existence of such a general presumption discharges the Commission from the duty of carrying out a concrete and individual examination in respect of each document requested and allows the treatment of documents by categories, since similar considerations are likely to apply to documents of the same nature. To ­attenuate the rigour of this ruling, the Court of Justice added that access must be granted to a given document if the party concerned demonstrates that it is not covered by that presumption, or that there is an overriding public interest justifying the disclosure.54 The judgment clearly raises 51 52 53 54

Case T-342/99, Airtours v. Commission [2002] ECR II-2585. Case T-212/03, MyTravel v. Commission [2008] ECR II-1967. Case C-506/08 P, Sweden v. Commission (‘MyTravel’) [2011] not yet published, paras 113-117. Case C-139/07 P, Commission v. Technische Glaswerke Ilmenau [2010] not yet published, paras 54, 61 and 62; applied also in Case T-494/08 to T-500/08 and T-509/08, Ryanair v. Commission [2011] not yet published, para. 70 et seq.

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Viktor Łuszcz the question whether the General Court can keep on applying its Agrofert precedent – separating the conditions of access under Regulation 1049/2001 from those under fieldspecific rules governing the administrative procedure – in the future (the conflict between these judgments will be addressed in Section 16.6.1). The last exception protects the decision-making process of the institutions. In line with the Sweden and Turco v. Council precedent concerning the exception protecting legal advice,55 the Courts have drawn a distinction between requests concerning documents used in leg­ islative proposals and those which are part of an administrative file also in the context of the application of the exception protecting the decision-making process. In the context of legislative documents, it was repeated in Access Info Europe v. Council that the interest of the public in obtaining more ample access to such documents was justified by the principle of transparency, which seeks to ensure greater participation of citizens in the decision-making process and to guarantee that the administration enjoys greater legitimacy.56 On the other hand, it was emphasised by the Court of Justice in Commission v. Technische Glaswerke Ilmenau and by the General Court in MyTravel v. Commission that such interests do not carry the same weight in the case of documents drawn up in administrative procedures concerning the control of concentrations or competition law in general57 and those govern­ ing the procedure for reviewing state aid.58 The latter rulings gave rise to considerable wor­ ries as they were regarded as all but eliminating transparency in administrative matters.59 However, in the recent Sweden v. Commission (Mytravel) Judgment, which partially set aside the General Court’s judgment in MyTravel v. Commission, the Court of Justice made clear that institutions are not allowed to reduce transparency excessively by simply referring to the different extent of access to documents belonging to administrative and legislative files. It stressed that the mere fact that the requested documents concern an administrative pro­ cedure does not alleviate the obligation of the institution concerned to provide sufficiently detailed and specific reasons for justifying the refusal. Moreover, it highlighted the impor­ tance of whether the request of documents is made before or after the termination of the administrative procedure, by referring to the different extent of access allowed under the first and the second subparagraphs of Article 4(3) of Regulation 1049/2001. Then it went on to examine the “opinions for internal use as part of deliberations and preliminary con­ sultations within the institution concerned”, which, by virtue of the second subparagraph of Article 4(3), are protected even after the closure of the procedure. It held that the reasons

Case C-39/05 and C-52/05 P, Sweden and Turco v. Council [2008] ECR I-4723, paras 57 and 59. Case T-233/09, Access Info Europe v. Council [2011] not yet published, paras 56 and 57. Case T-403/05, MyTravel v. Commission [2008] ECR II-2027, para. 49. See by analogy, Case C-139/07 P, Commission v. Technische Glaswerke Ilmenau [2010] not yet published, para. 60. 59 See e.g., Leino 2011, pp. 1218, 1247, 1251; G. Muguet-Poulennec, ‘Vers la fin de la transparence dans les procédures administratives?’, Revue Lamy de la Concurrence 25, 2010, pp. 51-55. 55 56 57 58

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  16  Gunpowder for Court Battles capable of justifying refusal of access to such documents before the closure of the procedure might not be sufficient after the adoption of the decision, and that the General Court should have required the Commission to indicate why access to a report containing opinions of internal use was still refused after the closure of the procedure.60 16.3.2.3  Overriding Public Interest As already mentioned, discretionary exceptions only justify refusal of access if there is no overriding public interest in disclosure. The question has arisen whether the interest in obtaining documents for use in court proceedings could be qualified as an overriding public interest. In Franchet and Byk v. Commission, the applicants sought access to OLAF documents, sent to national courts, which were liable to result in criminal proceedings. The General Court did recognize that the applicants had an interest in obtaining a copy of the said docu­ ments, but promptly pointed out that this qualified as a particular interest, whereas under Regulation 1049/2001 only a public interest could be relevant. Nor could the applicants rely on the concept of the right to a fair hearing. The General Court held that although the protection of that right was in itself a general interest, the right was manifested in that particular case by the applicants’ individual interest in defending themselves, which was private in nature. In these circumstances, the right to a fair hearing could not be consid­ ered as a public interest overriding the need to protect court proceedings and the purpose of inspections, investigations and audits.61 This solution was again adopted by the General Court in a wider context in Umbach v. Commission. In that case the applicant argued that he needed Commission documents in proceedings before a national court opposing him to the Commission which claimed the reimbursement of a certain sum allotted to the ­applicant within the framework of the TACIS programme. The General Court considered that the applicant could not rely on his rights of defence, insofar as his particular interest in defending himself effectively before the national court did not qualify as a public inter­ est overriding any of the interests protected by the discretionary exceptions.62 These judgments clearly show that Regulation 1049/2001, in its present form, is not partic­ ularly suitable for those litigants who seek access to institution documents for the purposes of national or EU court proceedings. The individual interest in obtaining the documents – the utility of the information for the applicant – is, however, one of the most important criteria considered by the EU Courts when deciding whether to order the ­production of the documents in proceedings before them (see, section 4) and might also be taken into account by the national courts (see, section 5). 60 Case C-506/08 P, Sweden v. Commission [2001] not yet published, paras 78 et seq. 61 Case T-391/03 and T-70/04, Franchet and Byk v. Commission [2006] ECR II-2023, paras 138-139; see also, Case T-110/03, T-150/03 and T-405/03, Sison v. Council [2005] ECR II-1429, para. 50. 62 Case T-474/08, Umbach v. Commission [2010] not published in the ECR, paras 55-59.

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Viktor Łuszcz 16.4 Obtaining Documents in the Procedure before the EU Courts Aside from the possibility of requesting documents in the administrative procedure from the institution concerned or the possibility of doing so under Regulation 1049/2001 on public access to institution documents, parties concerned may also obtain access to docu­ ments needed for litigation before the EU Courts through the latter.

16.4.1    Procedure Article 24 of the Statute of the Court of Justice provides that the Courts may require the parties to produce all documents and to supply all information which the Court consid­ ers desirable. Such a request can also be made to member states and institutions, bodies, ­offices and agencies which are not parties to the case. The Rules of Procedure of the General Court explicitly foresee the possibility for the parties to ask the Court to invite the other party (or an institution, other EU body or a member state) to produce certain documents or information.63 Although no comparable provision exists in the Rules of Procedure of the Court of ­Justice – possibly because the cases which require the facts to be established are in principle heard by the General Court – there is nothing which would prevent the parties from making such a proposal in the procedure before the Court of Justice. The Courts have two possibilities to obtain documents. First, they may issue an invitation to submit relevant documents within the framework of the measures of organization of procedure (General Court)64 or as a preparatory measure (Court of Justice).65 Such an invitation is not required to be made by an order; it is notified to the addressee by a letter from the Registrar. Secondly, the Courts may also request the production of documents by formal order as a measure of inquiry.66 As a general rule, it is the applicant that seeks to obtain certain documents, in particular, in proceedings brought before the General Court against Commission or Council acts, where the verification of the set of facts as established by the institutions is crucial. The party may ask – either in its written pleadings or in a separate document – the General Court to invite or order the other party to produce certain documents. For reasons of procedural economy, the General Court normally tries first to obtain the document by way of an invitation addressed to the other party. Article 64(4) of the Rules of Procedure of the General Court provides that before the adoption of such a measure of organization of procedure, the other parties shall be heard before the measure is prescribed. However, 63 64 65 66

GCEU RoP Art. 64(3)(d) and (4). GCEU RoP Art. 64(3)(d). CJEU RoP Art. 54a. CJEU RoP Art. 45(2)(b); GCEU RoP 65(b).

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  16  Gunpowder for Court Battles in practice, the General Court invites the other party right away to submit the requested documents, without asking for its prior opinion. If the other party considers that the ­requested documents cannot be communicated to the requesting party, it may oppose the invitation and set out the reasons justifying non-disclosure. Partial access granted by the defendant institution or the production of a non-confidential version of the requested document is often satisfactory for the applicant. This procedure also applies mutatis mutandis to proceedings before the Court of Justice. If the other party opposes the Courts’ invitation, and the requesting party has filed or confirmed its application for production of documents in a separate pleading, the applica­ tion will be treated as a preliminary issue,67 and the Courts are required to adopt a formal decision on it. These decisions may be 1) an order obliging the other party to produce the requested documents, which is a measure of inquiry, having a binding nature as opposed to the invitation within the framework of the measures of organization of procedure.68 The Courts may also 2) reject the request by way of an order.69 It is also possible that the Courts can only decide after the hearing if those documents are indeed relevant to the outcome of the case. In such a case the Courts 3) reserve their decision on the request.70 If consultation of the documents turns out to be necessary, the Courts may not close the oral procedure at the end of the hearing, adjourn the hearing71 or even reopen the oral procedure72 and 3a) order the production of the documents. If, on the contrary, the Courts consider that the documents are not necessary for the outcome of the case, they may 3b) reject the request relating to the production of documents in the final judgment.73

16.4.2   The Courts’ Criteria Applied in the Context of Deciding on the Request In order to obtain documents in proceedings before the Courts, the requesting party must identify the desired documents and provide the Courts with at least minimum i­ nformation indicating the utility of those documents for the purposes of the proceedings, in order to enable the Courts to determine whether ordering the production of certain documents is appropriate.74 The mere fact that the applicant had directly requested the defendant to give access to the desired documents in the administrative procedure or upon the adoption of

67 68 69 70 71 72 73 74

CJEU RoP Art. 91; GCEU RoP Art. 114(1) see “other preliminary plea not going to the substance of the case”. E.g., order of 21 September 1999, Case C-204/97, Portugal v. Commission, not reported. Order of 18 November 1997, Case T-367/94, British Coal v. Commission [1997] ECR II-2103. CJEU RoP Art. 91(4); GCEU RoP Art. 114(4). Order of 18 April 1989, 213/87, VIA v. Commission, not reported. Order of 11 June 2010, T-113/07, Toshiba v. Commission, not reported. GECU T-411/06, Sogelma v. EAR [2008] ECR II-2771, paras 152-158. Case C-185/95, P Baustahlgewebe v. Commission [1998] ECR I-8417, para. 93; see also Case T-411/06, ­Sogelma v. EAR [2008] ECR II-2771, para. 152.

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Viktor Łuszcz the contested act, and that its request was refused, is not in itself capable of demonstrating the utility of those documents for the purposes of the proceedings.75 An application for ac­ cess to documents under Regulation 1049/2001 prior to instituting the Court proceedings is also immaterial when assessing the utility of the documents.76 The party asking for pro­ duction of documents has to show that they are relevant to the subject matter of the case.77 In Zenab v. Commission, the General Court essentially based its decision to reject the re­ quest in relation to the complete text of several documents on the ground that the content of those documents went largely beyond the subject matter of the case and, therefore, the refusal to give access could not be an obstacle to the exercise of the rights of the defence.78 Sogelma v. EAR is another judgment which shows that a well-targeted request pinpointing relevant parts of a limited number of documents may bring more results than a broadly formulated one. The General Court rejected the applicant’s request for the production of all the documents relating to the award procedure conducted by the European Agency for Reconstruction (hereinafter ‘EAR’), in which it participated without success. The General Court ruled that the examination by the EU judicature of the complete internal file of an EU body with a view to verifying whether that body’s decision had been influenced by ­factors other than those indicated in the statement of the reasons was an exceptional mea­ sure of inquiry. Such a measure presupposes the presence of serious doubts as to the real reasons and in particular, to suspicions that those reasons were extraneous to the objec­ tives of EU law and hence amounted to a misuse of powers.79 The most frequent reason relied on by the institutions opposing the production of docu­ ments is that they contain confidential information, typically business secrets of other undertakings, whose disclosure to the applicant could harm the interests of third parties. The General Court often faces situations where it transpires that certain documents would indeed be important for the applicant for the proper exercise of its rights of defence – or simply for the purposes of resolving the case – but, at the same time, the defendant in­ stitution puts forward valid arguments suggesting that granting the applicant access to these documents would be detrimental to third parties. The General Court cannot, how­ ever, order the production of the documents and retain them for its own use, as Article 67(3) of the Rules of Procedure provides that it shall take into consideration only those documents which have been made available to the parties and on which they have been given an ­opportunity to express their views (bar the situation described above in Sec­ tion 16.3.4 where the subject matter of the case before the General Court is the legality of a decision refusing access to documents). Therefore, in such situations, as a first step, 75 76 77 78 79

Case T-411/06, Sogelma v. EAR [2008] ECR II-2771, para. 154. Case T-33/06, Zenab v. Commission [2009] not published in the ECR, para. 40. Case T-367/94, British Coal v. Commission [1997] ECR II-2103, para. 24. Case T-33/06, Zenab v. Commission [2009] not published in the ECR, para. 38. Case T-411/06, Sogelma v. EAR [2008] ECR II-2771, para. 157.

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  16  Gunpowder for Court Battles the General Court orders the production of the requested documents in order to verify their confidential nature, without, however, communicating them to the other parties.80 It might conclude that those documents are unrelated to the subject matter of the litiga­ tion. In such a case the Court does not add them to the file and rejects the request for access. If the ­documents are relevant, the Court weighs up the public or private interest in keeping the documents confidential and the need to accord the applicant a sufficient measure of procedural justice. To that effect, the Court may also oblige the defendant to substantiate its claim regarding the confidentiality of each individual document.81 A particularly intricate situation arose in the People’s Mojahedin Organization of Iran v. Council case where the Council objected to the General Court’s order to produce informa­ tion essential for the judicial review of its decision to maintain the effect of fund-freezing measures as regards the applicant. The Council argued that the document containing the text in issue had been drawn up by the French authorities and therefore it was bound by the latter’s request for confidentiality, so that it could not provide the information to the General Court even on a confidential basis. The General Court ruled that without that in­ formation it was unable to review the lawfulness of the contested decision, so that it had to be annulled.82 France appealed against the General Court’s judgment83 and argued that the very reason why it decided not to waive the confidentiality of the information at issue even as regards the General Court – whereas it communicated it to other members states and the Council – was that by virtue of Article 67(3) of the Rules of Procedure of that Court the latter shall take into consideration only those documents which have been made available to the parties and on which they can express their views. France apparently feared that once the Council submitted the information to the General Court, it would only depend on that Court’s appraisal of the indispensable nature of the information for the review of the legal­ ity whether it takes it into account, in which case it also has to disclose it to the applicant. Account taken of all these factors, the Advocate General suggested that the Rules of Proce­ dure of the General Court be amended to allow for a special handling of closed evidence which is not to be communicated to the other party (‘closed evidence’).84 While it remains for the Court of Justice to give guidance as regards the possibility and the necessity of amending the General Court’s Rules of Procedure, it is interesting to examine what solutions the latter has developed for similar situations under the existing procedural rules. Cartel cases present some similarity, as documents gathered by the Commission 80 GCEU RoP Art. 67(3). 81 Order of 26 September 2008, Case T-284/08, People’s Mojahedin Organization of Iran v. Council, not r­ eported, based on Case C-402/05 P and C-415/05 P Kadi and Al Barakaat v. Council [2008] ECR I-6351, para. 344 and ECoHR Chahal v. United Kingdom [1996] RJD 1996-V, para. 131. 82 Case T-284/08, People’s Mojahedin Organization of Iran v. Council [2008] ECR II-3487, paras 58 and 76. 83 Case C-27/09 P, France v. People’s Mojahedin Organization of Iran, pending. 84 Opinion of AG Sharpston of 14 July 2011 in Case C-27/09 P, France v. People’s Mojahedin Organization of Iran, paras 186 et seq.

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Viktor Łuszcz within the framework of its leniency programme often constitute important evidence against the applicant, whereas their disclosure in Court proceedings could endanger the interests of third parties that have supplied those documents voluntarily,85 and, ultimately, the efficiency of the Commission’s entire leniency policy. It is well understood that the Commission does not submit such documents unless it is reassured that – even if those documents are indispensable for solving the case – they will not be communicated to the applicant. Therefore, the General Court may specify in its order obliging the Commission to submit such documents that they will not be communicated to the applicant and that the applicant’s lawyers may not make a copy of them. ‘Making available’ these documents to the applicant therefore only means that his lawyers may consult them at the Registry86 and take manual notes. Another solution was devised in Impala, where the General Court allowed the Commission to submit certain confidential information by communicating it solely to the applicant’s lawyers, to the exclusion of the applicant itself.87 It is nonetheless questionable if such solutions can also be applied in cases involving the review of legality of fund-freezing measures. The need to grant the applicant a sufficient level of procedural justice is weighed not against the interest of keeping business secrets confidential or the Commission’s leniency programme work but against interests relat­ ing to national security or even to the physical safety of individuals who have supplied evidence. Therefore it is unclear whether the Council (or the member states which have supplied the information) would consider it a sufficient guarantee that the information is only communicated to the applicant’s counsel, who would commit not to disclose it even to his own client. It is nonetheless imaginable that in certain future cases, such a handling of closed evidence would make it possible to grant access to more confidential informa­ tion, which may just make it possible to reach the ‘sufficient’ level of procedural justice, that is, allow the General Court to carry out its review in observance of the rights of the defence and the right to a fair trial. In any event, when the review of legality requires that even the most sensitive sort of ­information be relied on by the EU Courts, security must probably be further increased. The Opinion of the Advocate General in France v. People’s Mojahedin Organization of Iran mentions the system featuring ‘special advocates’ entitled to deal with secret evidence which has been put in place in the United Kingdom.88 Resorting to such a solution prob­ ably does not require amendment of the General Court’s Rules of Procedure, as disclosure 85 As such documents could be used as evidence in proceedings for damages before third country jurisdictions or contain important business secrets. 86 Order of 11 June 2010, Case T-113/07, Toshiba v. Commission, not reported; order of 30 March 2011, Case T-103/08, Polimeri Europa and Eni v. Commission, not reported. 87 Case T-464/04, Impala v. Commission [2006] ECR II-2289, paras 18-19. 88 Opinion of AG Sharpston in Case C-27/09 P, France v. People’s Mojahedin Organization of Iran, para. 244; See also, Report on the operation in 2010 of the Terrorism Act 2000 and of Part 1 of the Terrorism Act 2006 by D. Anderson, July 2001, at p. 31 and 39.

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  16  Gunpowder for Court Battles limited to the counsel is already current practice. However, if that Court is ­expected to found its judgments on evidence which has not been made available even to the applicant’s lawyers, amending the Rules of Procedure would appear to be inevitable.

16.5 Obtaining Institution Documents Through National Courts Institution documents can also prove to be vital in proceedings before national courts. ­Examples include actions for damages initiated by consumers against cartel members, where the published non-confidential version of the Commission decision might not provide sufficient evidence for such actions,89 or litigation between an institution and a ­private party before a national court.90 It is therefore of great importance to ensure that national judges can request institution documents for the purposes of hearing the legal dispute before them – also with a view to supplying those documents to litigants who need such evidence for arguing their case. The first step was made in Zwartfeld, where a national court conducting proceedings on the ­infringement of EU rules sought production of information by the Commission con­ cerning the existence of the facts constituting those infringements. The Court of Justice ­recalled that the principle of sincere cooperation (now Art. 4(3) of the TEU) imposes mu­ tual duties on the member states and the EU institutions in carrying out tasks flowing from the Treaties. It then inferred from this that every institution has to give its active assistance to such national legal proceedings, by producing documents to the national court.91 In Umbach,92 the applicant was opposed to the Commission in proceedings before a ­national court. The Commission claimed the reimbursement of a certain sum allotted to the applicant within the framework of the TACIS programme. The applicant applied for access to Commission documents under Regulation 1049/2001 and also by relying on Article 6 of the European Convention of Human Rights (hereinafter ‘ECHR’).93 He ­argued that the requested documents were necessary for arguing his case before the national court, where he was the defendant. The Commission refused to grant access under Regu­ lation 1049/2001 without mentioning the ECHR. The General Court only examined – and upheld – the refusal under Regulation 1049/2001 by considering that the silence of the

89 See the references to national court proceedings in Case T-2/03, Verein für Konsumenteninformation v. ­Commission [2005] ECR II-1121. 90 See the references to national court proceedings in T-474/08, Umbach v. Commission [2010] not published in the ECR. 91 Order of 13 July 1990, Case C-2/88 IMM, Zwartfeld and Others [1990] ECR I-3365, paras 17 and 22. 92 Case T-474/08, Umbach v. Commission [2010] not published in the ECR. 93 Art. 6 of the ECHR provides: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an indepen­ dent and impartial tribunal established by law.”

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Viktor Łuszcz Commission on the other ground put forward by the applicant cannot be considered as an implicit refusal. It ruled, however, in an obiter dictum that by virtue of the principle of sincere cooperation, the national court could request the Commission to produce all documents which it deems necessary for deciding the case before it. If the Commission refused to grant the request without any objective reasons, the national court could ask the Court of Justice to deliver a preliminary ruling on the lawfulness of the refusal, as it is competent for ensuring compliance with the principle of sincere cooperation.94 However, several aspects still remain unclear after the Umbach Judgment was handed down: under what rules can a private party obtain access to the documents submitted by the institution to the national court? Does it have any means of challenging a decision of the national judge not to request the institution document or not to communicate it to that party? Apart from national procedural codes, Article 41 of the Charter of the Fun­ damental Rights of the EU might be relevant in this respect. It provides that every person must be granted access to his or her file, while respecting the legitimate interests of confi­ dentiality and of professional and business secrets. It is also possible to rely on the rights of the defence and the right to a fair trial before the national court, by referring to the principle that the court should weigh up the public or private interest in keeping the docu­ ments confidential and the need to accord the applicant a sufficient measure of procedural justice, as the General Court held in People’s Mojahedin Organization of Iran v. Council.95 Another interesting question is whether the recent judgment in Pfleiderer96 could have a bearing on the rules relating to the disclosure of documents held by the institutions when access is requested by a litigant before a national court. In the main proceedings, the Bundeskartellamt (the German competition authority) refused access, requested by  the  applicant, to documents it obtained within the framework of its leniency pro­ gramme. The national court referred a question for a preliminary ruling to the Court of Justice as to whether it could order the Bundeskartellamt to grant Pfleiderer access to the file without undermining the effective enforcement of EU competition law and the proper functioning of the European Competition Network. The Court of Justice ruled that EU competition law provisions did not preclude a claimant for damages from being granted access to documents relating to a leniency procedure, and it was for the national courts, on the basis of their national law, to determine the conditions under which such access had to be permitted or refused by weighing the interests protected by EU law. As regards the consequences for the Commission – worried about the efficiency of its leniency programme if self-incriminating evidence voluntarily submitted by cartel members could be disclosed to claimants for damages before national courts – it must 94 Case T-474/08, Umbach v. Commission [2010] not published in the ECR, paras 44-46. 95 See case law cited at supra note 81. 96 Case C-360/09, Pfleiderer [2011] not yet published.

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  16  Gunpowder for Court Battles be pointed out that, unlike national competition authorities, it cannot be ordered by a national court to grant access to its documents. A national court may only request the Commission to provide documents by virtue of the principle of sincere cooperation and then, if transmitted, possibly furnish them to the litigant or make them available at least to the latter’s lawyers. If the Commission does not accede to the request, the national court may refer, as was held in Umbach, a question for a preliminary ruling to the Court of Justice as to the lawfulness of the refusal. Therefore, in such a case, it would not be the national court weighing up the opposing interests as regards disclosure but the Court of Justice. It is, however, still an outstanding question how the Commission could prevent na­ tional competition authorities from being ordered to disclose sensitive information previously obtained from the Commission. If the Pfeiderer Judgment applied to such a situation, the Commission might become wary of transmitting such kind of informa­ tion to national competition authorities, which may in turn jeopardize the effective functioning of the European Competition Network. It is arguable that the principle of sincere cooperation prevents national courts from ordering the national competi­ tion authorities to produce documents previously obtained from the Commission if the latter objects to the disclosure (or, a fortiori, if the Commission was not even given an ­occasion to express its views). The same logic could also apply to cases where the damage claimant asks the national court to order the defendant cartel member to com­ municate the self-incriminating evidence it submitted within the framework of the Commission’s leniency programme.97 If the national court is convinced that the docu­ ments are indeed vital for solving the case or for allowing the applicant to substantiate its argumentation, it could first ask the Commission to state its position on disclosure. If the Commission objects to disclosure, and the national court is not convinced by its arguments, the latter could refer a question for preliminary ruling as to the lawfulness of the objection. In the long run, however, it seems to be important that either the Court of Justice or the Commission – by means of legislation regarding damages claims in cartel cases98 – gives more specific guidance, possibly by identifying categories of documents the production of which can be ordered by national courts and by establishing principles governing the national courts’ appraisal.

97 Such a situation arose in a before a UK court where National Grid, the damage claimant, asked the court to order the production, by participants of the switchgear cartel, of sensitive documents they had submitted voluntarily to the Commission, see . 98 The Commission has made the first step in this respect. The White Paper on damages actions for breach of the EC antitrust rules (COM(2008) 165 final) addresses the issue and sets out a few principles, such as the appraisal of the plausibility of the claim and of the proportionality of the disclosure request, see section 2.2.

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Viktor Łuszcz 16.6 Requests for Documents under Different Regimes May Bring Different Results As was shown in Section 16.2, the main subjects of the procedure (that is, the person against whom the procedure is conducted) often obtain sufficient access to the documents on which the institution intends to base its act already in the administrative procedure. This is rarely the case, however, for the other parties concerned, which have limited or no access to documents under field-specific procedural rules and which, as opposed to the main parties, may not rely on the rights of the defence.99

16.6.1   Comparing the Extent of Access in the Administrative Procedure and Under Regulation 1049/2001 The fact that the main subject of the administrative procedure has more chance of ob­ taining the necessary documents under field-specific procedural rules or by virtue of the protection of the rights of the defence is well illustrated, in the specific context of fundfreezing measures, by Kadi and Al Barakaat v. Council100 and Sison v. Council,101 where no evidence was communicated to the applicants even after the adoption of the measure in question. Mr. Kadi and the Al Barakaat International Foundation successfully invoked the breach of the right to be heard and, as a consequence, the contested measure was annulled and the Council was given, in essence, a three- month deadline to remedy the breach of that right by communicating to the applicants the evidence underlying the application of the measure in their respect. In contrast, in Sison v. Council, the Court of Justice held that the right to be informed – even for the purposes of arguing a case before the Courts – was immaterial in the context of the application of Regulation 1049/2001. As to the extent of the right of third parties (that is, parties which were not the main par­ ties in the administrative procedure) to obtain documents in the administrative proce­ dure and under Regulation 1049/2001, Agrofert suggests that the two regimes are largely independent of each other. Therefore, the applicant may receive documents following its request under that regulation, at least after the adoption of the institution’s act in ­question, which it could not otherwise obtain during the administrative procedure under the ­relevant procedural rules. The General Court ruled that the Commission could not val­ idly argue that – in view of the fact that under Article 17(1) of the Merger Regulation the Commission has to use any information acquired under the merger procedure only for the purposes of the relevant request, investigation or hearing – it had to reject the request 99 Case T-494/08 to T-500/08 and T-509/08, Ryanair v. Commission [2011] not yet published, para. 81. 100 Case C-402/05 P and C-415/05 P, Kadi and Al Barakaat v. Council [2008] ECR I-6351. 101 Case C-266/05 P, Sison v. Council [2007] ECR I-1233, paras 46-48.

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  16  Gunpowder for Court Battles for documents by a competitor of the merging parties on the basis of the exceptions relat­ ing to the protection of commercial interests and that of the purpose of investigations. According to that judgment, the Commission is not allowed to refuse access by referring to general reasons applying to categories of documents, but has to carry out a concrete and individual examination of each requested document in application of the provisions of Regulation 1049/2001. The General Court also added that the exception relating to the protection of the purpose of investigations only applies if disclosure of the documents in question may endanger the completion of the investigation at issue. However, that could not be the case as far as Agrofert’s request was concerned, given that the Commission’s decision refusing access was adopted two years after the completion of the merger proce­ dure.102 The status of the applicant in the administrative procedure (and the extent of his right to access the file under the relevant procedural rules) was also found irrelevant from the point of view of the extent of public access under Regulation 1049/2001 in Éditions Odile Jacob v. Commission.103 On the other hand, the regime of access to documents applicable to a particular proce­ dure and the one under Regulation 1049/2001 were linked in Commission v. Technische Glaswerke Ilmenau and Ryanair v. Commission. In both cases, access to documents under the Regulation had been requested by the recipient of the purported aid before the adop­ tion of the final decision on the legality of the state measure. The Courts ruled that when interpreting the exception relating to the protection of the purpose of inspections, investi­ gations and audits, account had to be taken of the fact that under Regulation 659/1999,104 parties other than the member state concerned do not have the right to consult the docu­ ments in the Commission’s administrative file. Therefore, the Courts acknowledged the existence of a general presumption that disclosure of documents in the administrative file in principle undermines protection of the objectives of investigation activities. The pre­ sumption implies that the institution is not obliged to carry out a concrete and individual examination of each document requested, while the applicant still maintains the right to demonstrate that an individual document is not covered by the presumption or that an overriding public interest in disclosure exists.105 One possible way of reconciling Agrofert and Éditions Odile Jacob, on the one hand, and Technische Glaswerke Ilmenau and Ryanair, on the other, is to select the completion of the administrative procedure as the criterion for deciding if the field-specific rules governing ac­ cess in the administrative procedure should have a bearing on the application of Regulation 102 Case T-111/07, Agrofert v. Commission [2010] not published in the ECR, paras 77, 97-99, see also, Franchet and Byk v. Commission, para. 109. 103 Case T-237/05, Éditions Odile Jacob v. Commission [2010] not published in the ECR, para. 86. 104 See in particular, Art. 6(2) of Regulation 659/1999. 105 Case C-139/07 P, Commission v. Technische Glaswerke Ilmenau [2010] not yet published, paras 54, 61 and 62; Case T-494/08 to T-500/08 and T-509/08, Ryanair v. Commission [2011] not yet published, para. 70 et seq.

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Viktor Łuszcz 1049/2001. It is noteworthy that in the first two judgments, the request for access was made after the closure of the administrative procedure, whereas in Technische Glaswerke Ilmenau and Ryanair the request for access was made when the procedure for reviewing state aid was still ongoing. However, it must be pointed out that the Courts made no reference to this criterion in Technische Glaswerke Ilmenau and Ryanair. Although in the recent Sweden v. Commission (MyTravel) Judgment the Court took into account the fact that the request for access was made after the completion of the administrative procedure, it did so in the con­ text of Article 4(3) of Regulation 1049/2001 (protecting the institutions’ decision-making process), which, unlike the exception protecting the purpose of inspections, investigations and audits, differentiates between the periods preceding and following the adoption of the final act.106 Also, MyTravel (formerly Airtours) was one of the merging parties which could obtain access to documents under the relevant procedural rules and by virtue of the prin­ ciple of respect for the rights of the defence. It thus had a substantially different position in the Commission procedure than Agrofert, Editions Odile Jacob, Technische Glaswerke Ilmenau and Ryanair, which were all third parties whose access to Commission documents was not foreseen by the relevant procedural rules. Therefore it is questionable if Sweden v. Commission (MyTravel) may provide any guidance as to whether the extent of access under Regulation 1049/2001 should be brought in line with the extent of the access available under the relevant procedural rules in the event where the request for documents is mad after the completion of the administrative procedure. On the other hand, the upcoming judgment in the pending Agrofert and Éditions Odile Jacob appeal cases107 will most probably clarify the question whether the presumption established in Technische Glaswerke Ilmenau applies even to requests made after the closure of the administrative procedure. The Commission’s proposal for recasting Regulation 1049/2001108 appears in relation to third parties, which are not entitled to obtain documents in the administrative proce­ dure, to be even more restrictive than the solution adopted in Commission v. Technische ­Glaswerke Ilmenau and subsequently in Ryanair v. Commission. According to the proposed amendment, access to documents relating to the exercise of the investigative powers of an institution, having an individual scope, should be excluded until the relevant decision can no longer be challenged by an action for annulment or the investigation is closed. During this investigation phase, only the specific rules in this field would remain applicable.109

106 Case C-506/08 P, Sweden v. Commission (‘MyTravel’) [2011] not yet published, paras 78 et seq. 107 Case C-477/10 P, Commission v. Agrofert, pending; Case C-404/10 P, Commission v. Éditions Odile Jacob, pending. 108 COM(2008) 229 final, proposed new Art. 2(6). 109 As field-specific rules, the Commission proposal mentions “Articles 27, 28 and 30 of Regulation 1/2003 (competition) Articles 6(7) and 14(2) of Regulation(EC) No. 384/96 (antidumping), Articles 11(7) and 24(2) of Regulation (EC) No. 2026/97 (anti-subsidy), Article 6(2) of Regulation (EC) No. 3285/94 (safeguards) and Article 5(2) of Regulation (EC) No519/94 (safeguards against non-WTO members)”.

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  16  Gunpowder for Court Battles Therefore, not only a presumption on the applicability of the exception concerning the protection of the purpose of inspections and investigations would exist (as held in the said two judgments), allowing the applicant to demonstrate that the presumption is not applicable, but documents forming part of such administrative file could not be disclosed under any circumstances to interested third parties, that is, those parties which are not the main subject of the proceedings. This also implies that the approach taken in Agrofert v. Commission would no longer apply, that is to say interested third parties would not have access to such documents after the completion of the administrative procedure, until the deadline for an action for annulment lapses or the Court procedure ends. This would leave in a difficult situation those third parties which are unable to obtain access to documents in the administrative file either under field-specific rules or by virtue of the protection of the rights of the defence (such as, for instance, recipients of state aid or competitors of merging parties whose merger was cleared), not least because access would become impossible under Regulation 1049/2001, as well. Such an amendment would mean that their only possibility of receiving documents in the administrative file would be to ask the General Court to invite or order the institution to submit such documents, meaning that the applicants would not be able to rely on these materials when drafting their application.

16.6.2   Public Access under Regulation 1049/2001 and Access to Documents before EU and National Courts Documents considered useful for challenging an institution act may be requested by par­ ties concerned under Regulation 1049/2001 before the start of the proceedings before the EU Courts110 or after the filing of the application.111 The administrative procedure before the institution concerning the request for public access under Regulation 1049/2001 is entirely dissociated from the Court proceedings concerning the review of the contested act or the action for damages arising from an allegedly illegal institution act. Likewise, if the institution refuses to grant access under Regulation 1049/2001 and the applicant decides to challenge that refusal before the General Court, this action will constitute an action distinct from the main Court proceedings for annulment or damages. Parallel ­requests for documents under Regulation 1049/2001 and under the Rules of Procedure of the Courts112 in the main case are possible; a request for access to documents under Regulation 1049/2001 has no bearing on a request to obtain the documents via a measure of organization of procedure adopted by the Courts.

110 Case T-391/03, and T-70/04, Franchet and Byk v. Commission [2006] ECR II-2023. 111 Case T-237/05, Éditions Odile Jacob v. Commission [2010] not published in the ECR. 112 CJEU RoP Art. 45(2)(b) and 54a; GCEU RoP 64(3)(d) and 65(b).

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Viktor Łuszcz Such parallel requests were made in the Éditions Odile Jacob v. Commission cases, where in Case T-279/04 the applicant sought annulment of the Commission decision declar­ ing the ­Lagardère/Natexis/VUP merger compatible with the common market,113 and in ­T-452/04, Odile Jacob challenged the Commission decision concerning the implementation of Lagardère’s commitments.114 In January 2005, the applicant requested public access un­ der Regulation 1049/2001 to Commission documents which it considered important for its arguments in the pending merger cases (the main cases). The Commission refused access in April 2005 inter alia on the basis of the exceptions protecting the purpose of inspections, investigations and audits. It also considered that the applicant cold not rely on any over­ riding public interest, as its interest in obtaining documents needed for arguing its cases before the General Court was private in nature.115 This decision was challenged in the ancil­ lary case T-237/05. Interestingly, some of the documents whose disclosure had been ­refused by the Commission under Regulation 1049/2001 were voluntarily submitted by it in the main Court cases, some on its own initiative and others in reply to the applicant’s request submitted to the General Court, asking it to invite the Commission to produce the same documents as a measure of organization of procedure. The Commission considered that the applicant had to be granted broader access in the Court proceedings than under Regulation 1049/2001, given that communication of a document under the Regulation is equivalent to publication, whereas the document submitted to the Courts and transmitted to the applicant can only be used for the purposes of the Court proceedings.116 On the other hand, the judg­ ment in the ancillary case delivered on 9 June 2010 in which the General Court annulled the Commission decision refusing access to documents under Regulation 1049/2001 was not helpful for the applicant’s case. Although the latter requested the General Court to stay the proceedings in the main cases until it received the documents from the Commission, the General Court did not ­accede to that request and delivered its judgments on the main cases on ­13­  ­September 2010, considering that it could decide the main cases on the basis of the written and oral pleadings of the parties, and ruled partially in favour of the applicant. Another example of parallel requests can be found in the MyTravel v. Commission cases. In the main T-212/03 case, the applicant sought compensation for the damages117 it ­incurred by reason of the Commission decision blocking the Airtours/Fist Choice merger, which was found illegal and was annulled by the General Court in 2002 (see, also section 3.2.2.).118 In the ancillary T-403/05 case,119 the applicant sought annulment of the Commission decision

113 Case T-279/04, Éditions Odile Jacob v. Commission [2010] not yet published. 114 Case T-452/04, Éditions Odile Jacob v. Commission [2010] not yet published. 115 Case T-237/05, Éditions Odile Jacob v. Commission [2010] not published in the ECR, paras 8-14. 116 Ibid., paras 16-17. 117 Case T-212/03, MyTravel v. Commission [2008] ECR II-1967. 118 Case T-342/99, Airtours v. Commission [2002] ECR II-2585. 119 Case T-403/05, MyTravel v. Commission [2008] ECR II-2027.

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  16  Gunpowder for Court Battles refusing access to the documents it had asked for under Regulation 1049/2001 in order to rely on those documents in the main case. The applicant also tried a parallel avenue of ­obtaining the same documents by proposing to the General Court in the main case to ­invite the Commission to submit them as a measure of organization of procedure. The Gen­ eral Court did order the Commission to produce certain documents in the main case,120 whereas it only annulled the Commission decision adopted under Regulation 1049/2001 in respect of one document. However, the annulment was not helpful for the applicant in the main case, because the two judgments were delivered on the same day.121 It is arguable, account taken of the applicable rules and of Odile Jacob v. Commission and MyTravel v. Commission discussed above, that the applicant has a far better chance of ­obtaining access to documents by way of asking for access in the Court proceedings. U ­ nder Regulation 1049/2001, the interest of the party in obtaining access with a view to arguing its case before the Courts cannot be taken into account by the institution as an overriding pub­ lic interest. In contrast, when deciding on a proposal of inviting or ordering the institution to submit documents, the Courts take into account the relevance of the documents to the case and their utility for the party filing the proposal. Moreover, where it transpires that the party indeed needs those documents for arguing its case, the Courts weigh up the public or private interest in keeping the documents confidential and the need to accord the applicant a sufficient measure of procedural justice.122 Although requesting the documents from the institution under Regulation 1049/2001 may still prove useful in some situations, existing precedents discussed above show that challenging a decision which refused public access before the General Court could not be helpful for the applicants in the main cases. In fact, even where the decision refusing public access was annulled, that judgment was handed down too late to allow the applicants to use the documents in the main procedure. Besides, as was pointed out in Section 16.3.4 above, the mere fact that the General Court annuls the decision refusing access does not automatically mean that access will be granted in the next decision. At any rate, it is hard to conceive how an applicant could obtain broader access under Regulation 1049/2001 than the access available in the Court proceedings, since it is only in the latter case that its particular procedural interest can be taken into account. Another situation is where the applicant needs institution documents for a case before a ­national court where it may also be the defendant.123 Again, the principle applies that its 120 Case T-212/03, MyTravel v. Commission [2008] ECR II-1967, paras 129 et seq. 121 Interestingly, MyTravel did not appeal against the General Court’s judgment rejecting its application for damages, whereas it appealed with success against the access to documents judgment in T-403/05 (set aside by the Court of Justice on appeal in the C-506/08 P). It remains to be seen if the applicant obtains more documents after the latter judgment and – if yes – whether it requests a revision under Art. 44 of the Statute of the Court of Justice. 122 See, case law cited at supra note 81. 123 Case T-391/03 and T-70/04, Franchet and Byk v. Commission [2006] ECR II-2023; T-2/03 Verein für Konsumenteninformation v. Commission [2005] ECR II-1121.

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Viktor Łuszcz interest in obtaining the documents for arguing its case before the national court is ­irrelevant under Regulation 1049/2001.124 This also holds true where criminal charges are brought against the applicant on the basis of institution documents.125 As was explained in Umbach, by virtue of the principle of sincere cooperation, the national court could ­request the institution to produce all documents which it deems necessary for the purposes of deciding the case. However, it is still unclear how the litigant could receive these documents from the national court. In particular, national courts may well have a tendency not to disclose institution docu­ ments to the parties if the institution itself has refused access under Regulation 1049/2001. In Franchet and Byk, a French criminal court refused to give the applicant access to documents it received from the Commission. It even requested the General Court not to order their sub­ mission in the action for damages pending before the latter, as a measure of inquiry.126

16.7 Conclusion The above analysis shows that parties which are the main subjects of the administrative procedure are well placed to obtain all necessary documents for challenging the final act before the EU Courts. In fact, they are usually entitled to obtain all the important ­information underlying the contested decision already at the stage of the administrative procedure – either by virtue of field-specific rules or on the basis of the protection of the rights of the defence. In the case of fund-freezing measures, such communication takes place concomitantly with or as swiftly as possible after the adoption of the act. It is reason­ able to believe that institutions have a strong incentive to disclose the relevant documents, since the act may be annulled if a failure to comply with the relevant rules is found by the Courts – even if, as was the case in Kadi and Al Barakaat, the institution was obliged to communicate the relevant evidence only after the adoption of the act. Other parties, however, may face serious difficulties when seeking to obtain institution documents, even if they need those documents to bring a case against the institution. For ­instance, recipients of state aid and competitors of merging parties are not entitled to have access to documents under the relevant procedural rules. In addition, it follows from Commission v. Technische Glaswerke Ilmenau that in such a case obtaining access under Regula­ tion 1049/2001 is also problematic, insofar as it is presumed that the exception protecting the purpose of investigations applies. Rebutting this presumption might prove very difficult without knowing the actual content of the document in question. The upcoming Agrofert and Éditions Odile Jacob Judgments on appeal will most probably clarify whether the pre­ sumption only applies to ongoing administrative procedures. However, the Commission’s 124 Case T-110/03, T-150/03 and T-405/03, Sison v. Council [2005] ECR II-1429, para. 50; Case T-474/08, ­Umbach v. Commission [2010] not published in the ECR. 125 Case T-391/03 and T-70/04, Franchet and Byk v. Commission [2006] ECR II-2023, paras 138-139. 126 Order of 6 June 2007, T-391/03 and T-70/04 Franchet and Byk v. Commission, not published in the ECR.

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  16  Gunpowder for Court Battles legislative proposal for a recast Regulation 1049/2001 even seeks to eliminate the possibility of obtaining access by rebutting the presumption, notwithstanding the termination of the procedure, insofar as the recast Regulation would prohibit disclosure of documents relating to investigative procedures until the end of the Court review procedure or of the deadline open to initiate it. If adopted,127 the Commission’s proposal would mean that third parties not entitled to obtain access under field-specific rules could not receive documents before bringing an action before the General Court, since the only avenue remaining open to them would be access under the Rules of Procedure of the General Court. This would mean that pleas in law and arguments based on such documents could not be put forward at the stage of the application, but at the earliest at the stage of the applicant’s reply to the defence. Although there is case law applied by the General Court which requires the weighing up of the interest in keeping documents confidential, on the one hand, and the need to ­accord the applicant a sufficient measure of procedural justice, on the other, it still remains unclear how national courts will react to the stricter rules introduced by Commission v. Technische Glaswerke Ilmenau and possibly by the amendment of Regulation 1049/2001. There is a risk that national courts would interpret Technische Glaswerke Ilmenau as gener­ ally levelling out the extent of the access under various regimes and would consider that if the party does not have the right to obtain documents under field-specific rules and/ or the institution has refused access under Regulation 1049/2001, the national courts are not entitled to communicate the documents to the other party in the proceedings before them either. It is regrettable that the outcome in the Umbach case did not provide further clarification in this respect and the General Court only touched upon the issue of the pos­ sibility of requesting documents via national courts. Another interesting question is whether Regulation 1049/2001 could be amended so as to allow the institutions to take into account the fact that the applicant needs certain docu­ ments to argue his case before EU or national courts and that he would pledge to keep them confidential.128 The applicant’s interest in obtaining the documents would appear to have been considered – in very specific contexts – in Verein für Konsumenteninformation and in Bavarian Lager. However, the leading case law has stated that the interest in obtaining documents for the purposes of court proceedings is under no circumstances an ‘overriding public interest’ justifying disclosure (see, section 3.2.3.). Also, as the Commission rightly 127 The future of this amendment is however uncertain. The European Parliament proposed to delete it in its first reading report (T6-0114/2009) while some member states in the Council supported it, and even pro­ posed to enlarge its scope to materials belonging to infringement procedures. 128 Such a proposal was discussed during the legislative process leading up to the adoption of Regulation 1049/2001. The seventh amendment proposed in the Opinion given by the Committee on Petitions of the European Parliament sought the insertion of a paragraph in Art. 1 of the Commission’s Proposal to specify that ‘[a] petitioner, a complainant, and any other person, natural or legal, whose right, interest or obligation in a matter is concerned (a party) shall also have the right of access to a document which is not accessible to the public, but may influence the consideration of his/her case, as described in this Regulation and in implementing provisions adopted by the institutions’.

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Viktor Łuszcz pointed out in Éditions Odile Jacob, the public nature of access, equivalent to publication, under Regulation 1049/2001 implies that it must be more limited than access in the context of court proceedings. It is arguable that amending Regulation 1049/2001 in order to take on board such considerations – at least for documents pertaining to those administrative procedures which have already been closed – would level out, to a large extent, the scope of access under Regulation 1049/2001 and under the Rules of Procedure of the General Court and simplify the work of all actors involved. The institution would not need to give detailed justification why public access is impossible for documents that it would anyway furnish in the court proceedings – as the Commission did in Éditions Odile Jacob v Commission. The applicants would – if they file the request under the Regulation soon after the adoption of the act – ­obtain all or most documents that they can possibly access in the court proceed­ ings, and would thus be able to rely on them already while drafting the application. Such a solution would also be useful from the point of view of procedural economy, as the Gen­ eral Court would probably receive fewer cases where decisions adopted under Regulation 1049/2001 are challenged, insofar as applicants may often be satisfied with the documents they could receive from the institution upon pledging confidential treatment and indicat­ ing that those materials are necessary for court proceedings. Moreover, the General Court’s procedure would as a result be shorter in some cases, as no measure of organization of procedure or of inquiry would need to be adopted. Last but not least, in cases where the documents are requested for the purposes of national court proceedings, the institution concerned could directly identify the documents whose disclosure is justified by respect for the applicant’s procedural rights before the national court and it could take into account the confidential treatment – as opposed to the current situation where the institution has to examine whether or not the conditions for public access (equivalent to publication) are present. In addition, this would clearly result in a more transparent situation for national judges and litigants and would avoid confusion stemming from the different criteria to be applied under Regulation 1049/2001 and under national rules governing court procedure. Alternatively, an indication in the preamble of the recast Regulation 1049/2001 could send the message to the interested parties that the provisions regulating public access are not the only and arguably not the most suitable avenue for persons seeking access to docu­ ments in order to rely on them in court proceedings. If the current concept of public access which excludes taking into account the pledge of confidential treatment and the procedural rights of the applicant remains unchanged, persons seeking access to docu­ ments would have far more chance of obtaining them in the court proceedings. In that case, attention could be drawn to the relevant provisions of the Rules of Procedure of the General Court and to the possibility of requesting institution documents in proceedings before national courts – by way of emphasizing that the conditions of such access are ­independent of the application of Regulation 1049/2001.

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17

Union Citizenship: Fundamental Status and Fundamental Rights Analysis of the Recent Jurisprudence of the Court Related to Union Citizenship

The Rottmann, Zambrano, McCarthy and Dereci Cases Laura Gyeney* What an enormous number of swathings! Isn’t the kernel soon coming to light? (Pulls the whole onion to pieces) I’m blest if it is! To the innermost centre, it’s nothing but swathings-each smaller and smaller.Nature is witty! “Henrik Ibsen, Peer Gynt”1867

17.1 Introduction Perhaps it is not an overstatement to say that the institution of Union citizenship is one of the most contradictory concepts of the sui generis legal order of the European Union.1 Its paradoxical nature was greatly shaped by the respective activism of the Court, since more

*

Laura Gyeney Ph.D. is a Senior Lecturer at Pázmány Péter Catholic University Faculty of law and Political Sciences, ­Budapest (Hungary). She is the Deputy Head of the EU Law Department, the Director of Minority Law Protection Institute. She has a Master in Economics, Politics and Institutions of European and Global Relations at the University of Sacro Cuore, Milano (2001) and a Diploma in an introduction to English Law and the Law of the European Union, University of Cambridge (2006). 1 The very term “Union citizenship” goes back to one of the founding fathers of the European Union, Altiero Spinelli, who employed it for the first time in 1984 in the EP’s Draft Treaty Establishing the European Union. A. Von Bogdandy, M. Kottmann, C. Antpöhler, J. Dickschen, S. Hentrei & M. Smrkolj, ‘Reverse Solange – Protecting the essence of fundamental rights against EU member states’, 49 Common Market Law Review 2, 2012, p. 501.

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Laura Gyeney and more layers where added to the original, rather laconically worded concept introduced by Maastricht. In the beginning it seemed that the institution of Union citizenship will merely be of symbolic relevance,2 serving as a sort of remedy against the ills of the democracy deficit of the Union.3 With time, it became recognized as an institution contributing to a stronger protection of member states’ citizens against discriminatory acts of national authorities. Today, it is known as the fifth and most dynamically evolving fundamental freedom.4 In the motivation of its judgments the Court does not cease to stress its nature as the “fundamental status” of member states’ nationals, breaking away the concept from the mere notion of the “market citizen” and elevating it to a higher ­dimension “paving the way towards federalism”.5 In short, the “citizen” has started to form the European legal space.6 This is also substantiated by the recent case law of the ­Luxembourg court regarding the status of Union citizens and the efficient enforcement of rights derived therefrom, in particular its groundbreaking jurisprudence in the Rottman7 and Zambrano8 cases. It is undisputable that the cases cited above played a defining role in the development of European law. It was the Rottmann case where the Court examined for the first time the relationship between the withdrawal of member state citizenship and the citizenship of the Union. In this regard the Court held that the member states do not enjoy unlimited ­discretion (at least not in cases where the loss of national citizenship leads to a corresponding loss of Union citizenship). Without doubt, the above judgments of the ­Luxembourg forum – albeit not completely – succeeded in overcoming the previously strictly enforced requirement of a cross-border element.9 In the Zambrano Judgment the Court interpreted Article 20 TFEU10 on Union citizenship for the first time as an independent, autonomous source of rights, even in the absence of a cross-border element in the case. Based on the above legal basis, the judgment essentially guaranteed rights of residence and employment

2 S. O’Leary, ‘Putting Flesh on Bones of European Citizenship’, 24 European Law Review 1999, pp. 68, H. van Eijken & S.A. de Vries , ‘A new Route into the Promised Land? Being a European Citizen after Ruiz ­Zambrano’, 36 European Law Review, 2011, p. 704. 3 A. Wiesbrock, ‘Disentangling the “Union Citizenship Puzzle”? The McCarthy case’, 36 European Law Review, 2011, p. 861. 4 Editorial Comments, ‘Two-speed European Citizenship? Can the Lisbon Treaty help close the gap’, 45 Common Market Law Review 2008, p. 1. 5 This trend was further strengthened with the entry into force of the Lisbon Treaty, as the EU “places the individual at the heart of its activities by establishing the citizenship of the Union”( Charter of Fundamental Rights, Preamble, second paragraph.) 6 See Von Bogdandy et al. 2012, p. 502. 7 See Case C-135/08, Janko Rottman v. Freistaat Bayern, Judgment of the Court of Justice (Grand Chamber) of 2nd March 2010 [2010] ECR I-1449 8 See Case C-34/09, Ruiz Zambrano, Judgment of 8 March 2011 [2011] ECR I-0000. 9 Even if this requirement was only formally applied in several cases. 10 Art. 20 TFEU provides that ‘every person holding the nationality of a Member State shall be a citizen of the Union. Both Art. 9, Title II. of TEU and Art. 20-25, Section II: of TFEU contain provisions on Union citizenship. Art. 9. declares, that citizenship of the Union shall be additional to, and not replace national citizenship.

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  17  Jurisprudence of the Court Related to Union Citizenship to a Colombian couple in Belgium, whose children possessing Belgian and consequently Union citizenship had never left the territory of the country in question. Thus, the ­Luxembourg forum has arrived at the protection of the “central core” of citizenship rights derived from Article 20 TFEU, without requiring any cross-border elements in the facts of the case and no doubt providing a striking example for the way forward in the judicial development of European law. The above judgments were received well in scientific literature. Many authors find that with the Rottman and Zambrano Judgments of the Court (indeed, some would even add the McCarthy case to this collection), the development of Union law has arrived at a ­turning point.11 On a somewhat heart-rending note Eijken and De Vries claim that with the above judgments the ECJ is widening the material scope of Union citizenship and paving the way towards the “promise land” while at the same time it reinforced the constitutional nature of the institution.12 Kochenov takes an even bolder approach by asserting that Union citizenship – developed independently of the concept of national citizenship13 – will in the future focus on the protection of the rights of citizens who represent a real “Europeanness” through their values and their physical presence in the territory of the Union.14 The author optimistically claims that with the said judgments we have entered a new era of European federalism. Kochenov contends that it is not by chance that with the Zambrano Judgment the Court guaranteed residence and employment rights to Columbian, that is third country citizens in the territory of a member state.15 Azoulai takes a similar stance, interpreting the above judgments as an inclination of the Union to decide for the future autonomously about the conditions of membership in its community of citizens.16 However, there are some reserved approaches as well, appealing for a more moderate view of these judgments.17 These critical assessments are foremostly sceptical about the insufficient motivation of the Court substantiating the new approach taken in the Zambrano case.18 Finally, some

11 According to Guild it is remarkable that such an outstanding decision was delivered on 8 March which is generally celebrated as International Women’s Day. See E. Guild, ‘The Court of Justice of the European Union and Citizens of the Union: A Revolution Underway? The Zambrano Judgment of 8 March 2011’, . 12 See Eijken and De Vries, 2011, p. 721. 13 Ibid., p. 720. 14 D. Kochenov, ‘A real European citizenship, a new jurisdiction test, a novel chapter in the development of the Union of Europe’, 18 Columbia Journal of European Law 1, 2001, p. 58-63. 15 See Kochenov, 2001, p. 99. 16 L. Azoulai, ‘A comment on the Ruiz Zambrano judgement: a genuine European integration’ . 17 P. Craig, ‘The ECJ and ultra vires action: a conceptual analysis’, 48 Common Market Law Review 2011, p. 415.

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Laura Gyeney authors object not only to the methodology employed by the Court, but to the outright disrespect it has shown towards the positive law of the Union.19 Although we acknowledge the need for further discussion on various crucial points of these cases, we agree on many points with the above cited enthusiasm of certain authors, and we may safely say that the last one and a half decades of the Court’s case law, especially as regards the residence rights of third country family members (in particular in the Zu and Chen, the Eind, Metock and Zambrano cases) generally revealed a positive trend. A highlight of this trend is the Zambrano case, which, as already mentioned above, ­follows the line of argument rendered in the Rottman case and guarantees rights of family reunification to the third country parents of a Union citizen of Columbian origin in a purely internal situation. At the same time we cannot fail to recognize the fact that in the cases following the Zambrano Judgment, that is in the McCarthy and Dereci Judgments the Court – at first implicitly and then more openly – seeked to confine its previous, more liberal jurisprudence and assess the status of Union citizenship and the entitlements derived therefrom from the economic viewpoint of the free movement of persons. Through the assessment of the Court’s relevant case law, the present article attempts to answer the question: did the Court succeed in finding the core, or better yet, the substance of Union citizenship in the new, constitutionalized European legal order? Can the Union overcome the deadlock it has navigated itself into and definitively sever the institution of Union citizenship from economic aspects – aspects that are wholly unrelated to the substance of Union citizenship?20 Closely connected to the above is the question to what extent in its respective case law the Luxembourg forum relies on fundamental rights considerations serving as a basis for the legitimacy of Union citizenship, such as the requirement to respect family life as laid down in Article 8 of the European Convention on Human Rights (hereinafter referred to as ECHR) and Article 7 of the Charter of Fundamental Rights. Finally, we cannot avoid answering the question: what are the consequences of the Court’s new case law, that is, its readiness to “disregard the requirement of a cross-border element in certain cases”. Does it solve the problem of reverse discrimination, how will it affect third country nationals

18 Von Bogdandy et al. 2012, p. 504, N. Nic Shuibhne, ‘Seven Questions for Seven Paragraphs’, 36 European law Review 2011, p. 161. 19 Hailbronner and Thym overtly stated that “It is difficult to conceive of more drastic disrespect for written ­legal rules” as the Court showed in its Zambrano decision. K. Hailbronner & D. Thym, ‘Case Law, C-34/09 Gerardo Ruiz Zambrano v. Office National de l’emploi (Onem)’, 48 Common Market Law Review, 2011, p. 1260: “the above mentioned directive is not to be used in a situation similar to the main proceedings”. The secondary law, indeed, does not openly sanction the legalization of such illegal status by this means. However we should not forget the pursuit of the Union to eliminate illegal employment. 20 Kochenov 2001, p. 109.

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  17  Jurisprudence of the Court Related to Union Citizenship and last, but not least: in what way does it promote, or, on the contrary, does it obstruct the enforcement of the principle of legal certainty? The casuistic jurisprudence of the ECJ yields many dangers. National fora and the Union citizens themselves have no choice but to wait for the preliminary ruling of the Court before they can be certain of the scope of their entitlements. Therefore, the primary issue today is not whether Union citizenship is of symbolic value, but much rather where the limits of the expansive interpretation rendered by the Court may lie.

17.2 The Re-Modeling of the ‘Concept of Purely Internal Situation’ in the Court’s Case law Due to the complexity of the topic it is worth briefly clarifying the true significance of the Rottman and Zambrano cases. With its judgments described below, the Court – albeit only under certain circumstances – disregarded the requirement of a cross-border element and concentrated on the status of Union citizenship and the effective enforcement of the rights stemming therefrom. According to the classic requirement of a cross-border element: “citizenship of the Union, established by Article 17 EC, is not, however, intended to extend the scope ratione materiae of the Treaty also to internal situations which have no link with Community law.”21 In its case law, the Court consistently stressed the need for a cross-border element in order to be able to invoke Treaty rights deriving from Union citizenship,22 irrespective of the fact that this entails a previous or potential, future enforcement of free movement.23 Thus, in the Grunkin Paul case24 the Court pointed to possible difficulties arising from the ­divergent use of family names which the Union citizen may encounter when making use of free movement rights in the future. This approach however, was widely criticized by legal scholarship.25

21 See Case C-148/02 Garcia Avello v. Belgium, Judgment of 2 October 2003 [2003] ECR I-11613, para. 26. 22 M. Király, Az Európai Unió gazdasági joga I, ELTE Eötvös Kiadó, 2010, p. 88. 23 See Cases C-291/05 Eind, Judgment of 11 December 2007 [2007] ECR I-10719, C-192/05 Tas-Hagen and Tas, Judgment of 26 October 2006 [2006] ECR I-10451, C-499/06 Halina Nerkowska , Judgment of 22 May 2008 [2008] ECR I-3993, C-208/09 Sayn Wittgenstein, Judgment of 22 December 2010 [2010] ECR I-13693. 24 See Case C-353/06 Grunkin-Paul v. Standesamt Niebüll, Judgment of 14 October 2008 [2008] ECR I-7639. 25 M. Maduro, ‘The scope of European remedies: the case of purely internal situations and reverse discrimination’, in: C. Kilpatrick, T. Novitz & P. Skidmore (Eds.), The Future of Remedies in Europe, Hart Publishing, 2000, p. 117.

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Laura Gyeney 17.2.1   The Rottmann Case The Court first seemed to depart from its previous case law in the Rottmann case,26 where it had to take position regarding a German citizen possessing a German place of residence in the framework of a preliminary ruling. According to the facts of the case, Mr Rottmann, originally of Austrian nationality, made use of his rights of free movement and settled down in Germany. Here, he applied for naturalization but did not make mention of the fact that he was subject to criminal proceedings in Austria. After the German authorities were informed about the arrest warrant, they withdrew the naturalization on the grounds that Mr Rottmann obtained German citizenship by deception. However, the problem was that due to his German naturalisation, Mr Rottmann also lost his Austrian citizenship and consequently, his status as union citizen, a status that would have enabled him to travel to Germany and establish himself there. Instead of taking the easy way out, the ECJ decided not to make reference to the fact that Mr Rottmann had previously made use of his rights related to free movement, which in turn made it possible for him to obtain German citizenship. The Court much rather stressed that the decision of the national authority to withdraw the national citizenship may affect Mr Rottmann’s status as a Union citizen27 as well as the rights stemming therefrom, which falls “by reason of its nature and its c­ onsequences” within the ambit of ­European Union law.28 Therefore, based on the Rottmann Judgment, all national measures may come under scrutiny which may result in the loss of Union citizenship in the meaning of Article 9 TEU, as all such facts by reason of their nature and consequences come within the scope of application of Union law.29 In situations falling within the ambit of Union law, national rules must comply with the law of the European Union, even if rules related to the withdrawal of national citizenship fall under member state competence.30 In the concrete case, the Court found that the deprivation of citizenship for reasons of 26 See Eijken and De Vries 2011, pp. 711-712, Wiesbrock 2011, p. 866, Á. Mohay, ‘A Rottmann-ügy. Újabb adalékok az uniós polgárság és a tagállami állampolgárság összefüggéseihez’,2 Jogesetek magyarázata, 2011, p. 57. 27 It is not the first time that Union citizenship was designated a fundamental status by the Court in its case law. The Court declared it for the first time in its famous Grzelczyk Judgment related to obtaining minimum subsistence allowance. Union citizenship is destined to be the fundamental status of nationals of the member states, See Case C-184/99 sz. Grzelczyk, Judgment of 20 September 2001 [2001] ECR I-6193, para. 31. 28 See Rottmann Judgment, paras 42-43. 29 If the court had decided in the case at hand that the situation did not fall under the scope of EU law, it would have essentially enabled the member states to apply their national law, by disregarding EU law concerning Union citizenship. 30 The legal reasoning underlying the Rottman case was based on the well established approach elaborated in the Micheletti case. The Court in this case only stated that it is not permissible for the legislation of a member state to restrict the effects of the grant of the nationality of another member state by imposing an additional condition for recognition of that nationality with a view to the exercise of a fundamental freedoms provided for in the Treaty.

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  17  Jurisprudence of the Court Related to Union Citizenship deception was in accordance with Union law, since the deprivation at hand could not be considered an ­arbitrary act. At the same time, the Court declared that the proceeding national court when assessing the decision on the withdrawal of naturalization must take into consideration the consequences the decision entails for the legal status of the affected person under Union law in the light of principle of proportionality.

17.2.2    The Ruiz Zambrano Case 17.2.2.1   The Facts of the Zambrano Case Following along the path struck in the Rottmann case, the Court in the later Ruiz ­Zambrano case did not insist on “creating” a cross-border element. The case referred for a preliminary ruling concerned a decision of the Belgian authorities rejecting the application for residence of a Columbian couple, Ruiz Zambrano and his wife and the refusal to recognize Mr Zambrano’s entitlement to unemployment benefit. According to the facts of the case Mr Zambrano and his wife arrived in Belgium in 1999 together with their son, where they applied for refugee status. The Belgian authority denied their request and issued a decree obliging the family to leave the territory of the state, which – with due regard to the ongoing civil war in their home state of Columbia – also contained a clause of non-refoulement. Thus, the couple remained in the territory of Belgium without a valid residence permit or work permit in said state. Meanwhile, Mrs Zambrano gave birth to two other children who, thanks to the Belgian rules aimed at preventing statelessness were granted Belgian citizenship, and in consequence, also Union citizenship. Mr Zambrano namely – with due consideration to the generous Belgian rules – d ­ eliberately failed to register his children at the consulate of his country of origin, while he meticulously followed the procedure based on which his children acquired B ­ elgian citizenship.31 Meanwhile, Mr Zambrano became unemployed. His application for unemployment benefit however was refused due to lack of entitlement. Mr Zambrano contested the above decisions on the grounds that he is the direct relative in the ascending line of two Belgian minors, that is, two Union citizens. In its reference for a preliminary ruling the Brussels Employment Tribunal asked the Court whether the above case falls under the scope of Union law even though the infants possessing Union citizenship have never exercised of their rights of free movement?

Under this approach, international law ought to recognize that the term of the genuine link between the state and the citizen is outdated, as EU law has overridden the regional international legal content of the term. See in detail: M. Szabó, ‘The EU under Public International Law: Challenging Prospects’, in: Barnard & Catherine, The Cambridge Yearbook of European Legal Studies, Vol. 10, Hart Publishing, 2007-2008. 31 Under Colombian law, children born abroad acquire nationality only when their parents actively register with the embassy; if the parents had opted in favour of registration, the unconditional Belgian rules on the prevention of statelessness would not have applied. See Hailbronner & Thym 2011, p. 1254.

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Laura Gyeney 17.2.2.2   The Court’s Ruling Delivered in the Zambrano Case In the grounds for the ruling the Court made clear that directive 2004/38/EC is not ­applicable to the case. Article 3 paragraph 1 thereof is namely only applicable to those Union citizens who move to a member state or reside in a member state of which they are not citizens. Therefore, the Court made no attempt to discern at least a weak crossborder element in the facts of the case. Hailbronner, Thym and Wiesbrock found that such a far-fetched, albeit possible element would be the fact that the family’s return to Columbia could pose a possible future obstacle to the free cross-border movement of the children.32 In light of the jurisprudence of the Court however, this solution does not seem well-founded due to the argument’s hypothetical nature.33 In lack of a cross-border element the Court – stressing the fundamental nature of the ­legal status of Union citizenship – focused on the consequences of the application of the relevant national provisions for the efficient enforcement of Union citizens’ civil rights. According to the logic followed by the Court, the expulsion of Mr Zambrano from the territory of the state and denying him a work permit would deprive his children of Belgian citizenship of the enjoyment of rights afforded to them under Union law. It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, in fact, be unable to e­ xercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.34 In line with the grounds of the judgment, all national measures which have the effect of “depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union”35 are incompatible with Article 20 TFEU regulating the legal status of Union citizenship. Thus, the Court 32 Wiesbrock 2011, p. 866. A. Lansbergen & N. Miller, ‘Court of Justice of the European Union Court of Justice of the European Union, European Citizenship Rights and Internal Situations: an Ambiguous Revolution? Decision of 8 March 2011, Case C-34/09 Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEM)’, 7 European Constitutional Law Review, 2011, pp. 287-307. 33 See Case C-180/03 Moser v. Land Baden-Wwuemberg, Judgment of 28 June [1984] ECR 2539. In this case the (conflicts of law) principle based on potential future movement was refused by the Court. See Z. Asztalos, Miskolci jogi Szemle, 2. évf. (2. szám), 2007, p. 58. 34 See Zambrano Judgment, para. 44. 35 Ibid., para. 42.

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  17  Jurisprudence of the Court Related to Union Citizenship ­ erived this right – in lack of a cross-border element – directly and exclusively from d Article 20 TFEU.36 A serious defect of the above doctrine promoting “the genuine enjoyment of the substance of union citizens’ rights” (Zambrano test) however is that the Court imposes no restrictions on legal effects and does not define their scope. Unfortunately the Court fails to deliver a dogmatically sound reasoning and misses the opportunity to define the central core of citizens’ rights.37 The Court merely determines legal effects applicable in the case at hand, i.e. the rights of residence of the minors possessing Union citizenship and the parents’ right to residence and work. At the time of the ruling rendered in the Zambrano case the outcome of the then pending McCarthy and Dereci cases based on similar facts, was completely uncertain.

17.2.3   The McCarthy Case38 17.2.3.1   Facts of the McCarthy Case Shirley McCarthy was a British citizen who was born in the United Kingdom and never left the country. She also possessed Irish citizenship due to the fact that her mother was born in Ireland. In her home state she became dependant on social assistance. Following her marriage with a Jamaican citizen – who, according to British immigration law could not acquire residence rights – she applied for a passport in the hope of being able to rely on a cross-border element and ensuing beneficial Union citizenship rights. Later, Ms McCarthy and her husband sought leave to reside in the UK as a migrant Union citizen and her spouse on the basis of family reunification rules under Union law. The British authority denied their request on the grounds that the applicant does not “meet the conditions set forth by law”, that is, she is not an economically active migrant, nor a person able to support herself. Considering the fact that she draws social assistance and never exercised her right of free movement neither she, nor her husband – under derived entitlement – may enjoy the benefits conferred by Union law. In essence, the court referring the question for preliminary ruling wanted to know whether under Union law the mere fact of dual citizenship would render a person a beneficiary of such rights even if this person had never left the United Kingdom in her entire life.

36 Due to the lack of cross-border element, the judicial body implicitly did not refer to the 2004/38/EC directive and the family reunification rights of third-country relatives. 37 D. Kochenov, ‘On the Limits of Judicial Intervention: EU Citizenship and Family Reunification Rights’, 13 European Journal of Migration and Law, 2011, p. 451. 38 C-434/09, McCarthy case, Judgment 5 of May 2010.

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Laura Gyeney 17.2.3.2   The Ruling of the Court in the McCarthy Case In this case the Court reiterated the inapplicability of Directive 2004/38/EC,39 that is, where the Union citizen in question possesses dual citizenship, but never made use of her rights of free movement. As regards the applicability of Article 21 of the TFEU enshrining the free movement and residence rights of Union citizens in the present case, the Court referred to its case law ­according to which legal acts of the Union may not be applied to situations where all relevant facts are restricted to a single member state.40 At the same time, it also declares that the mere fact that Ms McCarthy had never made use of her rights of free movement does not mean that her situation falls under the scope of purely internal situations.41 At this point the Court makes reference to the Zambrano test, that is, the fundamental nature of Union citizenship and the doctrine of protecting the “substance” of Union citizenship rights.42 However, the Court found that there was no element of the case, which indicates that the national measure at issue in the main proceedings has the effect of depriving her of the genuine enjoyment of the substance of the rights associated with her status as a Union citizen, or of impeding the exercise of her right to move and reside freely within the territory of the Member States, in accordance with Article 21 TFEU.”43 The Court motivated its decision by the fact that “the failure by the authorities of the United Kingdom to take into account the Irish nationality of Mrs McCarthy for the purposes of granting her a right of residence in the United Kingdom in no way affects her in her right to move and reside freely within the territory of the member states, or any other right conferred on her by virtue of her status as a Union citizen.”44 At the same time, the Court attempts to delimitate the Zambrano and the McCarthy rulings by declaring that “by contrast with the case of Ruiz Zambrano, the national measure at issue in the main proceedings in the present case does not have the effect of obliging Mrs McCarthy to leave the territory of the European Union.”45 By applying the Zambrano test, the ruling – albeit not to the advantage of the applicants – seemed to reinforce the foundations of the new approach taken in the cases cited above, that is, the new concept of Union citizenship as a uniform legal status in the European legal space. 39 See McCarthy Judgment, para. 43. 40 See McCarthy Judgment, para. 45. The ambiguity of the test is a good illustration of the structure of EU legislation related to Union citizenship. While Art. 21 TFEU may only be applied in cross-border cases, this is not true for the applicability of the non-exhaustive list of Union citizenship rights enshrined in Art. 20 TFEU. Granting Mr. Zambrano’s right to reside has a closer link to Union citizenship rights in general, than the children’s rights to free movement and residence. 41 See McCarthy Judgment, para. 46. 42 See McCarthy Judgment, para. 47. 43 McCarthy Judgment para. 49. 44 See McCarthy Judgment. 45 See McCarthy Judgment, para. 50.

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  17  Jurisprudence of the Court Related to Union Citizenship By adopting the new doctrine the Court undoubtedly opened the door to the application of union law even in cases lacking a cross-border element. The main question however is how wide this door was opened. As we have seen, the Court applied the same test in both cases but arrived at different conclusions. Therefore, we may only determine that insofar as the Court does not interpret this concept unduly restrictively, it may undoubtedly contribute to widening the scope of union law.46 In the following we shall analyse the precise scope of the Zambrano ruling.

17.3  The Scope of Union Citizenship 17.3.1   The ‘Zambrano Test’ The very first question that arises is how the following requirement set forth by the Court should be interpreted: “depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.” Since the Zambrano and Rottman Judgments, we know that the genuine enjoyment of the substance of the rights is breached where the residence of the Union citizen in the territory of the Union (Zambrano) or the status of Union citizenship itself (Rottmann) is in jeopardy. Latter naturally involves the deprivation of the enjoyment of rights conferred by virtue of the status of Union citizenship, reducing this aspect to that of secondary relevance.47 As regards the rights conferred by virtue of the status of Union citizenship the Court in its decisions cited above – albeit tacitly – established a sort of hierarchy of norms, the apex of which is the right to free movement and residence within the Union.48 At first it seemed that the Court in its Zambrano Judgment effectively separated the rights of free movement and residence. However, in its judgments following the case in question the Court narrowed down significantly the precedent set in the Zambrano case by declaring that the involuntary exit from a concrete member state without leaving the territory of the Union does not deprive the Union citizen from enjoying the substance of Union citizenship rights.49 At the

46 Wiesbrock 2011, p. 867. 47 N. Nic Shuibhne, ‘(Some Of) The Kids Are All Right: Comment on McCarthy and Dereci’, 49 Common Market Law Review 1, 2011, p. 364. In case the Court-regarded essence of the Union citizenship rights are violated, there is indeed, no need to set forth cross-border elements. 48 However, in the Zambrano case Advocate General Sharpston added, that the Zambrano children have the right to residence, along with the right to diplomatic and consular protection in the member states, as well as the permissions granted in Art. 20(2) and Art. 24 TFEU. 49 Art. 21 TFEU “Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.”

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Laura Gyeney same time according to the wording of the primary law, residence rights are ­guaranteed within the territory of the member states, with no exceptions, not even for the country of origin. The approach described above, however tacitly, was already present in the ­McCarthy case, but acquired clear contours only in the Dereci case presented below.

17.3.2   The Dereci Case50 17.3.2.1   The Facts of the Dereci Case The Dereci case concerned the Austrian residence rights of third country family members of Union citizens, who had never made use of their free movement rights. The applicants’ situation differed significantly with regard to whether or not they entered the territory of Austria legally, the nature of their family ties to the Union citizen and finally, the fact of dependency and the degree of such dependency. In the instant cases the Austrian Ministry of the Interior denied applying the regulation similar to the Directive 2004/38/EC and related to the family members of Union citizens to the applicants of the instant cases, since the Union citizens in question had never made use of their rights of free movement. According to the referring court however, the question arises whether or not the test applied by the Court in the Zambrano case could be relevant in the instant cases. In my view, the statements contained in the opinion delivered by the Advocate General in the Dereci case shall have a significant impact on the future case law of the Court, therefore, a brief overview of the arguments calling for the consideration of individual situations seems appropriate. 17.3.2.2   The Opinion of the Advocate General Delivered in the Dereci Case As regards the applicability of the Zambrano test, Advocate General Mengozzi finds that neither of the five cases implies the risk that the Union citizens affected would be deprived of the enjoyment of the substance of Union citizenship rights. At the same time the Advocate General stresses the significance of individual situations, which must indeed be taken into consideration by the Court when assessing preliminary references. In the Advocate General’s view, the assessment of these individual situations shall yield an exact delimitation of the judgment rendered in the Zambrano case. At this point he gives a practical example based on a hypothetical scenario: “The answer to the first question referred for a preliminary ruling would be the same if certain factual circumstances were different. For example, if Mrs Dereci were, for whatever reason, unable to work and thus to provide for the 50 C- 256/11, Dereci case, Judgment 15 of November 2011.

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  17  Jurisprudence of the Court Related to Union Citizenship needs of her children, I believe that there would be a serious risk that the ­refusal to issue a residence permit to her husband and, a fortiori, his expulsion to Turkey would deprive the couple’s children of the genuine enjoyment of the substantive rights attaching to the citizenship of the Union by forcing them, de facto, to leave the territory of the Union. How could a mother of three young children without her own resources, despite the right of residence in Austria which she enjoys by virtue of her nationality, take care of her children if she is unable to work and, therefore, also unable to settle permanently in another Member State with her family members?51 Thus, in his opinion, Advocate General Mengozzi ascribes a great significance to the consideration of the individual circumstances by the Court in each and every case. Furthermore, in his opinion he gives a quite wide interpretation of the concept of dependency, including both economic, legal and administrative assistance and emotional care. At the same time he points out that the present case law of the Court is not at all satisfactory from the point of view of legal certainty.52 17.3.2.3   The Ruling of the Court Similarly to the Advocate General’s opinion and along the lines of the McCarthy Judgment the Court first refers to the inapplicability of Directive 2004/38/EC in the case. Second, it reinforces its ruling in the McCarthy case, according to which “the situation of a union citizen who, like each of the citizens who are family members of the applicants in the main proceedings, has not made use of the right to free movement cannot, for that reason alone, be assimilated to a purely internal situation.”53 At the same time it laid down the theoretical possibility of applying the Zambrano test by stating: Article 20 TFEU precludes national measures which have the effect of depriving union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status.54 As regards the actual application of the test, the Court no longer concealed in the Dereci Judgment what it tried to hide in the McCarthy case. In order for the test to apply, there must be a “situation in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole”.55 51 52 53 54 55

Mengozzi opinion, para. 47. Mengozzi opinion, para. 49. See Dereci Judgment, para. 61. Dereci Judgment, para. 64. See Dereci and others Judgment, para. 66.

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Laura Gyeney The Court goes on by stating: Consequently, the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.56 At this point the Court also takes a stance on the question of the right to family life, notwithstanding the fact that its position is less than positive. Similar to the opinion delivered by Advocate General Mengozzi, the Court makes reference to the prohibition of widening the scope of Union competences enshrined in Article 51 paragraph 2 of the Charter and advises the referring court to first, before assessing the applicability of the requirement of the respect for family life, determine whether or not the situation of the applicants in the main proceedings falls under the scope of Union law. At the same time, it draws the attention of the member states to the fact that should the facts of the case not fall under the scope of Union law, as signatory parties they are nevertheless bound by the ECHR and must respect the right to respect for private and family life guaranteed under Article 8 of the Convention.57 In sum, the Court in the Dereci case made a clear distinction between the involuntary exit from the territory of the Union and the country of origin (a doctrine which had already been, although not expressly, but tacitly present in the McCarthy case), delimitating the consequences of its case law regarding residence rights. At the same time, in the light of the Dereci ruling it is worth examining the judgments of the Court presented above, in particular its ruling in the McCarthy case with due regard to the applicability of the aspects contained in the opinion delivered by Advocate General Mengozzi. In the following I shall focus on the complete analysis of the case as well as on the possible effect the Advocate General’s opinion on the concept of dependency would have had on the ruling, had the Court followed this interpretation.

17.3.3   The Evaluation of the Court’s Zambrano and McCarthy Rulings in Light of the Judgment Rendered in the Dereci Case As we have seen, according to the Dereci Judgment, the expulsion of family members only affect the substance of Union citizenship rights in case the Union citizen is de facto forced 56 Dereci and others Judgment, para. 68. 57 Dereci and others Judgment, para. 73.

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  17  Jurisprudence of the Court Related to Union Citizenship to leave the territory of the Union. However, in the view of the Court, the applicants of the McCarthy and the Dereci cases were not faced with such a risk, as they were free to make use of the advantages inherent in their free movement rights. At this point, the question arises: did the Zambrano family really have the possibility to move to another member state?58 Unfortunately, this question was not posed in the course of the proceedings, therefore, it is difficult to answer it in hindsight. What is certain, is that in the Zambrano case the entire family could acquire residence rights in Belgium, that is, the territory of the country of origin, whereas Ms McCarthy was left with merely three alternatives. Firstly, she had the choice of remaining in the United Kingdom without her husband (which poses serious problems from the aspect of family life, we shall return to this point below, in detail), second, she could move to another member state, and finally, she could decide to leave the territory of the Union and settle down in Jamaica with her spouse. As regards the McCarthy ruling, it is incomprehensible why the Court arrived at a significantly different conclusion than in the Zambrano case. It is possible that the Court’s bias towards children (see Zambrano and García Avello cases) led to a different outcome in the McCarthy case, since in the latter case it was “merely” a spouse and not the couple’s children who attempted to invoke rights. Even if this were the case, it is important to note that it is not the McCarthy case which could serve as an appropriate backdrop for such a “value based” decision. For the sake of completeness it is worth noting that although the Advocate General’s opinion and the judgment itself merely mention Ms McCarthy and her husband, it is apparent from the Court’s files59 that Ms McCarthy was raising three children, including a disabled, dependant child. In contrast, both the opinion and the ruling make reference to the fact that Ms McCarthy draws social assistance. Neither document however, makes mention of the nature of this assistance, or more precisely, the question whether Ms McCarthy receives such assistance as a disability care fee. Unfortunately, the documents do not shed light on the question whether or not it was the disability of her child that rendered Ms McCarthy unable to pursue a gainful employment, which would have allowed her to assume the more advantageous status of an economically active citizen under Union law. In this 58 In accordance with Art. 6, para.1 of 2004/38/EC, Union citizens shall have the right of residence in the territory of another member state for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport, para. 2 of Art. 6 applies this right to family members in possession of a valid passport who are not nationals of a member state and are accompanying or joining the Union citizen. The Zambrano parents, Mr McCarthy and the Dereci case applicants potentially all fall under this category. Since the Metock Judgment, there is no further requirement for previous legal residence in the EU. This would provide great opportunities for every family to set up a business or becoming employed, which would ensure a long-term residence in the host country. 59 Para. 8. Court of Appeal, Shirley McCarthy v. Secretary of State for the Home Department (2008) EWCA Civ 641.

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Laura Gyeney regard another important question is also left unanswered, that is, in what way this inactive status actually impeded her “free movement” to another member state. In theory, Ms McCarthy is free to move to another member state, however, in practice this is much more problematic than it is presumed by the Court. The statement therefore – as presented by the national court – according to which there is no element of the facts of the case which would lead to the conclusion that Ms McCarthy was impeded in making use of her rights of free movement, seems flawed. The concept of the different forms of dependency referred to by Advocate General Mengozzi will in the future allow for more a circumspect balancing of all relevant elements of the case, even if in the given case the Court found that this did not lead us closer to the disclosing the substance of Union citizenship rights.60 As far as the methodology employed by the Court is concerned, it seems problematic that it makes categorical factual statements in the reasoning of both the Zambrano and the McCarthy cases. In the former case, to the benefit of the applicant, in the latter, to its detriment. However, it must be pointed out that this approach is misguided in both cases. In accordance with Article 267 TFEU setting out the framework of the preliminary ruling procedure the Court should leave it to the national forum to “supply” the facts. Should it nevertheless engage itself in such “risky business”, its assessment must cover all facts – such as those mentioned above – that are relevant to the case. What is more, with this methodology the Court actually assumes a role that was never and could never have been the intention of the Union legislator. This way namely, the Court could function as a “lower court” supplying and meticulously evaluating the facts of the case, without however being in full possession of all relevant facts.61 At the same time the Court could proceed as a sort of constitutional court, embedding the factual questions thus gleaned into the already far too elaborate matrix of primary law.62 To sum up, the application of the Zambrano test along the very narrow lines of the M ­ cCarthy and Dereci Judgments leaves us with the well-established requirement of a cross-border element – at least for those applicants who can actually rely on such an element. Even if we accept that the applicants of the McCarthy and Dereci cases have a real alternative to move to another member state – thus breathing life into their Union rights related to free movement (see, Akrich case) the question arises, is it really worth motivating Union citizens to enforce their rights in such an artificial way. And is it really worth continuing to beguile ourselves by thinking that – from the point of view of the applicability of Union rights – there is a defining difference between moving to another member state for a short period

60 Supra note 53, Opinion of the Advocate General in the Dereci case, para. 47. 61 See the reasoning in the McCarthy case, where the Court ‘forgot’ about the peresence of the children and also failed to answer the relevant questions regarding dependency. 62 Shuibhne 2011, p. 371.

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  17  Jurisprudence of the Court Related to Union Citizenship of time and for the sole reason of exploiting Union citizenship rights and between staying in the country of origin and not making use of the right to free movement. This gives rise to a number of other questions, for example, how long does the Union citizen have to stay away from his or her country of origin in order to be able to rely on Union law? Are the three months set forth under the directive sufficient or must it be a longer period of time? In light of the McCarthy and Dereci cases, sooner or later the Court will be bound to answer these questions.

17.4 Fundamental Rights? Guaranteeing the Respect for Family Unity in the Light of Union Citizenship Evidently, a basic consideration underlying the Zambrano, McCarthy and Dereci cases is the protection of family unity. The duty to respect family life as a requirement of protecting fundamental rights is enshrined in both Article 7 of the Charter of Fundamental Rights and Article 8 of the ECHR. In view of these legal bases, it seems surprising that there is no reference to the protection of fundamental rights or the Charter63 itself in the Zambrano and McCarthy Judgments, notwithstanding the fact that the Advocate Generals included these in their opinions, ­indeed, the referring court in the Zambrano case even included these in its questions.64 As regards the right to family unity under Union law the opinions delivered by the Advocate Generals in the Zambrano and McCarthy cases are consistent, both yielding a negative outcome in this aspect. In her opinion delivered in the McCarthy case, Advocate General Kokott clearly states: in lack of the applicability of Union law fundamental rights considerations may be enforced by the national courts themselves or, incidentally, by the European Court of Human Rights.65 Advocate General Sharpston in her opinion on the Zambrano case on the other hand embarks upon a lengthy analysis of the correlation between fundamental rights guarantees under Union law and the issue of competences.66 According to her opinion, in case the EU possesses either exclusive or shared competences in a given area of law, Union fundamental rights protection must be guaranteed to Union citizens even in cases where the competence at issue had previously not been exploited.67 Still, she 63 Wiesbrock 2011, p. 869 In this case, the lack of the reference to fundamental rights is acceptable, as the Charter of Fundamental Rights was not binding at the time. 64 The implicative forum questioned the applicability of the Charter’s Arts. 21, 24 and 34. See Zambrano Judgment, para. 35 65 See Opinion of General Advocate Kokott, para. 60. 66 The opinion focuses on the Court’s references to fundamental rights in the Charter. Mentioning the term ‘fundamental law’, 101 times clearly indicates the same. On the contrary, the Court mentions the expression only 4 times, but only repeating the applications on the preliminary ruling of the Belgian Court. See Hailbronner & Thym 2011, p. 1255. 67 Opinion of General Advocate Sharpston, para. 163.

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Laura Gyeney concludes her arguments with a laconic, yet meaningful point that at the time of the facts relevant to the instant case the Union right to the respect for family life was not invokable.68 The opinion delivered by Advocate General Sharpston sheds light on the delicate and complicated nature of the issue. Von Bogdandy and his co-authors give a good illustration of the problem by stating: “Linking union citizenship with EU fundamental rights is a seasoned project”.69 Indeed, the fundamental rights protection of family life is not bereft of antagonism considering the context of migration. The Court first acknowledged the fundamental right to family life as forming part of the general principles of Union law in the Carpenter case.70 In doing so, it relied on the case law of the European Court of Human Rights.71 However, instead of referring to the fundamental right of family life, in its judgments following the Carpenter case, such as the MRAX, Baumbast and Metock rulings the Court attempted to employ sui generis Union law solutions to guarantee the right to family unity for the benefit of Union citizens. The preference of the Court to apply sui generis solutions is presumably based on practical considerations.72 Should the Court invoke fundamental rights to substantiate the entry and residence rights of third country family members of Union citizens, following this logic, the same rights would have to apply to the family members of third country citizens living and residing within the territory of the Union. However clear and simple this argument would be, it would stand in clear contrast with the previous case law of the Court, in particular its ruling on the annulment of the Directive of family reunification.73 This approach is vividly illustrated by the Zambrano case in which, as I have already mentioned, the Court made no reference whatsoever to the fundamental requirement of the respect for family life. Instead, it guaranteed the protection of family unity within the territory of the country of origin under the framework of “the effective enjoyment of Union citizenship rights”. This approach raises particular concerns in light of the recent case law of the Strasbourg court, not to mention the prospect of the accession of the Union to the Convention. Whereas the Convention and the Court’s earlier case law was far from being

68 In her opinion Sharpston also denies that her suggestion would have far-reaching consequences on the federal balance, or, that in the given case the EC should adopt it. In order to do so, it is not just the case law that must improve, but the member states themselves should make straightforward political declarations on the importance of the role of fundamental rights in the EU. See Sharpston opinion, para. 173. 69 Von Bogdandy et al. 2012, p. 505. 70 For a comprehensive assessment on the general principles of EU law, see M. Szabó, ‘Általános jogelvek a nemzetközi bíróságok és az Európai Bíróság joggyakorlatában’, 12 Európai Jog 2, pp. 26-34. 71 What is more, the EC protected the applicant’s family life by the means of freedom of services, in a position which was basically “purely domestic”. 72 See Costello, p. 612. 73 See C-540/03. Parliament v. Council, Judgment of 18 December 2006. (EBHT 2006, I-5769. o.)

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  17  Jurisprudence of the Court Related to Union Citizenship “child-sensitive”, it is also apparent that the recent case law of the Strasbourg Court takes the interests of the child more and more into consideration. This development is also reflected in the recent Nunez v. Norway Judgment74 in which the Court – departing from its earlier stance75 – takes due consideration of the interests of the child when assessing social and individual interests. According to the facts of the case, a Dominican woman arrived in Norway as a tourist in 1996. She was expelled from the country for theft with the restriction that she may not return to Norway for two years. However, four months after the said decision she nevertheless returned with a fake passport and married a Norwegian citizen. Shortly afterwards the marriage was dissolved. Finally, the woman established a partnership with a Dominican man settled in Norway and the couple had two children. The applicant pleaded – with reference to Article 8 of the Convention – that the order expelling her from Norway and impeding her reentry into the country for a period of two years infringed her right to family life, since it would effectively result in separating her from her underage children. Notwithstanding the fact that the woman undoubtedly breached Norwegian immigration law and could not reasonably count with acquiring residence rights in the country, the ECHR reached the conclusion that the expulsion of the mother from the territory of the country would be clearly detrimental to the children’s interest.76 If we were to apply the same reasoning to the Zambrano case, it would be obvious that the expulsion order issued by the Belgian authorities infringed Article 8 of the Convention and the fundamental right to the respect for family life which forms part of the general principles of law. Were we to further consider Article 24 paragraph 2 of the Charter according to which “in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration”, it would be even more surprising why the Court did not take fundamental rights aspects into account in the aforementioned case. As far as the outcome of the Zambrano case is concerned, this cannot be deemed problematic, since family unity was guaranteed on the basis of residence rights pertaining to Union citizens. It was all the more problematic in the McCarthy and Dereci cases. As already mentioned above, the McCarthy Judgment unfortunately contained no reference to the rights related to the respect for family life. In the Dereci case however, the Court – in line

74 Nunez v. Norway, ECHR (2011) App. No. 55597/09, Judgment of 28 June 2011. 75 Darren Omoregie and others v. Norway, ECHR (2008), App. No. 265/07, Judgment of 31 July 2008. 76 Considering the children’s strong and long-term bond to their mother, the decision awarding custody to their father, the stress experienced and the lengthy period of time, while the authorities were rendering decisions about the applicant’s expulsion and on the denial of her re-entry, and also taking into account the exceptional circumstances of the case, the Court concluded that expelling the applicant would be unfavourable to the interest of the children. Mirtha Ledy de Leon Nunez v. Norway case no. 55597/09, paras 81-84.

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Laura Gyeney with the opinion delivered by Advocate General Mengozzi – advised the national forum to assess as a preliminary point whether or not the facts of the given case fall under the scope of Union law.77 Thus, leaving it up to the national courts to decide whether or not the given case comes under the scope of Union law the Court also declares that the fulfilment of the requirements under Article 7 of the Charter may only be examined under the special circumstances where the Zambrano test may be applied, thereby excluding the cases of purely internal situations. Article 7 of the Charter therefore does not bind the member states in the very cases where the possibility of a reference to human rights would be particularly pressing.78 Whereas in cases where the applicability of Article 7 may be determined, such a reference seems moot, since the infringement of the substance of Union citizenship rights had already been ascertained.79 Von Bogdandy and his co-authors offer a remedy to this dogmatically unsound situations and propose the application of the so-called “reverse Solange” doctrine in order to ensure the enforcement of the essence of fundamental rights. According to this proposal, in cases falling outside the scope of application of the Charter of Fundamental Rights, Union citizens could generally not rely on Union fundamental rights as long as the member states in question respect the essence of fundamental rights – the fact that they do, must be presumed. Should this presumption be rebutted, in line with the case law introduced by the Ruiz Zambrano case the substance of Union citizenship rights may be individually enforced before court. The co-authors argue that on the basis of Article 2 TEU the essence of fundamental rights has become a fundamental precondition to the exercise of public power in the European legal space. This approach is based on Article 2 TEU according to which the EU is founded on certain values, among others the “respect for human rights”. This requirement sets a standard which applies to all forms of exercise of public power in the European legal space, be it on the side of the EU or the member states.80 The question arises: what does the “respect for human rights” entail? According to the text, the values protected under Article 2 TEU are said to be “common to the Member States”. In the co-authors’ view, the best way to find the common denominator is by clinging to the concept of the essence of fundamental rights, as it has become part of the ordre public in the European legal space.81

77 See Dereci Judgment, para. 72. 78 Anja Lansbergen, ‘Case Summary and Comment: Case C-256/11, Dereci and others v. Bundesministerium für Inneres’, . 79 The Court however reminds us, that every member state is signatory of the European Convention of Human Rights, which in its Art. 8 grants everyone the right to respect for private and family life. See Dereci Judgment, para.73. 80 Art. 2 TEU does not include any restrictions similar to Art. 51 of the Charter of Fundamental Rights. 81 Von Bogdandy et al. 2012, p. 510.

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  17  Jurisprudence of the Court Related to Union Citizenship Even if we were to find that in our competence sensitive times such a conclusion would be premature,82 it is worth deliberating why a “value based” European space which relies so heavily on the protection of fundamental rights and endowing the status of Union citizenship with real substance in order to reinforce its legitimacy should fail to acknowledge the right to family unity in the country of origin as forming part of the substance of Union citizenship and force the Union citizen to choose between family life and the well established life in the country of residence. Moreover, the Court has on various occasions overstepped the magic line of demarcation in order to guarantee the right to family unity. It has done so first in the Carpenter case cited above, in order to protect the rights of an economically active citizen, and later, in the Zambrano case, for the protection of Union citizens’ rights. Currently, apart from the harmonization of certain aspects of immigration law, it is the prerogative of the member states to decide whether or not third country family members acquire the right of residence in their territory – at least, in cases where the family members of non-dynamic Union citizens are concerned. However, certain commentators find that there is no restriction upon the Union legislator to lay down the rules of family reunification regarding dynamic and non-dynamic Union citizens. This is all the more so, since Art. 79 para. 2 item a) contains an express authorization to regulate the conditions of entry and residence, including the rules of family reunification. According to Kochenov, the fact that the resolution of the reverse discrimination cases cited above is much less a problem of competences than that of a lack of political will, perfectly illustrates that the draft Directive on family reunification was originally intended to include non-dynamic Union citizens as well.83 Furthermore, the author contends that those opposed to harmonization are particularly wrong, for they assert the autonomy of the member states in the area of immigration law in a period of integration where the latter was significantly constricted due to the reinforcement of the internal market and the institution of Union citizenship.84 It is undeniable that its case law on family reunification concerning Union citizens who wish to make use of their rights of free movement the Court, under the motto of free movement, progresses further and further into areas which previously belonged in national competence. This development is well illustrated by the Metock case85 in which the Court 82 Therefore, authors emphasize that unlike Art. 6 TEU and the Charter of Fundamental Rights, this approach does not refer to the general acquis, and Art. 2 TEU merely underlines the essential content of the fundamental rights. 83 According to Kochenov: “A choice for the illusion of control prevails over the desire to ensure equal treatment for all EU citizens”-regardless if they had exercised their right to free movement.” D. Kochenov, ‘Rounding up the circle: The mutation of Member States’ nationalities under pressure from EU citizenship’, EUI RSCAS Paper 2010/23, p. 20-22. 84 Wiesbrock, however, emphasizes his severe doubts about extending the scope of the EU law regarding family reunification matters. Wiesbrock 2011, p. 870. 85 C-127/08 Metock and Others v. Minister for Justice, Equality and Law Reform case, Judgment of 25 July 2008.

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Laura Gyeney rewrote the requirement of previous lawful residence laid down in the earlier Akrich case giving the right to free movement and residence of Union citizens enshrined in Directive 2004/38/EC a very wide interpretation when it comes to them being joined by their third country family members. Indeed, in a “Citizens’ Europe” promoted under the Stockholm Programme86 the reverse discrimination against own citizens when compared with dynamic Union citizens or third country nationals is hardly arguable. As long as the member states fail to make a political commitment towards harmonization the problem of reverse discrimination as well as the uncertain case law of the Court is bound to prevail.

17.5 Conclusion The judgments referred to above concern the two most important aspects of the law on Union citizenship, on the one hand, the issue of the division of competences between the Union and its member states, and the division of labour between the Union legislator and those applying the law. Member states have always been very vigilant about the extension of rights related to Union citizenship. As regards the family reunification rights of dynamic Union citizens, i.e. citizens who make use of their right to free movement, the member states have in essence lost their regulatory powers. Similarly, more and more areas related to the entry and residence of third country nationals pertain to Union competence, while the corresponding discretionary powers of the member states in the field of migration issues are constantly receding. The competence remaining on the side of the member states is paradoxically the area related to the family reunification rights of their own, non-dynamic citizens. As a last fortress of national autonomy, Member States keep a tight grip on this area – and this puts the Luxembourg court in a difficult position. With the recent judgments of the Court, the law of the Union has arrived at a new point of development. The possibility is given for the integration project to leave behind the market-oriented perspective and move forward in the direction of the “citizens’ Union”. A direction where the exercise of family reunification rights of Union citizens is not dependent on the exercise of free movement. With the completion of the internal market and the reinforcement of Union citizenship as main targets of integration, the territorial fragmentation of the application of Union law seems unreasonable. For the main goal of the Union is exactly to overcome such territorial fragmentation and to develop “a substance” of Union citizenship which applies even to purely internal situations as a seminal step of judicial law-making.87 86 Council of the European Union, The Stockholm Programme: An open and secure Europe serving and protecting citizens, 5731/10, Brussels, 3 March 2010. 87 Von Bogdandy et al. 2012, p. 504.

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  17  Jurisprudence of the Court Related to Union Citizenship The judgment rendered by the Court in the Zambrano case undoubtedly points towards the above direction, even if the Court may be criticized for the lack of depth in its reasoning. However, with the McCarthy and Dereci Judgments it became clear that family reunification rights are much rather rights related to the free movement of persons, than elements of the status of Union citizenship. In the above-mentioned cases the judicial protection of the “essence of union citizenship rights” is essentially restricted to the prohibition of involuntary exit from the territory of the Union as a minimum ‘crisis’ requirement. It is also very telling that residence rights within the territory of the Union are not defined as positive rights by the Court. It is doubtful therefore that member state nationals may easily invoke Union law against their own state should their right to family life be infringed or should they fall victim to discrimination in the meaning of Article 18 TFEU. Thus, the approach of the Court ­described above continues to portray a Union based on economic foundations. The greatest flaw of the judgments cited however, is that they fail to clarify relevant terms in clear breach of the principle of legal certainty.88 Such fundamental issues as determining the situations where we can speak of purely internal situations may not be dealt with in a few short sentences. Thus, the Luxembourg forum, in clear neglect of the principle of legal certainty, continues to make the outcome of the different cases dependent on the balancing of individual aspects. In her article, Shuibhne issues a stern warning to the Court, which, however, is highly worthy of consideration. She finds that in case an area of law is almost impossible to explain or teach – such as Union citizenship – then that area is highly problematic.89 The picture presented by Shuihne is perhaps gloomier than the situation really is. What is certain, is that the case law of the court – as far as the judgments related to Union citizenship are concerned – is heading towards a “fact specific”, individualistic direction.90 This approach is in line with the case law of the Strasbourg court related to the individual claims based on Article 8 of the Convention, however, it is highly questionable in the case of a forum entrusted with the primary task of guaranteeing the unity and coherence of Union law.

88 It would not be the first example in the “history of the Court” for a decision to be ahead of its time, as was the case in the Zambrano ruling. Therefore, based on the above, certain commentators compare the Court’s legislation on Union citizenship to a pendulum – sometimes liberal, at other times swinging towards more moderate directions. While this may be very beneficial for some – such as the Zambrano couple – we also have to emphasize, that most of the times, others have to pay the price of the over-liberal decisions of the Court. See e.g., the Förster, McCarthy and Dereci cases. A. Tryfonidou, Family Reunification Rights of (­Migrant) Union Citizens: Towards a More Liberal Approach, p. 634. 89 Shuibhne 2011, p. 378. 90 Wiesbrock 2011, p. 873.

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18

The Personal Law of Companies and the Freedom of Establishment under EU Law

The Enthronement of the Country-of-origin Principle and the Establishment of an ­Unregulated Right of Cross-Border Conversion Csongor István Nagy* 18.1 Introduction The hostility between the conflicts rules on the personal law of companies and EU free movement rights has a rather long, 24 years old history. The first case on this question was Daily Mail,1 decided on 27 September 1988, while the saga seems to have found a berth on 12 July 2012 with the judgment of the Court of Justice of the European Union (hereinafter ‘CJEU’) in VALE.2 During these 24 years, the case law has gradually, step-by-step, dismantled the ‘real seat’ theory (the concept that the personal law of the company is the law of the country where it has its real seat), and gave ground to the incorporation theory (that is, the company’s personal law is the law of the country where it was established, i.e. registered).3 The CJEU performed this with guarded wording and tacit language; however, in VALE the Court made this explicit and treated the death of the ‘real seat’ theory as an accomplished fact.4 *

Doctor juris (Budapest), LL.M. (Budapest/New York), Ph.D. (Budapest), SJD (Budapest/New York). Associate professor at and head of the Private International Law Department of the University of Szeged (Hungary), associate professor at Budapest University of Technology and Economics (Hungary), and head of the International and EU Law Department of the István Bibó College of Law (Budapest) and visiting associate professor at the Sapientia University in Cluj-Napoca (Romania). The author was a visiting fellow at the British Institute of International and Comparative Law (London) at the time the paper was completed. Admitted to the Budapest Bar. Email: [email protected]. 1 Judgment of 27 September 1988 in Case 81/87, The Queen v. H. M. Treasury and Commissioners of Inland Revenue, ex parte Daily Mail and General Trust plc [1988] ECR 5483. 2 Judgment of 12 July 2012 in Case C-378/10, VALE Építési Kft, not yet published. 3 For a brief overview on the virtues and drawbacks of the incorporation and the ‘real seat’ theory see Ch.H.J.I. Panayi, ‘Corporate Mobility in Private International Law and European Community Law: Debunking Some Myths’, 28 Oxford Journals Law Yearbook of European Law 1, 2009, pp. 125-130. 4 Of course, this did not come as a surprise. See J. Armour, ‘Who Should Make Corporate Law? EU Legislation versus Regulatory Competition’, in: J. Holder & C. O’Cinneide (Eds.), Current Legal Problems 2005, Vol. 58, Oxford University Press 2006, p. 370 (“EU law is rapidly moving towards a framework within which companies will be both willing and able to locate their registered offices so as to secure a company law that is favourable to their ­requirements.”); H.C. Hirt, ‘Freedom of establishment, international company law and the comparison of European company law systems after the ECJ’s decision in Inspire Art Ltd’, 15 European Business Law Review 5, 2004, p. 1192.

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Csongor István Nagy The CJEU’s case law on the personal law of companies is part of a general trend of EU law whereby the country-of-origin principle is permeating into the domain of private law. Although at the outset this principle may have been considered as being applicable only to public law rules and requirements thwarting free movement (e.g. mutual recognition of technical standards),5 it gradually found application also in the ambit of private law. Today, the country-of-origin principle may ensure the (mutual) recognition of civil law rights, obligations, statuses, such as legal personality,6 surnames7 and the lack of noncontractual liability,8 acquired or gained in another member state. The country-of-origin principle gradually evolved from a public law connecting factor to a connecting factor under conflicts law. Nonetheless, although the country-of-origin concept may be plausible in public law, its direct extrapolation to private law seems to be an unwelcome move, since it disregards the complexity of civil law matters. For instance, it is noteworthy that the CJEU’s rulings on the personal law of companies apply only to intra-Union cases, and hence, cases involving a member state and a non-EU country are left untouched; that is, the ‘real seat’ theory may remain applicable regarding member state – non-member state relations. This bifurcation of the connecting factor is peculiar to the country-of-origin principle in conflicts law at large. The country-of-origin principle prevails only if the country of origin is a member state; if it is a non-EU country, the case does not come within the scope of the countryof-origin principle.9 This bifurcation of the applicable law, while acceptable in relation to public law requirements such as technical and professional standards, seems to be very unwelcome in the realm of private international law. This paper presents, from a critical perspective, the development of the CJEU’s case law on the collision between the personal law of companies and the freedom of establishment with special emphasis on the CJEU’s recent judgment in VALE. It is argued that this ruling treats the incorporation theory as ‘the law of the land’, putting an end to the explanation that EU law does not establish a connecting factor, the determination of which is a member state competence, but simply precludes some plights that frustrate the freedom of establishment. Furthermore, the case law on the personal law of companies is put in the context of the country-of-origin concept as a general and fundamental principle of EU law. It is argued that although the incorporation theory fits 5 See e.g., Judgment of 20 February 1979 in Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein [1979] ECR 649; Judgment of 26 June 1980 in Case 788/79, Criminal proceedings against Herbert Gilli and Paul Andres [1980] ECR 2071. 6 See “C. The CJEU’s case law on the personal law of companies and free movement rights”. 7 See Judgment of 2 October 2003 in Case C-148/02, Carlos Garcia Avello [2003] ECR I-11613; Judgment of 14 October 2008 in Case C-353/06, Grunkin-Paul [2008] ECR I-7639. 8 Judgment of 25 October 2011 in Joined Cases C-509/09 and C-161/10, eDate/Martinez. Not yet published. 9 See C.I. Nagy, ‘The Word is a Dangerous Weapon: Jurisdiction, Applicable Law and Personality Rights in EU Law – Missed and New Opportunities’, 8 Journal of Private International Law 2012, p. 293.

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  18  The Personal Law of Companies and the Freedom of Establishment better the system of the internal market characterised by free movement rights, as a general proposition, the categorical application of this principle to all fields of private law suppresses conflicts analysis and, as such, is a dubious d ­ evelopment. Conflicts problems should receive a conflicts law answer. The oversimplified application of the country-oforigin principle, though certainly warranted in the field of public law, does away with private international law problems without carefully e­ xamining and adequately solving them. Furthermore, it is also argued that in Cartesio10 and VALE the CJEU seems to have created an unregulated right of cross-border conversion. In Cartesio, the Court established a right of ‘departure’, i.e. companies have the right to move their seat to another member state in order to convert into the legal person of the receiving country, while losing their original legal personality. In VALE, the CJEU seems to have established a right of ‘arrival’, derived from the principle of non-discrimination. However, EU law prescribes only the theoretical possibility of conversion (‘departure’ and ‘arrival’), and leaves the technicalities of this conversion to national law; the dissolution in the member state of origin remains governed by the latter’s law. With this, the CJEU created an unregulated right of cross-border conversion, which, for the time being, operates largely in a legislative vacuum; hence, national courts bear a special responsibility. It is submitted that company conversions, especially cross-border conversions, raise complex issues to be settled in a complex legislative process and not in the courtroom. It would be welcome if the EU legislator could address the problem of cross-border conversions.

18.2  Extrapolating the EU Country-of-Origin Principle to Private Law The traditional playing field of the country-of-origin principle (or better known as the principle of mutual recognition) has been the domain of public law, especially technical, professional and other legal standards.11 However, this core principle of EU law has gradually permeated into the territory of private law and the concept of recognizing the country-of-origin’s technical standards was extrapolated to the realm of private law, entailing the application of the civil law of the country of origin. In Carlos Garcia Avello,12 Belgium refused to change, in accordance with Spanish customs, the surnames of the two children of a Spanish father and a Belgian mother. The children had dual citizenship. Under Belgian law, the children get the surname of the father, while 10 Judgment of 16 December 2008 in Case C-210/06, Cartesio Oktató és Szolgáltató Bt [2008] ECR I-9641. 11 See e.g., Judgment of 20 February 1979 in Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein [1979] ECR 649; Judgment of 26 June 1980 in Case 788/79, Criminal proceedings against Herbert Gilli and Paul Andres [1980] ECR 2071. See also, European Commission, ‘Communication from the Commission to the Council and the European Parliament on mutual recognition in the context of the follow-up to the action plan for the single market’, COM (1999) 299 final, 16 June 1999. 12 Case C-148/02, Carlos Garcia Avello.

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Csongor István Nagy under Spanish law the children obtain the first surnames of their parents. In essence, the CJEU, established that a dual citizen who is the national of two member states is entitled to choose a name that complies with the law or customs of either member state: the prohibition of discrimination based on nationality (Art. 18 TFEU) and the concept of Union citizenship (Art. 20 TFEU) preclude the member state from refusing to grant an application for a change of surname made on behalf of minor children resident in that State and having dual nationality of that State and of another Member State, in the case where the purpose of that application is to enable those children to bear the surname to which they are entitled according to the law and tradition of the second Member State.13 In Grunkin and Paul,14 another case concerning the surname of a child, the application of the country-of-origin principle to the rules on surnames was more patent. The child was a German national and was born in Denmark. According to Danish conflicts rules, due to his habitual residence in Denmark, the question of the surname was governed by Danish law15 and the name was registered in Denmark accordingly. Under Danish law, in case the parents did not have the same surnames, “an administrative change of [the] surname to one composed of the surnames of both parents joined by a hyphen” was allowed,16 and the surname registered in Denmark was Grunkin-Paul. Afterwards, the German authority refused to recognize this surname: Germany follows the principle of nationality as to the name of natural persons;17 as the child only possessed German citizenship, German law was applied, which provided that if “the parents do not share a married surname but have joint custody of the child, they shall, by declaration before a registrar, choose either the father’s or the mother’s surname”.18 The CJEU held that the German authorities have to recognize the surname (or to put it more generally: the civil status) acquired under the law of the country of origin (Danish law). In view of the foregoing considerations, the answer to the question referred to the Court must be that, in circumstances such as those of the case in the main proceedings, Article 18 EC [now Article 21 TFEU]precludes the authorities of a Member State, in applying national law, from refusing to recognise a child’s surname, as determined and registered in a second Member State in which the child – who, like his parents, has only the nationality of the first Member State – was born and has been resident since birth.19 13 14 15 16 17 18 19

Case C-148/02, Carlos Garcia Avello, para. 45. Case C-353/06, Grunkin-Paul. Case C-353/06, Grunkin-Paul, paras 11-14. Case C-353/06, Grunkin-Paul, para. 13. Section 10 EGBGB. Section 1616 BGB. Case C-353/06, Grunkin-Paul,para. 39.

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  18  The Personal Law of Companies and the Freedom of Establishment In eDate/Martinez,20 the CJEU applied the country-of-origin principle to the electronic (i.e. online) cross-border violations of privacy and personality rights. The judgment interpreted Article 3 of the E-Commerce Directive21 and, to put it in its simplest form, ruled that, in principle, the law of the member state where the service provider is established (provided it is established in the EU) shall be applied if it is more favourable to the service provider. Although Article 1(4) of the Directive provides that the “Directive does not establish additional rules on private international law nor does it deal with the jurisdiction of Courts”,22 it also goes on to say that “the provisions of the applicable law designated by rules of private international law must not restrict the freedom to provide information society services as established in this Directive”.23 Article 3(2) of the Directive provides that “Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State”. The CJEU held that the coordinated field covers private law, including the civil liability of the provider of information society services,24 and all measures that discourage the cross-border provision of the information society service qualify as a restriction. It amounts to such a discouragement if the service provider has to comply with stricter rules than in its country of establishment. The CJEU held that the free movement of services is not fully guaranteed if the service providers must ultimately comply, in the host Member State, with stricter requirements than those applicable to them in the Member State in which they are established. […] Article 3 of the Directive precludes, subject to derogations authorised in accordance with the conditions set out in Article 3(4), a provider of an electronic commerce service from being made subject to stricter requirements than those provided for by the substantive law in force in the Member State in which that service provider is established.25 The ‘status’ acquired under the country of origin was to be therefore recognised.

18.3 The CJEU’s Case Law on the Personal Law of Companies and Free Movement Rights In its country-of-origin case law, the CJEU advanced that it does not intrude into the domain of private international law, but in fact the country-of-origin principle, obviously

20 21 22 23 24 25

Joined Cases C-509/09 and C-161/10, eDate/Martinez. See Nagy, 2012, pp. 287-293. Directive 2000/31/EC, OJ 2000 L 178/1. Joined Cases C-509/09 and C-161/10, eDate/Martinez, para. 60. Directive 2000/31/EC, Recital 23. Joined Cases C-509/09 and C-161/10, eDate/Martinez, para. 58. Joined Cases C-509/09 and C-161/10, eDate/Martinez, paras 66-67.

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Csongor István Nagy and most cruelly devoured the choice-of-law problem. In the field of the lex personae of companies, the principle prevails that member states may adopt any approach as to the determination of the personal law of companies, as long as it is the incorporation theory. In these cases, at least until VALE, the CJEU expressly refused to intimate expectations as to choice-of-law rules; on the other hand, it was very categorical as to the plights it cannot tolerate:26 while conflicts rules on the personal law of companies obviously come under the legislative competence of the member states, EU law cannot tolerate plights where a company lawfully founded in one member state cannot exercise or is discouraged from exercising the freedom of establishment, whatever conflicts law reasoning underpins this conclusion. Conflicts rules on the legal person’s personal law may collide with EU rules on the freedom of establishment. Although, as noted above, these provisions, especially Articles 49 and 54 TFEU, do not contain direct requirements related to conflicts rules, they determine certain intolerable plights and consequences and these expectations of EU law certainly trigger implications for conflicts norms. However, the requirements entailed by the free movement rules are so tight that they seem to stifle the national competence in conflicts law. The cases that have reached the CJEU so far imply essentially two situations. In the first scenario, a company founded in one of the member states wishes to transfer its seat to ­another member state, while preserving its legal personality under the country of origin. Put more simply, in this scenario the company endeavours to ‘leave’ the country. The controversy arises from the decision of the member state of foundation to deprive the company of its legal personality (state of origin restrictions). In the second scenario, the company is established in one of the member states to which it has no real connection, whatever this may mean, and tries to operate in another country with which it – normally – has a close connection. Thus, in this scenario the company endeavours to ‘enter’ the country. Here, the controversy arises because the member state of recognition does not show too much hospitality; it does not recognize the legal personality of the company or ­restricts its recognition (host state restrictions).27 VALE fits mainly the second category: an ­Italian company wanted to ‘enter’ Hungary through converting into a Hungarian company; ­Hungarian courts refused to register it as the legal successor of the Italian enterprise, albeit under the law of the country of origin it was alleged to be in the course of severing from Italian law and moving to Hungary. 26 See R. Michaels, ‘EU law as private international law? Reconceptualising the country-of-origin principle as vested-rights theory’, 2 Journal of Private International Law 2006, p. 205. 27 These two plights were clearly distinguished in Judgment of 2 November 2002, in Case C-208/00, Überseering BV v. Nordic Construction Company Baumanagement GmbH (NCC) [2002] ECR I-9919, paras 61-66, and in Judgment of 30 September 2003 in Case C-167/01, Kamer van Koophandel en Fabriekenvoor Amsterdam v. Inspire Art Ltd [2003] ECR I-10155, para. 103.

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  18  The Personal Law of Companies and the Freedom of Establishment 18.3.1   State of Origin Restrictions: Transfer of Seat to Another Member State While Retaining the Original Legal Personality The first case involving a state of origin restriction was Daily Mail,28 where an English company intended to transfer its central management and control to the Netherlands due to tax considerations.29 Under English law, this pre-supposed the permission of the English revenue service, which, nonetheless, denied to authorize the transfer. In the absence of the permission the seat could have been transferred to the Netherlands only in case the company had been wound-up in England and re-established in the Netherlands (here re-establishing, in fact, means that the shareholders could establish a new company in the Netherlands). The CJEU held in its preliminary ruling that the English revenue service’s refusal to grant the permission was in compliance with EU law. Articles 49 and 54 TFEU, properly construed, confer no right on a company incorporated under the legislation of a Member State and having its registered office there to transfer its central management and control to another Member State.30 The reasoning of the Court was twofold. First, it stressed that the provision of English law-making the consent of the revenue service a prerequisite of the central management’s transfer imposes no restriction on the right of establishment, including the transaction contemplated by Daily Mail; the shareholders could still wind up the company in England and then re-establish it in the Netherlands.31 Second, “unlike natural persons, companies are creatures of the law and (…) creatures of national law”32 – this argument seems to suggest that legal personality is granted by national law and it is also the discretion of national law to revoke this status (i.e. national law determines the conditions that must be met in order to maintain such legal personality).

28 Case 81/87, The Queen v. H. M. Treasury and Commissioners of Inland Revenue, ex parte Daily Mail and General Trust plc. 29 “[T]he principal reason for the proposed transfer of central management and control was to enable the applicant, after establishing its residence for tax purposes in the Netherlands, to sell a significant part of its non-permanent assets and to use the proceeds of that sale to buy its own shares, without having to pay the tax to which such transactions would make it liable under United Kingdom tax law, in regard in particular to the substantial capital gains on the assets which the applicant proposed to sell. After establishing its central management and control in the Netherlands the applicant would be subject to Netherlands corporation tax, but the transactions envisaged would be taxed only on the basis of any capital gains which accrued after the transfer of its residence for tax purposes.” Para. 7. 30 Para. 25 and answer to question 2. 31 Para. 18. 32 Para. 19.

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Csongor István Nagy The CJEU, 20 years after Daily Mail, faced another ‘transfer of seat’ case in Cartesio,33 where it confirmed the old findings.34 The Court re-affirmed that since legal persons are the creatures of law, it is the national law that creates and terminates them. “­Naked I came from my mother’s womb, and naked shall I return. The Lord gave, and the Lord has taken away; blessed be the name of the Lord.”35 This approach implies that if national law makes national legal personality conditional on certain requirements (for instance, it requires that the company has its central administration in the country), the member state acts within its powers; likewise, it is also the power of the member state to determine the conditions that must be met in order to preserve the company’s legal personality under its own law. [Articles 49 and 54 TFEU]are to be interpreted as not precluding legislation of a Member State under which a company incorporated under the law of that Member State may not transfer its seat to another Member State whilst ­retaining its status as a company governed by the law of the Member State of incorporation.36 The Court advanced that EU law does not determine which companies are the holders of the freedom of establishment but leaves this question to national law, quite similarly to the question of citizenship. The holders of the freedom of establishment are, among others, member state companies, while it is national law that confers this quality upon them. Hence, before applying the corresponding EU rules, the preliminary question whether the company ‘belongs’ to a member state must be answered.37 Thus a Member State has the power to define both the connecting factor required of a company if it is to be regarded as incorporated under the law of that Member State and, as such, capable of enjoying the right of establishment, and that required if the company is to be able subsequently to maintain that status. That power includes the possibility for that Member State not to permit a company governed by its law to retain that status if the company intends to reorganise itself in another Member State by moving its seat to the 33 C-210/06, Cartesio Oktató és Szolgáltató Bt. 34 On Cartesio see e.g., V.E. Korom & P. Metzinger, ‘Freedom of Establishment for Companies: The European Court of Justice Confirms and Refines its Daily Mail Decision in the Cartesio Case C-210/06’, 6 European Company and Financial Law Review 1, 2009, pp. 125-160; P. Metzinger, ‘A társaságok szabad letelepedése a Cartesio ügy után: Hogyan tovább nemzetközi székhelyáthelyezés?’, 9 Európai Jog 2, 2009, pp. 8-15; J. Fazekas, ‘Quo vadis Cartesio? – Gondolatok a székhelyáthelyezésrőlés a letelepedési szabadságról az Európai Bíróság Cartesio-döntése nyomán’, 9 Európai Jog 2, 2009, pp. 16-25; A. Osztovits, ‘Köddé fakult ­délibáb – a Cartesio ügyben hozott ítélet hatása a magyar polgári eljárásjogra’, 9 Európai Jog 2, 2009, pp. ­26-30; D. Deák, ‘A Cartesio ügyben hozott döntés hatása a letelepedési szabadság értelmezésére: honosság és illetőség, tőkeexport semlegesség, székhelyáthelyezés’, 9 Európai Jog 2, 2009, pp. 36-42. 35 Job 1:21. 36 Para. 124. 37 Para. 109.

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  18  The Personal Law of Companies and the Freedom of Establishment territory of the latter, thereby breaking the connecting factor required under the national law of the Member State of incorporation.38 Interestingly, the CJEU rejected AG Maduro’s proposal,39 who considered the above ­Hungarian provision discriminatory, since it treated intra-state and cross-border transfers of seat differently. National rules that allow a company to transfer its operational headquarters only within the national territory clearly treat cross-border situations less ­favourably than purely national situations. In effect, such rules amount to ­discrimination against the exercise of freedom of movement.40 Nonetheless, the CJEU made it clear that although the company has no normative right to transfer its seat to another member state, while still retaining its legal personality under the law of the country of origin, it does have the right to do so if it is ready to lose its initial legal personality and to acquire a legal personality under the law of the target member state, provided the latter ‘receives’ the migrant company. Nevertheless, the situation where the seat of a company incorporated under the law of one Member State is transferred to another Member State with no change as regards the law which governs that company falls to be distinguished from the situation where a company governed by the law of one Member State moves to another Member State with an attendant change as regards the national law applicable, since in the latter situation the company is converted into a form of company which is governed by the law of the ­Member State to which it has moved. In fact, in that latter case, the power referred to in paragraph 110 above, far from implying that national legislation on the incorporation and winding-up of companies enjoys any form of immunity from the rules of the EC Treaty on freedom of establishment, cannot, in particular, justify the member state of incorporation, by requiring the winding-up or liquidation of the company, in preventing that company from converting itself into a company governed by the law of the other member state, to the extent that it is permitted under that law to do so. Such a barrier to the actual conversion of such a company, without prior winding-up or liquidation, into a company governed by the law of the member state to which it wishes

38 Para. 110. 39 Opinion of AG Maduro in Case C-210/06, CARTESIO Oktató és Szolgáltató Bt [2008] ECR I-09641. 40 Para. 25.

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Csongor István Nagy to relocate constitutes a restriction on the freedom of establishment of the company concerned which, unless it serves overriding requirements in the public interest, is prohibited under Article 43 EC (see, to that effect, inter alia, CaixaBank France, paras. 11 and 17).41 The CJEU built upon the above dicta when establishing the right of cross-border conversion in VALE.42

18.3.2    Host State Restrictions: ‘Entering’ Another Member State As to host state restrictions (i.e. in cases where a member state refused to fully recognize the personal status of a company incorporated in another member state on the basis that the law of incorporation is not the company’s personal law and there is no genuine connection between the company and the country of incorporation), the CJEU held that the personal status acquired under the law of incorporation is to be fully recognized; the rules of the law of the real seat may be applied in so far as they are more favourable to the company or its members. This jurisprudence does not establish a right to choose the applicable law proper; however, it affords the parties the right to establish a company in any member state, even if this is clearly motivated by the purpose of circumventing the law of the real seat and even if the country of incorporation has no genuine link to the company (its shareholders, field of operation etc.), save the fact of incorporation. The first case involving a host state restriction was Centros,43 where a Danish couple (both of them Danish nationals residing in Denmark) established a private limited company in England in order to avoid the burdensome Danish rules on company formation, especially the minimum capital requirement.44 It was common ground that the mail-box company established in England was meant to operate exclusively in Denmark, without any activity in England. The complications arose when the company tried to register a branch in ­Denmark: its application was refused, among others, on the grounds that it “was in fact

41 Paras 111-113. 42 See Opinion of AG Jääskinen in Case C-378/10, VALE Építési Kft. 43 Judgment of 9 March 1999 in Case C-212/97, Centros Ltd v. Erhvervs- ogSelskabsstyrelsen [1999] ECR I-1459. See Judgment of 10 July 1986 in Case 79/85, D. H. M. Segers v. Bestuur van de Bedrijfsverenigingvoor Bank- en Verzekeringswezen, Groothandel en VrijeBeroepen [1986] ECR 2375. 44 The minimum share capital under Danish law was 200,000 Danish Krone (DKK). On the day of the English company’s foundation (18 May 1992) this was approximately 2.548.000 HUF (the Hungarian National Bank’s DKK to HUF exchange rate on the relevant day was 12,74 HUF/DKK). The value of the minimum share capital may be demonstrated more plastically on the basis of current data. On 7 December 2012, the DKK to HUF exchange rate was 37,98 HUF/DKK (DKK 1 = HUF 37,98, official rate of the Hungarian National Bank, ) and the EUR to DKK exchange rate 7,4590 DKK/EUR (that is, EUR 1 = DKK 7.4590; see the euro exchange rates of the European Central Bank, ); accordingly, 200,000 DKK was approximately 7,596,000 HUF and 26,813 EUR.

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  18  The Personal Law of Companies and the Freedom of Establishment seeking to establish in Denmark, not a branch, but a principal establishment, by circumventing the national rules concerning, in particular, the paying-up of minimum capital”.45 The CJEU ruled that a member state has no power to question another member state’s decision to grant legal personality to an entity. The Danish authority’s arguments, namely, implied that England and Wales should not have registered the private limited company: this is a decision that, on the basis of mutual trust and recognition, cannot be reviewed by other member states. It is contrary to […] [Articles 49 and 54 TFEU]for a Member State to refuse to register a branch of a company formed in accordance with the law of another Member State in which it has its registered office but in which it conducts no business where the branch is intended to enable the company in question to carry on its entire business in the State in which that branch is to be created, while avoiding the need to form a company there, thus evading application of the rules governing the formation of companies which, in that State, are more restrictive as regards the paying up of a minimum share capital. That interpretation does not, however, prevent the authorities of the Member State concerned from adopting any appropriate measure for preventing or penalising fraud, either in relation to the company itself, if need be in cooperation with the Member State in which it was formed, or in relation to its members, where it has been established that they are in fact attempting, by means of the formation of a company, to evade their obligations towards private or public creditors established in the territory of the Member State concerned.46 Albeit the CJEU admitted that member states can, in certain cases, restrict the recognition of companies founded in other member states (in case there is a danger of ‘fraud’), the clear and undisputed fact that establishing the company in England and Wales was motivated solely by the desire to avoid the Danish rules and that the company was intended to operate solely in Denmark were not sufficient to enable Denmark to resort to this exception. So the question arose: when is a conduct in the above context regarded as abusive or fraudulent? The tension between conflicts law and the freedom of establishment was translated to the language of private international law in Überseering.47 According to the fact pattern: Überseering was a Dutch company founded in the N ­ etherlands, the shares of which were acquired by German citizens and the company’s place of central management moved to Germany. In a lawsuit where Überseering sued for defective performance the defendant

45 Para. 7. 46 Para. 39. 47 Case C-208/00, Überseering BV v. Nordic Construction Company Baumanagement GmbH (NCC).

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Csongor István Nagy raised the argument that Überseering is non-existent as it does not meet the conditions of legal personality under its personal law; consequently, it was considered not to have legal personality and as such incapable of becoming party to a legal procedure. The argumentation was structured as follows. The forum shall apply its own conflicts rules to the question of personal law of legal persons. According to German conflicts rules, personal law, including the question of legal personality, is governed by the law of the country where the alleged legal person’s real seat is located. Since the real seat, after the sale of the company’s shares to German nationals, moved to Germany, the applicable law was German law and not Dutch law. Consequently, Überseering was expected to comply with the requirements of German company law, including the requirement of registration in Germany, which it, as a company with Dutch ‘identity’, neglected. Since Überseering did not meet the pre-conditions of legal personality laid down by German law (requirement of registration in Germany), it lacked legal personality, and as such it could not be party to a legal proceeding. This was a conflict problem to the core and touched the nucleus of the tension between EU law and the conflicts question of the applicable law. The rules on the freedom of establishment and EU law in general do not establish expectations towards the conflicts rules on the personal laws of companies; this question obviously belongs to the competence of the member states. On the other hand, EU law cannot tolerate plights where a company lawfully founded in one member state cannot ‘enter’ another member state, whatever conflicts law reasoning underpins such a conclusion. The CJEU ruled that 1.Where a company formed in accordance with the law of a Member State (‘A’) in which it has its registered office is deemed, under the law of another Member State (‘B’), to have moved its actual centre of administration to Member State B, Articles 43 EC and 48 EC preclude Member State B from denying the company legal capacity and, consequently, the capacity to bring legal proceedings before its national courts for the purpose of enforcing rights under a contract with a company established in Member State B. 2.Where a company formed in accordance with the law of a Member State (‘A’) in which it has its registered office exercises its freedom of establishment in another Member State (‘B’), Articles 43 EC and 48 EC require Member State B to recognise the legal capacity and, consequently, the capacity to be a party to legal proceedings which the company enjoys under the law of its State of incorporation (‘A’).48

48 Operative part.

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  18  The Personal Law of Companies and the Freedom of Establishment The CJEU gave no hints or suggestions as to how national conflicts rules should be designed;49 or at least not directly. It was simply very categorical as to the situations it cannot tolerate.50 At the same moment, the consequences of this ruling are rather clear for conflicts law. If a company is validly formed in one of the member states, i.e. it exists under the law of incorporation, it is the holder of the freedom of establishment;51 hence, its existence granted by the law of incorporation cannot be questioned in any of the member states. In other words, EU law does not require member states to apply the law of incorporation; nevertheless, if under the applicable law the company has no legal personality, while it does have such a quality under the law of incorporation, the latter prevails. Taking this into account, the question emerges: what is the point in applying the law of the ‘real seat’ if the law of incorporation cannot be derogated from? After Überseering, the answer could have been that the CJEU ruled on a case where the company’s legal personality was denied and it was questionable how it would decide if the member state refused to apply the law of incorporation to other issues coming under the notion of personal law.52 Nonetheless, the CJEU’s ruling in Inspire Art made it highly doubtful whether any floor remained for a rule different from the law of incorporation, though the Court still refrained from explicitly establishing a connecting factor. In this case the Netherlands adopted a special piece of legislation on pseudo-foreign companies. While companies founded in another country were governed by the law of incorporation, if all the relevant connections bound them to the Netherlands, they were subjected to special rules: for instance, the minimum capital requirement of Dutch law applied and the directors had joint and several liability, if the company did not comply with the aforementioned Dutch rules. This approach could be conceptualized with conflicts terms as follows: the law applicable to the

49 AG Colomer was more explicit on this: “where the Member State where the company is incorporated is also that in which it has its registered office, one would be forcing the Court to opt for one of the connecting factors which, in the absence of any change in legislation, are of equal weight under Article 48 EC, namely, the factor consisting of the registered office of the entity in question, of its centre of administration or of its principal place of business. If the EC Treaty has not given preference to any one factor, it is not the place of the court to do so. In the absence of harmonization, Member States remain at liberty to organize their rules of private international law in that area, and the national courts to interpret those rules, which must nevertheless comply, in terms of their practical effects, with the requirements of Community law.” Opinion of AG Colomer in Case C-208/00, Überseering BV v. Nordic Construction Company Baumanagement GmbH (NCC, para. 69. 50 Ch.H.J.I. Panayi, ‘Corporate Mobility in Private International Law and European Community Law: Debunking Some Myths’, 28 Oxford Journals Law Yearbook of European Law 1, 2009, pp. 155 (“The Court’s answers to the questions referred were specific and targeted. To an extent, the Court simply disapproved of the refusal to recognize the legal capacity of Überseering which prevented it from bringing legal proceedings before German courts.”) 51 Paras 81-82. 52 See e.g., E. Micheler, ‘Recognition of companies incorporated in other EU Member States’, 52 International and Comparative Law Quarterly 2, 2003, p. 529.

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Csongor István Nagy personal status of the company was the law of incorporation, while the imperative rules of the forum overrode some of the norms of the lex causae. Nevertheless, the CJEU held that the special rules of Dutch law applicable to ‘formally foreign companies’ hindered the freedom of establishment because they could discourage companies lawfully founded in one of the member states from establishing a branch or other operation in another member state.53 It is contrary to Articles 43 EC and 48 EC [now Article 49 and 54 TFEU]for national legislation (…) to impose on the exercise of freedom of secondary establishment in that State by a company formed in accordance with the law of another Member State certain conditions provided for in domestic company law in respect of company formation relating to minimum capital and directors’ liability. The reasons for which the company was formed in that other Member State, and the fact that it carries on its activities exclusively or almost exclusively in the Member State of establishment, do not deprive it of the right to invoke the freedom of establishment guaranteed by the EC Treaty, save where the existence of an abuse is established on a case-by-case basis.54 The above judicial practice suggests that the law of incorporation shall be applied if it is more favourable to the company or its directors. The question emerges, though: if the law of the seat, notwithstanding it’s imperative character, cannot be applied once it is more burdensome to the company or its directors than the law of incorporation, what remains in its purview? One may deny that the CJEU took a position as to the connecting factor to be adopted in private international law (as far as EU-matters are concerned, of course); however, that would disregard totally reality. The aftermath of the case law on the personal law of companies shows that the principle of ‘real seat’ was, in fact, replaced by the principle of incorporation: the supreme courts of Austria and Germany, the two citadels of the ‘real seat’ theory, moved towards the principle of incorporation.55 Finally, in VALE, the CJEU made it explicit that the law of the land is the incorporation theory, treating it as an accomplished fact. 53 Paras 99-101. 54 Para. 143 and answer to question 2. 55 For Austria see Case 6Ob124/99z OGH (Austria), decision of 15 July 1999, ÖsterreichischesRecht der Wirtschaft, No. 11, 1999, p. 719. For a case-note see Ch. Nowotny, ‘OGH anerkennt Niederlassungsfreiheit für EU-/EWR-Gesellschaften. Die Centros-Entscheidung des EuGH zwingt zur Abkehr von der Sitztheorie’, Österreichisches Recht der Wirtschaft 11, 1999, p. 697. For Germany see Case II ZR 5/03 BGH (Germany), ­decision of 14 March 2005. For a case-note see H. Eidenmüller, ‘Geschäftsleiter- und Gesellschafterhaftung bei europäischen Auslandsgesellschaften mit tatsächlichem Inlandssitz’, 58 Neue Juristische Wochenschrift 23, 2005, pp. 1618-1621. See also, W. Goette, ‘Zu den Folgen der Anerkennung ausländischer Gesellschaften mit tatsächlichem Sitz im Inland für die Haftung ihrer Gesellschafter und Organe’, 27 Zeitschrift für Wirtschaftsrecht 12, 2006, pp. 541-546.

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  18  The Personal Law of Companies and the Freedom of Establishment 18.4  The State of the Law after the CJEU’s Judgment in Vale The case law on the personal law of companies culminated in the CJEU’s judgment in VALE Építési Kft.56 The controversy emerged from an Italian company’s transfer of seat from Italy to Hungary and the submission of an application for registration in Hungary. However, in this case, the cross-border transfer of the seat, at the same moment, implied the company’s conversion, since it (voluntarily) lost its initial legal status and wished to become a Hungarian company. Accordingly, the case centred around a cross-border conversion and not a cross-border transfer of seat.57 This circumstance distinguishes VALE from Daily Mail and Cartesio, where the company wished to transfer its seat to the target member state (Netherlands, Italy), while preserving the legal personality acquired under the law of the country of origin (English law, Hungarian law). The country of origin (Italy) recognized (or at least enabled) the company’s universal succession, while the host member state (Hungary) did not. The Italian registry, under the heading “Removal and transfer of seat”, indicated that “the company has moved to H ­ ungary”; 58 the company gave an address in Budapest designated as its new seat. Nonetheless, the ­Hungarian company court (which runs the commercial register) refused to indicate in the registry that the Hungarian company was the legal successor of the Italian company. Of course, the shareholders were not deprived of the possibility to establish a company in ­Hungary that takes over the operations of the terminated Italian enterprise; however, this would have been a new company and not the legal successor of the Italian one. The CJEU held that although in case of cross-border company conversions the host Member State is entitled to determine the national law applicable to such operations and thus to apply the provisions of its national law on the conversion of national companies governing the incorporation and functioning of companies.59 The principle of equivalence precludes host member states from refusing, in crossborder conversions, to register that the new company’s ‘predecessor in law’ was the

56 Case C-378/10, VALE Építési kft. For an early note on the case (before the adoption of the CJEU’s ruling but after the publication of AG Jääskinen’s opinion) see D.M. Şandru, ‘Libertatea de stabilire a societăţilor comerciale. Posibile efecte ale cauzei VALE, C-378/10, pendinte, asupra practicii instanţelor române’, Revista Română de Drept European 3, 2012, pp. 124-130. For a case-note on the judgment in VALE see N.N. Orosz, ‘Az Európai Bíróság ítélete a VALE Építési Kft. ügyében. Az EUMSZ 49. és 54. cikkéből eredő tagállami kötelezettségszegés kérdése’, Jogesetek Magyarázata 3, 2012, pp. 66-73. 57 See Panayi 2009, p. 165 (Distinguishing between transfer without reincorporation and transfer with reincorporation). 58 Case C-378/10, VALE Építési Kft, para. 11. 59 Case C-378/10, VALE Építési Kft, para. 62.

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Csongor István Nagy company established in the member state of origin, provided this is possible in the case of domestic conversions. Furthermore, the principle of effectiveness precludes the host member state from “refusing to take due account, when examining a company’s application for registration, of documents obtained from the authorities of the Member State of origin”.60 Although the judgment does not make it explicit, from a private international law perspective, it seems to have been decisive that in this case the country of origin (the Italian registry), in its “graceful message of dismissal”,61 made it expressly clear that according to its law (the initial lex personae) the company converted (or was in the process of being converted) into a Hungarian company via legal succession; that is, when refusing to register the Hungarian company as the legal successor of the Italian enterprise, the ­Hungarian company court in fact refused to recognize the status acquired under the country of origin (Italy). The CJEU also confirmed that companies (and presumably legal persons in general) “are creatures of national law and exist only by virtue of the national legislation which determines their incorporation and functioning,”62 and, in consequence, it is the national law that determines who the holders of the free movement rights may be.63 [A] Member State thus unquestionably has the power to define both the connecting factor required of a company if it is to be regarded as incorporated under its national law and as such capable of enjoying the right of establishment, and the connecting factor required if the company is to be able subsequently to maintain that status […].64 In para 31 of the ruling, the CJEU seems to have made clear what has been an accomplished fact: (in intra-Union matters) the personal status of companies is governed by the law of incorporation; “such a company is necessarily governed solely by the national law of the host member state, which determines the connecting factor required and the rules governing its incorporation and functioning.” Due to the incorporation theory, the member state of origin has the power to determine the pre-conditions of legal personality. Accordingly, VALE – in accordance with Daily Mail and Cartesio – had no right to preserve its Italian legal personality after moving its

60 Ibid. 61 Borrowed from the title of one of the poems by Endre Ady, a renowned Hungarian poet; title in Hungarian: ‘Elbocsátó, szép üzenet’. 62 Para. 27. 63 Para. 28. 64 Para. 29.

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  18  The Personal Law of Companies and the Freedom of Establishment seat to Hungary, and to claim Hungarian legal personality before establishing a seat in Hungary. The CJEU put this very unequivocally: in the present case, the application by Hungary of the provisions of its national law on domestic conversions governing the incorporation and functioning of companies, such as the requirements to draw up lists of assets and liabilities and property inventories, cannot be called into question.65 The main concern against Hungarian law was not that it prescribed certain requirements against the acquisition of Hungarian legal personality. The main objection was that these requirements were not in conformity with the principle of equal treatment, since they treated domestic and cross-border conversions differently. The Court consider[ed] that, in so far as the national legislation at issue in the case in the main proceedings provides only for conversion of companies which already have their seat in the Member State concerned, that legislation treats companies differently according to whether the conversion is domestic or of a cross-border nature, which is likely to deter companies which have their seat in another Member State from exercising the freedom of establishment laid down by the Treaty and, therefore, amounts to a restriction within the meaning of Articles 49 TFEU and 54 TFEU […].66 The application of the requirement of equal treatment as to conversions (domestic and cross-border) did not come out of the blue. In SEVIC Systems,67 the CJEU held that national law may not discriminate between domestic and cross-border mergers, ruling that [Articles 49 and 54 TFEU] preclude registration in the national commercial register of the merger by dissolution without liquidation of one company and transfer of the whole of its assets to another company from being refused in general in a Member State where one of the two companies is established in another Member State, whereas such registration is possible, on compliance with certain conditions, where the two companies participating in the merger are both established in the territory of the first M ­ ember State.68 The Court extended the findings on cross-border mergers to cross-border conversions as well.

65 66 67 68

Para. 52. Para. 36. Judgment of 13 December 2005 in Case C-411/03, SEVIC Systems [2005] ECR I-10805. Operative part.

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Csongor István Nagy Since the above Hungarian rules were considered unjustifiable by imperative reasons of overriding public interest, the CJEU held that they fell afoul of the freedom of establishment.69 The language of the CJEU’s ruling in VALE bases the condemnation of Hungarian law on the principle of equivalence, in other words, cross-border conversions should not be precluded if domestic ones are not. Although the ruling did not treat the right of ‘arrival’ as an autonomous right but deduced it from the requirement of equal treatment, as member states normally do enable domestic conversions, the requirement of equal treatment seems to entail that this right should be de facto available throughout the EU. The ruling also suggests that cross-border conversions are governed by the law of the state of origin and subsequently by that of the host state. As to the role of the law of the country of origin, the Court noted that the examination of the fact whether VALE Costruzioni dissociated itself from Italian law, in accordance with the conditions laid down there under, while retaining its legal personality, thereby enabling it to convert into a company governed by Hungarian law […]constitutes the indispensable link between the registration procedure in the Member State of origin and that in the host Member State.70 The requirement that the cross-border conversion is feasible only if the law of the country of origin enables this appears also in the opinion of AG Jääskinen. He considered the question whether VALE existed at the time of lodging the application for registration in Hungary as a “crucial preliminary issue”.71 AG Jääskinen advanced that legal succession can occur only if universal transmission is not possible if the predecessor company has already lost its legal personality when the successor company is registered. In that situation, the holder of the rights and obligations of the predecessor company would be either a company which de facto has no legal personality or the shareholders, taken collectively or even individually. A situation of that kind does not permit universal legal succession between the two companies.72 AG Jääskinen arrived at the conclusion that Hungarian courts are required to recognize the legal succession of VALE (that is, to register it as the legal successor of the Italian company) only if the removal of VALE from the Italian commercial register was cancelled; otherwise VALE would have no legal personality at the moment of lodging the application for registration in Hungary.

69 70 71 72

Paras 38-40. Paras 58-59. Para. 23. Para. 79.

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  18  The Personal Law of Companies and the Freedom of Establishment The most important novelty in VALE is the establishment of an autonomous (though unregulated) right of cross-border conversion. Namely, the combined effect of the CJEU’s rulings in VALE and Cartesio entail that European companies have an autonomous right of cross-border conversion under EU law. In the dicta of Cartesio, the CJEU considered that a company has a right of ‘departure’ in order to convert into the legal person of another member state (to move its seat to another member state in order to acquire legal personality under the latter’s law and to lose its legal personality under the law of the member state of origin). In VALE, the CJEU held that a company has a right of ‘arrival’ in order to convert into the legal person of the target member state. The right of ‘departure’ and the right of ‘arrival’ seem to make up an autonomous EU right of cross-border conversion, the technical implementation of which is left to national laws. The requirement of equal treatment, applied by the CJEU in VALE to the ‘arrival’ in the host member state, seems to be equally applicable to the company’s ‘departure’ from the member state of origin; what is more, the ruling in Cartesio suggests that this is an independent and autonomous right based on EU law. Albeit in Cartesio the Court rejected AG Maduro’s proposal to apply the requirement of equal treatment to the cross-border transfer of seat,73 due to the member state’s longstanding right to determine the pre-conditions of legal personality under their own law, this proposition does not cover cases when the seat is transferred in order to lose the initial legal personality and to acquire a new one. Note that in Cartesio the company intended to move its seat from Hungary to Italy while retaining its Hungarian legal personality. This can be distinguished from the case when the company wants to move its seat to another country in order to acquire legal personality in the latter, while losing its initial legal personality, and the country of origin precludes this. The CJEU made this clear, and paras 111-113 of the ruling (quoted above) suggest that EU law establishes a right of ‘departure’ “where a company governed by the law of one Member State moves to another Member State with a concomitant change as regards the national law applicable.”74 In VALE, the CJEU suggested that legal succession can occur only if the law of the country of origin makes this possible, providing that the company is supposed to prove that “the succession was authorised by the law of the Member State of origin” and “a transfer of the assets from the predecessor company to the company in formation can take place only by virtue of the legal system of the Member State of origin.”75 Nonetheless, in para 49, the

73 See Opinion of AG Maduro in Case C-210/06, CARTESIO Oktató és Szolgáltató Bt, para. 25; C-210/06, ­Cartesio Oktató és Szolgáltató Bt, paras 110-111. 74 Para. 111. 75 Para. 77.

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Csongor István Nagy Court suggests that the existence of the right of conversion is secured by EU law, and it is only its implementation that is left to national law: the company concerned enjoys a right granted by the European Union legal order, in this instance, the right to carry out a cross-border conversion, the implementation of which depends, in the absence of European Union rules, on the application of national law.76 Taking all this into account, it seems that companies have a de facto right to move their seat to another member state in order to convert into a legal person of this country, albeit the technical implementation of this conversion is governed by the national laws of the original and the host member state. The first element of this right (right of ‘departure’) was established in Cartesio, while the second element (right of ‘arrival’) in VALE; though here the CJEU did not say that the right of ‘arrival’ is an autonomous right, since member states normally enable domestic conversions, the requirement of equal treatment seems to make this right de facto available throughout the EU. 18.5 Conclusions The CJEU’s case law on the personal law of companies culminated in VALE, where the Court (as regards intra-Union matters) recognized the right to indirectly choose the personal law of the company by making explicit the prevalence of the incorporation theory. Individuals may establish a company in the member state they please and operate it in the member state they please.77 This plight had been an accomplished fact, though it seems to have been made explicit in VALE. The CJEU’s ruling also contributed to the case law with putting down the second brick of an EU right of cross-border conversion. The first brick was put down in Cartesio.78 ­Accordingly, a company has the right to move its seat (registered or real) to another member state if it is willing to do this at the price of losing the legal personality under the country of origin, while acquiring a legal personality under the law of the host member state. First, although the determination of the pre-conditions of legal personality comes under national law, the transfer of seat with the intention to lose this legal personality (or rather: to change it with another legal personality) falls out of this national legislative competence, and the restriction of this violates the freedom of establishment.79 Second, 76 Para. 49. 77 On whether and to what extent firms may exploit this forum shopping perspective see J. Armour, ‘Who Should Make Corporate Law? EU Legislation versus Regulatory Competition’, in: J. Holder & C. O’Cinneide (Eds), Current Legal Problems 2005, Vol. 58, Oxford University Press, 2006, pp. 382-393. 78 Paras 11-113. 79 C-210/06, Cartesio Oktató és Szolgáltató Bt, paras 111-113.

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  18  The Personal Law of Companies and the Freedom of Establishment if a member state enables the intra-state move of the seat, it cannot preclude its crossborder move; that is, if a company can move its seat to another county, it should also have the right to move it to another country. The contrary would be equally discriminatory as ­Hungarian law’s rule quashed in VALE, which provided that a company from another county can convert, but companies from another country cannot. It seems to be reasonable that if a member state is obliged to ‘receive’ foreign companies, it is also obliged to let its companies ‘go abroad’. In VALE, the CJEU completed this right of cross-border conversion with introducing its second constituent element: the right of ‘arriving’ in the target member state. Although the second element was derived from the principle of nondiscrimination, since member states normally permit domestic conversions, the rejection of the cross-border conversions would qualify as discriminatory. The requirement of equal treatment seems to make this right de facto available throughout the EU. With putting down the second brick of the EU right of cross-border conversion, the CJEU struck an innovative but dangerous path. Company conversions raise complex issues that are to be addressed in complex legislation, prepared in a careful legislative process, and not in the courtroom. The change of the seat and that of the applicable law fundamentally affects, among others, the application of tax law, the creditors’ rights, the jurisdiction and applicable law in insolvency proceedings;80 and the regulation of cross-border conversions have to take these facets carefully into account.81 However, the EU right of cross-border conversion is a largely unregulated right. National courts will have a special responsibility to address the concerns and avoid the pitfalls of cross-border conversions in a legislative vacuum. It would be welcome if the EU legislator could address the problems of crossborder conversions. This would not be the first case, when the CJEU forces out EU legislation ‘passively’.

80 On this see Armour 2006, pp. 401-411. 81 On the public interest aspects of these see V. Edwards, ‘Secondary Establishment of Companies – The Case Law of the Court of Justice’, 18 Yearbook of European Law 1, 1998, pp. 252-257.

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19

Protection of European Citizens in Third States under Article 23 TFEU

Imola Schiffner* Every citizen of the Union shall, in the territory of a third country in which the Member State of which he is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that State. (Art. 23, Treaty on the Functioning of the European Union, ex Art. 20 EC Treaty)

19.1 Introduction The European Union has been aspiring to further strengthen the protection of its citizens for a long time, which is one of the most important elements of the category of EU citizenship introduced by the Treaty of Maastricht.1 The aim of European citizenship according to the settled case law of the European Court of Justice is to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for.2 Under the Treaty on the Functioning of the European Union, EU citizenship entails among others the following rights for the citizens of member states: – The right to free movement and residence, – The right to vote and stand for election in municipal elections and the elections of the European Parliament,

*

Senior Lecturer in the Department of International and European Law of the Faculty of Law and Political Sciences at the University of Szeged. She received her Ph.D. in 2010 in international public law, on the topic of Diplomatic Protection. 1 In accordance with the category of EU citizenship, citizens of all member states can be considered European citizens as well. 2 Judgment of 20 September 2001 in Case 184/99, Rudy Grzelczyk v. Centre public d’aide sociale d’OttigniesLouvain-la-Neuve (Grzelczyk) [2001] I-6242, para. 31.

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Imola Schiffner – The right to petition the European Parliament and the right to apply to the European Ombudsman, – The right to protection by the diplomatic and consular authorities of any member state. This latter right means that all EU citizens in the territory of third countries where the member state, whose nationality the citizen holds, does not have representation, are entitled to protection by any member state under the same conditions as a national of said state. Article 46 of the Charter of Fundamental Rights of the EU contains a similar provision as well. This Union right embodies the outer dimension of the category of EU citizenship, and because it can be found among the provisions related to the democratic principles in the Treaty on European Union, indeed, it is considered one of the key measures strengthening EU solidarity and identity. According to the provisions, the lack of national protection entitles the citizen to protection afforded by another member state. Protection is lacking in case in a given country, the state of which the victim is a national, or a state that represents it permanently, does not have either an accessible permanent representation (embassy, consulate) or an accessible honorary consul who is competent in granting protection.3 According to the Proposal of the Commission of 2011,4 a European citizen is considered unrepresented if the embassy or consulate of his/her member state is not ‘accessible’. An embassy or consulate is not ‘­accessible’ if the European citizen cannot reach it and return to his/her place of departure on the same day (by means of transport normally used in the third state).5 This protection shall be provided ‘under the same conditions’ as to the nationals of that given state. This is in accordance with the principle of equal treatment and the prohibition of discrimination on the grounds of nationality laid down in Article 18 of the Treaty on the Functioning of the European Union (hereinafter the ‘TFEU’). However, providing protection under the same conditions does not mean that the same protection shall be provided to European citizens, thus it does not mean the uniformity of protection either. Protection provided to own citizens means different regulations and practices in each member state,6 even though the Commission aimed at the creation of a unified form of protection. However, for a long time it was not even clear what the nature of these rights and the content of this protection provided for European citizens under this provision exactly is. There were member states who saw the establishment of the right to diplomatic protection in it, while others limited the scope of the provision to consular protection. Nonetheless,

3 (last accessed 30 September 2011. 4 Final Proposal for a Council directive of 14 December 2011, COM/2011/0881 on consular protection for citizens of the Union abroad. (14.12.2011). 2011/0432 (CNS). 5 There is however no agreement about when an embassy or consulate is accessible. 6 Only a few member states recognize the possibility of legal remedy in the case of refusal to provide protection.

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  19  Protection of European Citizens in Third States under Article 23 TFEU even though the treaty provision itself does not specify this precisely, in light of the rules of enforcement developed in relation to the provision since, as well as the current Commission guidelines,7 it appears to be common ground that the provision contains the right to consular protection. This seems to be the most suitable solution for the protection EU citizens, for if the legal status of European citizenship remains unchanged, under the present rules of international law and the rules of containment, providing protection to the citizens of other states is only possible within the framework of consular protection.8 This somewhat neglected and rather inefficient right, has become more and more prominent in the recent years and it is a definite plan of the Commission to give concrete flesh and ensure the enforceability of the provision. In light of this aim, the Commission prepares a report on the application of Article 23 of the TFEU every three years and documents the development and the needs of this field through other means as well. The development of this area was added to the objectives of the Stockholm Programme, launched in 2010, supported among others by the European Council. The aim is to consider appropriate measures establishing coordination and cooperation necessary to facilitate consular protection in accordance with Article 23 TFEU”.9 The natural disasters and crisis situations of the past years10 evidenced the need for consular protection regulated on the EU level.11 At present, there are only three countries in which all of the member states have representation: the People’s Republic of China, the Russian Federation and the United States of America, and out of 167 third countries, there are 107 countries where a maximum of 10 member states have representation.12

19.2 The Protection of European Citizens Prior to the Lisbon Treaty Prior to the Lisbon Treaty, the documents that were adopted concerning the protection of European citizens were essentially not mandatory, their aim was mostly to facilitate

7 8 9 10 11 12

COM/2011/149, OJ C/2011/140/16, Communication from the Commission to the European Parliament and the Council: Consular protection for EU citizens in third countries: State of play and way forward. Brussels, 23.3.2011. 1963 Vienna Convention on Consular Relations, 596 UNTS 261, Art. 8. European Council document, 17024/09, OJ 2010/C 115/01, The Stockholm Programme – An open and secure Europe serving and protecting the citizens, 2 December 2009. More than 100,000 EU citizens were present at the location of the crises in this period. In 2011 in Japan, Germany evacuated 18 non-German citizens from Sendai, from Libya, 8 EU consulates evacuated almost 5,000 EU citizens, Hungary for example evacuated 29 Romanian, 27 Hungarian, 20 ­Bulgarian, 8 German and 6 Czech citizens from Tripoli by airplane. The Council document of 12 December 2005 on the representation of the EU presidency outside the EU, which has not been published. The document also shows that the member states have limited diplomatic and consular representation in Central America, the Caribbean, Central and East Africa.

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Imola Schiffner coordination, beginning with the Decision of the Representatives of the Governments of the member states meeting within the Council of 19 December 1995 regarding protection for citizens of the European Union by diplomatic and consular representations (95/553/EC).13 The wording of the decision of the Council is clear. It wishes to extend the right to protection by diplomatic and consular representations to all European citizens with reference to Article 20 of the EC Treaty (now Art. 23 of TFEU) in the case of European citizens who have no permanent representation or competent honorary consul of their nationality in the given third country.14 The decision of the Council first states the cases the protection laid down in the treaty applies to, such as: – assistance in cases of arrest or detention; – assistance in cases of serious accident or serious illness; – assistance to victims of violent crime; – assistance in cases of death; – the relief for distressed EU citizens, or – the repatriation of distressed citizens of the Union.15 Therefore, the 1995 decision definitely meant a step forward in determining the contents of the protection of European citizens, even though further specification of the latter was still dependent on subsequent legislation. However, the decision failed to set up a legal framework providing for a unified system of assistance and support to European citizens. The subsequent 96/409/CSFP decision16 lays down the establishment of a temporary travel document issued in countries where a citizen’s member state of origin does not have permanent diplomatic or consular representation. The aim of this decision is for the unified temporary travel document to provide genuine assistance to the citizens of the Union who are in distress, confident that the establishment of such a document will provide a clear demonstration of the practical benefits of being a citizen of the European Union. For the enforcement of both decisions it was necessary that all member states incorporated the essential elements of these decisions into their own legal systems. This process however came to a halt mainly due to the different attitudes of the member states. In 1997, the European Parliament even noted critically that “the right to consular and diplomatic protection is still at a theoretical stage.”17

13 Decision 95/553/EC of 28 December 1995, OJ L 314, of the Representatives of the Governments of the Member States meeting within the Council. 14 Decision 95/553/EC, OJL 314, Art. 1. 15 Decision 95/553/EC, OJL 314, Art. 5. 16 Decision 96/409/CSFP of 6 July 1996, OJ L 168, of the Representatives of the Governments of the Member States, meeting within the Council on the establishment of an emergency travel document, pp. 4-11. 17 EP Resolution of 20 July 1998, OJ 1998 C 226, on the Second Commission Report on Citizenship of the Union (COM(97) 0230 C4-0291/97), p. 61.

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  19  Protection of European Citizens in Third States under Article 23 TFEU However, since 2005, in light of the events that occurred at the time,18 these ‘sleeping’ provisions came to the forefront of attention. The decisions adopted previously were more than ten years old and did not reflect the changes and challenges that had appeared since. The number of member states had also increased significantly, therefore, there was a need to establish a more efficient system to guarantee the right laid down in Article 20 of the EC Treaty (presently Art. 23 of TFEU) to all EU citizens.19 In light of this, a working group dealing with consular cooperation (hereafter ‘COCON’) was set up under the Council of the European Union, with the aim of – among others – organizing the exchange of information about national best practices. The working group developed more documents to reinforce this aspect of EU citizenship. This is how the guidelines entitled Guidelines on consular protection of EU citizens in third countries20 and Reinforcing the European Union’s emergency and crisis response capacities21 were created. These non-binding guidelines put the emphasis on the exchange of information between member states with the goal of achieving a close cooperation including the delegations of the Commission. The guidelines on consular protection concentrate primarily on areas concerning the cooperation of the consular representations of the member states. The guidelines thus make recommendations for the creation of a cooperation plan to be used in case of crisis situations, addressing the responsibilities shared during the course of cooperation and foreseeing the distribution of different tasks between the consular representations functioning in third countries. The creation of these recommendations, regular discussions and meetings serve the purpose of rendering the protection of European citizens more effective and well coordinated in third countries, eliminating the disadvantages stemming from the different practices of particular member states.22 The other,23 also non-binding Council document deals with the technical side of the same goals with the need to strengthen crisis-­management capabilities. This recommendation not only emphasizes the necessity of cooperation and information exchange between the member states as well as those developed by the institutions of the Community (now: European Union), but also pays special attention to the cooperation with other international organizations.24

18 The 2005 tsunami in South-East Asia, 2006 Lebanon crisis. The recent crises affected a number of EU citizens, for example after the 2011 spring democratic uprisings in Libya, Egypt and Bahrein, or after the 2011 March earthquake in Japan. 19 Taking into account the new member states as well, all nember states are represented in only three countries, in China, Russia and the United States. 20 Council document 10109/06 of 16 June 2006 revised by Council document 15613/10 of 5. November 2010 – not published. 21 Council document 10551/06 of 15 June 2006. 22 Council document 10109/06 of 16 June 2006. 23 Council document 10551/06 of 15 June 2006. 24 Ibid.

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Imola Schiffner In May 2006, Michel Barnier, the former French Minister of Foreign Affairs and Commissioner published a report with the title For a European Civil Protection Force: Europe Aid, in which he defined the tasks of the European Union concerning the protection of EU citizens. The Barnier report, besides containing suggestions aimed primarily at the proper treatment of crisis situations, also touched upon the units that should be set up and the steps that must be taken in humanitarian and other crisis situations. In this regard it also clearly delimitated the further tasks of Community legislation. Thus, it also explored the possibilities of consular assistance, emphasizing the necessity of further strengthening this institution on the Community level. According to Barnier’s point of view, the European Union should develop its capabilities primarily in regions outside of the EU.25 In the same year the Commission’s Green Paper was published entitled the Diplomatic and Consular Protection of Union Citizens in Third Countries.26 The Green Paper dealt separately with the protection of the diaspora of Union citizens in third countries,27 in relation to which it mentioned the possibility of concluding treaties with third states. It suggests solving the problem of the protection of non-EU citizen family members of Union citizens through the extension of personal scope of consular protection to include them as well.28 It also mentioned the necessary consent of third states as further problem to be solved, after both the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention laid down the general principle of international law according to which the protection of a national by another state implies the consent of the third state.29 Article 20 of the EC Treaty (now Art. 23 TFEU) already required the commencement of international negotiations for obtaining such consent, however, the Green Paper contains further alternatives. Therefore, consideration must be given to proposing so-called mixed agreements instead of classical bilateral agreements, since in this case both the Community and the member states could participate in settling the question of consent as signatories.30 This would also carry the possibility of inserting a clause of approval with a permanent content into such treaties.31 With this clause, third states could consent to any member state providing protection to Union citizens.32

25 M. Barnier, For a European Civil Protection Force: Europe Aid, 2006, p. 7. 26 European Commission Green Paper of 28 November 2006, COM(2006) 712 final – OJ C 30, on diplomatic and consular protection of Union citizens in third countries (hereinafter the ‘Green Paper’). 27 Ibid., point 3.1. 28 Ibid., point 3.2. 29 Art. 45 para. c), and Art. 46 of the 1961 Vienna Convention on Diplomatic Relations 500 UNTS 95, and Art. 8 of the 1963 Vienna Convention on Consular Relations, 596 UNTS 261. 30 Summary Report of Public Hearing of 29 May 2007 . 31 This solution is referred to as a ‘consent clause’ in the Green Paper on the subject. 32 Green Paper, point 5.

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  19  Protection of European Citizens in Third States under Article 23 TFEU The European Commission launched a broad debate33 concerning the recommendations articulated in the Green Paper, since besides the issues already settled, some questions still remained open is following areas: – The question of informing Union citizens about their right to diplomatic and consular protection, – The content of the protection of Union citizens, – Concepts about the possibilities of consular cooperation, the compatibility of the practice of member states, – The consent of the authorities of third states.34 All participants agreed that there is a need for more progress in the area of informing ­citizens, however, different views emerged concerning the extent of protection.35 All states tried to make it clear that the content of protection should be clarified in order to include for example, that protection should be available on request from diplomatic and consular representations,36 and that Honorary Consuls should also be able to properly represent EU citizens abroad.37 Moreover, the representatives of states considered it important to discuss the question that in case the Union concept supports the extension of EU protection to family members as well, how can the scope of entitled family members be defined? As a result of this dialogue, a so-called Action Plan 2007-2009 was drafted on 5 D ­ ecember 38 2007, which summarized the positions of the member states and sought to outline the scope of necessary measures in connection with this issue.39 It discussed further possibilities which could facilitate the application of the right, and it also stated that for the proper protection of Union citizens, the Community and national measures must be in conformity with each other, the realization of which had been so far hindered by the lack of national measures.

33 The European Commission held a hearing on 29 May 2007 concerning the Green Paper. 34 Summary Report of Public Hearing of 29 May 2007 . 35 The opinion of Germany has to be highlighted separately, who deems necessary the consideration of international legal norms, such as the Vienna Conventions on diplomatic and consular relations. In this question, the attitude of Great Britain can also be considered relevant, where the citizen is not even entitled to consular protection and in most cases it is only possible to make steps that were created through practice, in the absence of a satisfactory legal framework. 36 . 37 Report on the Green Paper: Diplomatic and consular protection of Union citizens in third countries – ­European Parliament Report – 22/11/2007. See also, Danish reaction to Commission Green Paper on Consular Protection, Estonia’s position. 38 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – Effective consular protection in third countries: the contribution of the European Union – Action Plan 2007-2009, COM(2007) 767 final.

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Imola Schiffner Therefore, summarizing the legal and political steps prior to the Lisbon Treaty, it can be stated that the effectiveness of the measure was clearly reduced, since there were relatively incomplete and inaccurate measures in place concerning such protection, which made it impossible to define the clear contents of protection or to regard it a right which can actually be enforced. It was also problematic that in the legal field in question the measures and regulations of member states are quite different and so far was only the subject of intergovernmental cooperation. Nevertheless, the fact that the documents prior to the Lisbon Treaty did not have a binding effect did not mean that no guidance was not provided to the member states concerning the direction they should develop this area or the type of cooperation needed. This is definitely necessary in certain fields since it jeopardizes legal certainty in case EU citizens are not properly informed about the contents of this right. The general information that can be found on the website of the Council, and the aspiration to put Article 23 TFEU in the passports of more and more EU citizens seems useful, however, it is not sufficient, especially since in this case we are talking about a fundamental right of Union citizens. The lack of common European norms also causes problems since in the present situation the norms providing protection to EU citizens differ from member state to member state. In certain cases its operation is intransparent, since it is not clear to which state’s consular representation one can turn in an emerging crisis situation in a third state. Finally, the settlement of the financial implications of the measures is also pending. EU citizens in third states most frequently ask for assistance in situations in which they lose their money, their documents and need full financial assistance.40 19.3 The New Legal System The Lisbon Treaty coming into force on 1 December 2009 brought changes in the field of the protection of EU citizens as well. It strengthened and clarified the efforts pertaining to the area. One of the most significant changes of the Lisbon Treaty is the rejection of the system of intergovernmental legislation and authorizing instead the Commission to ­propose legislation, as a result, the EU institution now has competence to propose ­directives in this field. In accordance with the provisions amended “the Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate such protection.”41 39 This Action Plan is none other than the non-exhaustive schedule of the measures planned to be proposed by the Commission between 2007-2009. 40 Without defining the basis of financial solidarity, the consular representatives of member states hesitate to provide financial assistance. 41 Art. 23 para. 2 TFEU. Therefore after the entry into force of the Lisbon Treaty the right becomes relevant not only on the level of primary sources of law, but also on the level of secondary sources of law as well.

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  19  Protection of European Citizens in Third States under Article 23 TFEU The aim was to establish an individual right of legal relevance, which will no longer only exist as a declaration of political nature. In order to determine the real content and enforceability of the right, our starting point is the locus of the provision in the treaty. The Treaty on the Functioning of the European Union places it among the rights related to EU citizenship, supporting the interpretation of the provision as a right that all EU ­citizens are entitled to. This view is confirmed by Article 46 of the Charter of Fundamental Rights of the EU,42 which defines the protection of EU citizens as an individual fundamental right. Examining further the place of the provision we can also determine that the protection of EU citizens is a provision placed within the framework of the prohibition of discrimination. Providing protection to EU citizens can definitely be considered a situation coming under the prohibition of discrimination, thus it is a provision aimed at the elimination of discrimination based on citizenship. The wording of Article 23 confirms this, according to which a citizen is entitled to protection ‘under the same conditions’ as the nationals of the given member state.43 Nevertheless, since the entry into force of the Lisbon Treaty the enforceable individual right nature of the provision was strengthened, since the second paragraph of Article 23 TFEU (as opposed to the previous provisions) authorizes the Council to adopt directives facilitating the provision of protection. This clearly entails the harmonization of protection, ensuring the possibility for EU citizens to not only receive some type of protection from the member states’ representations, but that this protection will be unified regardless of which member state or EU delegation they turn to. Thus, in line with the current regulation, protection can be requested if the EU citizen is faced with difficulties in a non-EU state, his or her own member state does not have representation in said location. The citizen is then entitled to a type of protection similar to consular assistance, which is provided by the representation of another member state under the same conditions as it would be to its own citizens. We have to admit that this restricts the right to protection to a much tighter scope, rather than to determine that a member state, contrary to its interests and ignoring its opinion, has to provide this right to citizens. It is solely a complementary possibility in the case of the member state not represented in the offending third state, moreover, the right to be created in this form is not enforceable in case of violations occurring in one of the member states of the European Union Therefore, the citizen cannot obtain an unrestricted right for protection against neither the EU, nor one of the member states. In addition, the provision merely ensures EU citizens to be 42 Any EU citizen is entitled to request the protection of a diplomatic or consular authority of any member state in the territory of a third state, where the member state of their nationality does not have representation, under the same conditions as the citizens of the member state in question. 43 It is questionable whether the requirement of equal treatment is realized if the content of the protection of an EU citizen depends on which member states he/she turns to?

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Imola Schiffner granted assistance from foreign representations with the same conditions as their own nationals. Therefore, Article 23 does not state that it provides a right, only that it provides a right to the same protection that the foreign representation’s own nationals have. As a result, the EU citizen does not become entitled to the protection that would be provided by his or her own state. Basically, EU law does not create a new right in the practice of the member states, since we are talking about affording an already existing right to the nationals of other member states, which is more or less provided for the own nationals, therefore, existing practice can be modified. Moreover, a tendency can be discovered in the previous practice of the member states, according to which they provided protection to the nationals of other states under certain conditions,44 and occasionally in crisis situations in which EU citizens were affected. However, some problems arise here, as international law imposes conditions for such a ‘modification’. According to Article 8 of the 1963 Vienna Convention on Consular Relations, if a state wishes to provide consular protection to a non-national, the third state must first consent to this. Obtaining this consent may be essential for member states, since without it the proper protection of EU citizens in conformity with the treaty may not be guaranteed, and with reference to this, the member state may refuse to provide protection to the citizen of another member state. On the other hand, the question arises: what happens if the member state does not even provide consular protection to its own nationals in a situation in which the EU citizen finds himself/herself, or consular assistance is not granted as a subjective right to its own citizens? Can it refuse to comply with Article 23 with reference to this? How can the category of EU citizenship be regarded a uniform concept at all, if the content of one of the related rights depends largely on the member state guaranteeing such right? This is where we have to once more mention the second paragraph of Article 23, which makes it possible for the Council to adopt directives facilitating cooperation, definitely seeking to eliminate these problems by establishing a more unified practice. Its goal is to regulating in what cases and under what conditions an EU citizen is entitled to what type of assistance.45 Not fulfilling these regulations already raises the question of the responsibility of the member state, and strengthens the possibility of enforcing the right. This is because the Commission may initiate an infringement procedure against the member state which does not implement the directives of the Council and does not adopt the provisions which afford protection to the citizens by the foreign representations.46 On the other hand, the 44 I. Schiffner, ‘Az uniós polgárok konzuli védelmének lehetőségei a tagállamok gyakorlatában’ (The possibilities of consular protection of EU citizens in the practice of Member States), II Forum 1, 2012, pp. 174-179. 45 Document of the Council of 9 June 2010, Common Practices in Consular Assistance and Crisis Coordination. 10698/10. 46 The question arises: is the state obliged to provide the same assistance to its citizen that it is obliged to provide to EU citizens in the absence of a regulation?

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  19  Protection of European Citizens in Third States under Article 23 TFEU appropriate provisions of the member states are in vain if their authorities do not comply with the regulations and do not provide protection, in this case, according to the principle of sincere cooperation (formerly called principle of Community loyalty, Art. 4 para. 3 Treaty on the European Union, hereinafter ‘TEU’) the responsibility of the member state emerges again, since the member state and its authorities shall make every effort to ensure that EU law is enforced effectively. Moreover, Article 47 of the Charter of Fundamental Rights of the EU guarantees effective judicial protection,47 thus, if the organs of the Union, for example the delegations of the EU would be obliged to provide protection to EU citizens in third states in the future, in the event of the breach of such obligation, they would be required to pay compensation on the basis of non-contractual liability. Therefore, it can be concluded regarding the post-Lisbon Treaty regulation that even if it does not seek uniformity, it seeks to harmonize the field. The task of the member states remains to adopt the necessary rules, however, these are subject to judicial review. EU citizens can still freely decide which member state’s protection they wish to request in lack of their own member state’s protection. Perhaps this is why it is important: to avoid the so-called forum shopping, an EU citizen can choose, but still gets similar protection, wherever he or she turns.

19.4 Possibilities and Instruments of Cooperation for the Protection of EU Citizens The cooperation of member states in providing protection, which has already been mentioned in the Barnier report, could be a solution to the lack of unified national regulations. More forms of cooperation have incurred, besides the establishment of special crisis-management delegations, the unification of consular resources and the cooperation of national representations, the delegations of the Commission, and the Presidency of the Council.48 The report has already considered the establishment of so-called European consulates in 2006.49 Furthermore, there have been earlier attempts at consular cooperation between member states as well. For example, within the framework of the so-called ‘Lead State’ programme,50 with the aim of strengthening consular cooperation and improving the protection of EU citizens in case of a crisis in those third states where only a few member states have representation.51 47 Everyone, whose rights and freedoms provided by EU law are violated, has the right to effective remedy before a court under the conditions stated in this article. 48 Barnier, 2006, p. 22. 49 Ibid., p. 23. 50 According to the European Union Guidelines on the implementation of the consular Lead State concept the recommended concept would provide the protection of EU citizens in third states. 51 Action Plan point 2, p. 4.

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Imola Schiffner 19.4.1    Lead State Concept52 According to the conclusion of the meeting of 18 June 2007 of the General Affairs and External Relations Council in the event of a major consular crisis and without prejudice to the primary responsibility of Member States to protect their nationals, the Lead State will endeavour to ensure that all European Union citizens are assisted and will coordinate between Member States on the ground.53 In a certain third state, one or more member states are appointed as lead states to provide protection in the name of the other member states to those EU citizens who are unrepresented on the ground. In case of evacuation, the lead state would take responsibility concerning the European citizens who are unrepresented on the ground of the crisis, and besides coordinating the evacuation, in certain cases it would also provide consular assistance to the citizens in distress, even by undertaking to pay the necessary costs.54 The member states would assume the tasks of being the lead state voluntarily, with the participation and active support of all member states. The other member states would in all cases continue to monitor the situation of their citizens on the ground, sharing with each other intelligence and situation assessments, providing reinforcement and additional resources if necessary.55 The member state wishing to assume the task of lead state will notify this through COREU.56 This should be brought to the attention of the diplomatic and consular representations in third states, in the framework of a local coordination meeting. If two member states wish to assume the task of lead state,57 they should notify this jointly through the COREU. If there is more than one lead state, the states will divide their tasks as ­appropriate and clearly determine the rules of coordination. If another member state does not object through the COREU within a day deadline, and until the state does not resign through the COREU, the notifying member state shall be declared the lead state in 52 European Council Guidelines on the implementation of the consular Lead State concept 2008/C 317/06, OJ C317, 12 December 2008. 53 Ibid., point 1. 54 During the 2006 Lebanon crisis. 55 European Council Guidelines on the implementation of the consular Lead State concept, 2008, point 2. 56 Correspondance Européenne, the inner mailing system of EU member states, which makes the fast cooperation of the Commission and the member states possible in matters of foreign policy. It is of particularly great significance when making decisions in crisis situations. 57 The General Secretariat of the Council updates the list of those third states, in which one member state ­assumes the position of lead state, as soon as they are informed of a statement of assuming lead state or ­resigning from the position. This list is published on the consular website stored on the server of SITCEN and sent regularly to the member states.

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  19  Protection of European Citizens in Third States under Article 23 TFEU the third state concerned.58 In case of a significant consular crisis in a third state, where no member state has been appointed lead state, one or more member states can immediately assume this task, if they inform the other member states through the COREU or other appropriate means. It is the task of the state acting as lead state to take appropriate steps towards the protection of EU citizens, to organize their evacuation and to coordinate rescue operations by establishing certain crisis centres. In doing so it stays in contact with other member states informing them about the situation, the assistance needed and the circumstances of the affected EU citizens.59 The recommendation of the Commission of 2011 also states that the lead state can request further assistance from the Community Civil Protection Mechanism of the EU and from the crisis-management structures of the European External Action Service.60 The question of solving so-called crisis situations stands out from the types of cooperation among the member states. In this case, according to the Commission it is particularly ­important that the member states and the Union inform each other about the available evacuation capacity. During the evacuation operations, the member states often offer possibilities related to the evacuation – for example seats available on airplanes – for citizens who are unrepresented.61 The goal of the Commission is to increase coordination and to distribute the burden between member states, for example by setting up an EU group in crisis situations that consists of employees of national consulates, which, if necessary, cooperates with the European External Action Service and the Commission. Concerning the funding of these measures of possibly extraordinary cost, the Commission seeks to simplify the procedure and encourage member states to provide the necessary financial resources. Since November 2007, the Civil Protection Mechanism of the European Union facilitates the consular protection of EU citizens.62 In crisis situations, as the operational centre of the mechanism, the Monitoring and Information Centre of the European Commission will make information available necessary for the mobilization of resources and tools and the exchange of information between the participating member states.63 The idea of the establishment of common offices and the use of the Commission’s delegations for the protection of Union citizens has already been mentioned in the Barnier 58 European Council Guidelines on the implementation of the consular Lead State concept 2008/C 317/06, OJ C317, 12 December 2008, point 5.1 59 Lead State Concept in Consular Crises, Conclusions adopted by COCON, 10715/07, 12.07.2006. 60 Final – Proposal for a Council directive on consular protection for citizens of the Union abroad. COM/2011/0881 2011/0432 (CNS) point 3.3.1.(4), p. 8. 61 COM(2011) 149 final, OJ C/2011/140/16, point 3.3.1. 62 Council Decision of 8 November 2007, OJ L 314, 2007/779/EC, Euratom, establishing a Community Civil Protection Mechanism, pp. 9-19, Art. 2(10). 63 This is what happened during the Libyan crisis as well to support the consular representations in evacuating the EU citizens as soon as possible. For example Hungary provided an airplane for the evacuation of EU citizens, which was financed jointly by the member states through the Mechanism. They also used the consular on-line system for the exchange of information between consular representations during the Libyan conflict.

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Imola Schiffner r­ eport. The plans/reports aiming at the creation of the protection of EU citizens deemed it possible to establish the so-called European consulates in the most affected regions, where a large number of EU citizens travel, yet there are less EU representations in the area.64 Such common offices would not only mean a beneficial solution for smaller Member States without their own representations, but they would also ­provide a sort of cost-effective solution for the Member States.65 In the system following the changes brought about by the Lisbon Treaty, we can monitor the realization of these ideas as well.

19.4.2    Common Offices The Green Paper prepared by the Commission suggested the establishment of so-called common offices.66 These common offices would provide the unity of functions in a cost effective way so that at the embassy of a member state or at the same location as the Commission’s delegations, the consular officials would continue to complete their consular tasks under the authority of their own member state.67 Common offices, i.e. co-location arrangements, of member states and the EU delegation in a given third country could potentially save costs, enhance ­mutual cooperation of national consular staff and compensate for limited consular presence.68 According to the recommendations of the Action Plan, the establishment of common offices and agencies would complete the so-called lead state system. These offices would operate on a permanent basis based on the concept of joint representation and distribute their expenses proportionately.69 However, the possibility of the creation of common ­offices has not been sufficiently clarified yet, not even in light of the provisions and proposals of the Green Paper, since it is not clear on what basis in which cases would these offices provide consular assistance. Would all member states’ citizens be provided assistance 64 The Carribean, the Balkans, the area of the Indian Ocean, Western-Africa. 65 The cooperation of member states in this field is operational on a regional level already, the Joint FrancoGerman Consular Office, North East England and the possibility of joint representations has also attracted the interest of other member states: Bulgaria and Slovenia. 66 The only presently existing common office operates in the Republic of Moldova, as a joint visa application centre, which is open to all EU citizens. 67 Green Paper, point 4.1. 68 COM(2011) 149 final, OJ C/2011/140/16, point 2.3.2. 69 Action Plan point 5.3. p. 10.

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  19  Protection of European Citizens in Third States under Article 23 TFEU by these offices, or only the citizens of those member states that do not have representation in the particular third state?70 However, the idea of the Action Plan, according to which the protection of EU citizens would be afforded by the delegations of the Commission, is particularly interesting. Although the Member States have the primary responsibility for ensuring protection to their citizens, the delegations could, where authorised by the Council, exercise protection in matters falling under Community competence in line with the case-law of the Court of First Instance.71 As the Action Plan sets out, the protection of citizens is primarily the task and responsibility of states, the action for citizens on an international level is a fundamental right under the sovereignty of states.72 Nevertheless, the document entitled Guidelines on consular protection, which has already been published in 2006, considers the Commission delegation as a unit actively contributing to providing protection, which can contribute to the enforcement of Article 20 TEC (now Art. 23 TFEU) in cooperation with the consular and diplomatic representations of the member states. The establishment of the European External Action Service could mean a solution to this problem.

19.4.3   The Delegations of the European Union The Commission delegations originally provided logistical support73 in relation to consular assistance.74 With the entry into force of the Lisbon Treaty, the external representations of the European Commission were incorporated into the European External Action Service (hereinafter ‘EEAS’) and became the diplomatic representations (Union delegations) of the European Union.75 Union law provide a sui generis status to the EEAS. The EEAS is independent, at least regarding its administrative budget and its employees,76 however, in order to fulfil its tasks it cooperates with the Commission, who has been performing foreign affairs tasks 70 This question is asked by the British position as well in connection with the Green Paper. 71 Since 1 December 2009 it is called the General Court. Action Plan point 5.5. 72 It is questionable if the member states would consent to this type of restriction of their own authority, and if this measure would be acceptable under the presently existing practice of international law in the case of basically an international organization. 73 Council of the European Union, Guidelines on Consular Protection of EU Citizens in Third Countries, 15505/10. 26 October 2010, point 4. 74 In January 2009 during the Gaza conflict the EU delegation was able to evacuate around 100 people from the area. 75 There are more than 130 EU delegations in more than 150 states. 76 The European Parliament has supervisory powers in this area.

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Imola Schiffner as well, as well as the General Secretariat of the Council. The staff of the EEAS is made up of three sources: the General Secretariat of the Council, the relevant departments of the Commission, and the staff of the member states.77 The representations however were put under the control of the High Representative for Foreign Affairs and Security Policy, and this can also mean that in the future these representations will complete the foreign relations related tasks that have been completed by the state holding the presidency of the European Union up to now.78 This makes it possible for them to take over the local functions that have been fulfilled by the EU presidencies so far in the framework of the European Union’s local level representation. The delegations of the EU work under the leadership of the head of delegation, which has the authority to represent the EU in the particular state, exercising thereby the function of ‘Ambassador’ of the European Union. The head of delegation is accountable to the High Representative and can receive guidelines, instructions from the High Representative and from the EEAS.79 In other respects the delegations of the Union can operate within the framework of immunities and privileges provided by the 1961 Vienna Conventions. The delegations intend to operate in close cooperation with the diplomatic services of the member states.80 During this, they have the authority81 to support the member states upon their request in the conduct of their diplomatic relations and the provision of consular protection to EU citizens in third states.82 According to the 2011 report of the High Representative for Foreign Affairs and Security Policy, however, this authority of the delegations is highly debated between the member states; according to Ashton “it is difficult to see how this objective could reasonably be achieved on a resource neutral basis.” According to the High Representative, the capacities of the delegations are already limited in this area.83 That is why Ashton finds that the delegations should concentrate on the coordination of the evacuation of EU citizens and on the dissemination of information.84 77 Presidency report to the European Council on the European External Action Service, 14930/09, 23 October 2009, point.1. 78 Presidency report to the European Council on the European External Action Service, 14930/09, 23 October 2009, point 31. 79 Draft Council decision of 25 March 2010, establishing the organization and functioning of the European External Action Service, 8029/10, p. 4,. Council Decision of 26 July 2010, 2010/427, OJ 2010, L 201/30, establishing the organization and functioning of the European External Action Service, Art. 5. 80 Draft Council decision 8029/10, p. 4, Council Decision of 26 July 2010, 2010/427, OJ 2010, L 201/30, Art. 3. 81 Art. 35 of the Treaty of the European Union states that the diplomatic and consular representations of the member states and the delegations of the European Union contribute to the enforcement of the right to consular protection of EU citizens mentioned in the TFEU. 82 One of the tasks of the delegations of the European Union is also to ‘fulfil the needs’ of other European institutions, thus to represent the European Council and the European Parliament in their relations with third states and other international organizations. – Council Decision 2010/427, OJ 2010, L 201/30, Art. 5. 83 Report by the High Representative to the European Parliament, the Council and the Commission of 22. December 2011, PROC HR(2011) 018. point 20. 84 Ibid.

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  19  Protection of European Citizens in Third States under Article 23 TFEU 19.5 The Strengthening of the Consular Protection of EU Citizens in Light of the New Regulation The majority of EU citizens are still unaware about their right to request consular protection from other member states in third states.85 The European Commission launched a consultation in July 2010 where the participants believed that using the innovations of the Lisbon Treaty, the Commission finally has the possibility to strengthen the enforcement of Article 23 TFEU to make it more effective. Emphasis was primarily put on awarenessraising86 and making the protection more effective.87 The Commission undertook to examine the legislation and practice of member states concerning consular protection, and to evaluate the extent and nature of their differences.88 Concerning the extent of protection, the aim of the Commission is to achieve the legitimation of the protection provided in the territory of third states concentrating on the practical aspects of consular protection, examining the possibilities of a ‘clause’ placed in international treaties regarding the necessary consent of third states. The Commission encourages the member states to include a consent clause in their future bilateral agreements with third states. Similarly, the Commission plans to include a consent clause in the future ‘mixed’ agreements between member states, the European Union and third states.89 However, the biggest problem impeding the effective protection of EU citizens is certainly the differences in the content of protection granted by member states. The national regulations concerning consular assistance show a significant difference, even though they ­exhibit common features and best practices as well. In the following points we summarize where the Commission finds it necessary to develop the current regulation and to unify the consular practices of member states.90 1. The family members of EU citizens are usually excluded from the scope of consular protection. It should be clarified who can be considered a family member on an EU level, and the regulation should be unified in a way that family members would be 85 According to the available data only a few cases have occurred when an EU citizen asked for assistance from another member state, and the relevant statistics have not been gathered in all member states. 86 The Commission already suggested to the member states to indicate the related article of the Treaty about the protection of EU citizens in the national passports, which are issued after 1 July 2009. Austria, Belgium, Bulgaria, Cyprus, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Romania, Slovenia, Sweden, Spain and the United Kingdom have already fulfilled this proposal. 87 In its Action Plan of 2007-2009 the Commission suggested further measures, including the organization of an information campaign, which would call attention to the available possibilities with the distribution of information materials. They planned the training of the consular representatives, and the enhancement of their possibility to gather information by organizing seminars where they can discuss the arising problems. 88 The communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Effective consular protection in third countries: the contribution of the European Union; Action Plan 2007-2009, point 5.2.1. 89 Action Plan point 5.5 . 90 Commission Work Programme for 2011 (COM 2010 623).

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Imola Schiffner entitled to protection in a crisis situation the same way as EU citizens. In the current situation refugees, stateless persons and non-EU family members are not included in the personal scope, nevertheless, the general approach is that in a crisis situation, member states do provide assistance to non-EU family members. 2. It needs to be clarified which member state has to help the EU citizen who is unrepresented, and how it will cooperate with the given citizen’s own member state. Another issue is what exactly the EU citizen can expect in the absence of common EU norms. 3. The practice of states is different with respect to the financial implications of consular assistance as well. According to the current practice, the assisting state must first obtain authorization from the own state of the EU citizen, which state then has to reimburse the costs of the assisting state, even if by asking the citizen to reimburse the costs. The member states only shoulder smaller costs, and only as a last resort. According to the intentions of the Commission, the reimbursement of the expenses must be made within 12 months in a crisis situation. 4. The question of the consent of the third state regarding the consular protection of citizens of another state. The Commission encourages the member states to include a so-called clause of consent in their future bilateral agreements, which states that the third state agrees that the foreign representation of a member state can provide assistance to a citizen of another EU member state under the same conditions as it would to her own citizens. In 2011, however, the Commission finished its first proposal, the Proposal for a Council Directive on consular protection for citizens of the Union abroad, which seeks to resolve the questions left open. The Proposal would provide the third state family members of EU citizens with the same level of protection that the third state family members of the member state’s own citizens are provided with.91 It further reinforces the view that EU citizens can turn to the embassies or consulates of ‘any’ other member state, by furnishing the member states with authority to conclude ‘specific agreements’ with each other. Furthermore, the proposal states what kind of assistance the member states can provide based on the common practice of consular protection of member states.92 Besides specifying in what type of cases an EU citizen can expect assistance, the directive proposed by the Commission,93 would replace the 1995 decision which requires modification and amending, taking into account the legal framework established by the Lisbon Treaty. 91 Final – Proposal for a Council directive on consular protection for citizens of the Union abroad. COM/2011/0881 2011/0432 (CNS), point 3.3.1.(1), p. 7. 92 Ibid., para. 6, p. 16. 93 The consular protection referred to in para. 1 shall include assistance in the following situations: arrest or detention; being victim of a crime; serious accident or serious illness; death; the assistance of people in distress and their repatriation; the need for temporary travel documents. in: Final – Proposal for a Council directive COM/2011/0881 2011/0432 (CNS), Art. 6.

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  19  Protection of European Citizens in Third States under Article 23 TFEU The Commission addresses the issue of financial burden-sharing as well,94 determining that the member states should only provide financial assistance as a last resort.95 A costreimbursement procedure will be introduced, which will be adjusted to crisis situations.96

19.6 The Evaluation of the Present Situation and Conclusions The European Union, due to the innovations brought about by the Lisbon Treaty, attempts to achieve the cooperation of member states in an area that used to belong entirely to the exclusive sovereignty of member states. However, not even the EU consular protection introduced by the Maastricht Treaty could change the fact that in this area, states would undertake the responsibility at most to negotiate with each other, and to create the necessary regulations. As a result of this the Hungarian government – in accordance with the objectives of the Hungarian EU presidency – amended the Hungarian consular rules.97 The amendments establish the legal framework for a closer cooperation between the consular services of member states in several ways. Within this framework, on the last page of the new passports with the label ‘Hungary’ the right defined in Article 23 TFEU is cited and a separate provision98 ensures the right to issue the temporary travel document established in the decision of 1996,99 i.e. the ETD (Emergency Travel Document) for a single journey to the state of origin of the applicant, to his/her country of permanent residence, or in exceptional cases to another destination. The amendment of the consular act tries to facilitate the management of crisis situations affecting European citizens as well by broadening the range of instruments that can be used for prior notification in case of a Hungarian national’s stay abroad.100 But since the right to protection of EU citizens has become part of EU legislation, the member states should be prepared for the fact that the European Union could ‘force’ them to give up their previously unlimited sovereignty by harmonizing this area as well. The recent crises in North Africa and Japan were once more proof of what kind of dangers EU citizens can be exposed to. Thus it is important that the member states admit that

94 Final – Proposal for a Council directive, COM/2011/0881 2011/0432 (CNS) paras 10, 17, p. 16. 95 Final – Proposal for a Council directive COM/2011/0881 2011/0432 (CNS) para. 17, p. 16. 96 This entails simplifying the procedural exchange involving consular authorities and citizens, adding standard formats for requests and introducing an easier system for tracking the reimbursement costs (on a prorata basis, fixed rates – in case costs cannot be calculated). 97 Act CLXIX of 2012 on Consular Protection. 98 Act XII of 1998 regulating travel abroad, para. 10. 99 Decision of 9 July 1996, 6/409/CSFP, OJ L 168 of the Representatives of the Governments of the Member States, meeting within the Council of 25 June 1996 on the establishment of an emergency travel document, pp. 4-11. 100 Act XLVI of 2001 on Consular Protection, para. 2/A.

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Imola Schiffner contrary to previous legal practice they should not, or not only determine the necessary regulations among each other, but make use the assistance of the Union that render the protection afforded more effective. The Lisbon Treaty empowers the Commission to propose guidelines that establish the cooperation and coordination necessary to promote the consular protection of unrepresented citizens which is equal to the protection of EU citizens. Meanwhile, the Commission has to bear in mind the objective of the report Dismantling the obstacles to EU citizens’ rights during the cooperation and coordination with member states. The Lisbon Treaty confirmed and clarified the right of EU citizens to consular protection. The right of EU citizens to consular protection appears clearly as an individual right in the Lisbon Treaty, which may be subject to judicial review. The Lisbon Treaty also brought a change by rejecting the intergovernmental model used previously in the area, and authorizing the Commission to propose directives concerning the issue, coordinating the area, cooperating with the representatives of the Council and the European Parliament. Moreover, the newly established European External Action Service can act to frame the protection provided for EU citizens as effective as possible, making it easier for the foreign representations of member states to comply with the obligations, rendering the practice of consular assistance more coherent at the same time.101 Even though the previous experience shows that unified action does not cause a disruption in crisis situations, since the member states with different national regulations were able to coordinate their steps and act effectively,102 it is important that the form and content of the protection that EU citizens are entitled to is predictable, replacing the practice of the member states of deciding on a case-by-case basis, thus avoiding a possible differentiation between EU citizens. That is why the Commission suggests and aims at the adoption of rules of general scope in the future, which can be the basis of an EU level consular assistance.103 The European Court of Justice can contribute to this aim through interpretation and legal development in the same way it did related to other EU citizenship rights. However, making the protection of EU citizens in third states a truly enforceable right which works well in practice depends on the cooperation of member states. The tools for cooperation are already available, the task in the next period will enable the member states to act in order to protect the citizens of the European Union exactly by making use of these forms of cooperation. 101 The competences of the EEAS and the role of the delegations in consular cases will be reviewed in 2014. 102 During the recent crises (for example Libya, Egypt, Haiti, the Icelandic volcanic ash cloud) consular assistance was provided through telephone conferences and through the EU Joint Situation Centre, It was coordinated through a safe EU website (‘on-line consulate’) designed to distribute information between the consular authorities of the EU, which proved to be useful in mapping the on-site situation and the available capacities of the member states. 103 According to the judgment of the Council, the common tools and common procedural rules are missing. Council of the European Union, Guidelines on Consular Protection of EU Citizens in Third Countries 26 October 2010, 15505/10, p. 8.

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Part V Hungarian State Practice

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20

La loi sur le Traité de Lisbonne devant la Cour Constitutionnelle de Hongrie1

Péter Kovács* Le 12 juillet 2010, la Cour Constitutionnelle a rejeté dans sa résolution n° 143/2010. (VII.14.) AB un recours soumis par un particulier et dirigé contre la Loi de promulgation du Traité de Lisbonne. (Loi CLXVIII de 2007) Le recours a prétendu que les règles et les nouveaux mécanismes du Traité de Lisbonne menacent l’existence de la République de Hongrie, en tant qu’État de droit indépendant et souverain.2 La Cour Constitutionnelle a constaté que le raisonnement et les exemples du requérant sont plus ou moins les mêmes que ceux qui ont été débattus devant les autres cours constititionnelles européennes dans le cadre du contrôle de constitutionnalité a priori du Traité de Lisbonne, effectué sur la demande des gouvernements nationaux, des députés, des sénateurs ou des chefs d’État.3 La Cour Constitutionnelle a minutieusement étudié ces dicta et les critiques scientifiques dirigées contre certains d’entre eux.4 Même si l’institution du contrôle de la constitutionnalité a priori des traités existe aussi en Hongrie, son déclenchement est réservé au gouvernement et au chef d’État: or, en 2007, ni l’un, ni l’autre n’a saisi la Cour Constitutionnelle à ce sujet.

1 La Cour Constitutionnelle publie ses résolutions rendues inter alia dans les volumes annuels intitulés Alkotmánybíróság Határozatai (Recueil des Résolutions de la Cour Constitutionnelle, infra ABH) La résolution n° 143/2010. (VII.14.) AB a été publiée dans l’ABH 2010, pp. 698-722. * Péter Kovács est juge à la Cour Constitutionnelle de la République de Hongrie et professeur de droit international à l’Université Catholique Péter Pázmány. (Les considérations ci-dessous sont développées ès qualité d’universitaire et bien entendu n’engagent en rien la Cour constitutionnelle.) Cet article – dont les références bibliographiques ont été mises à jour et il a été complété d’une courte présentation de l’article pertinent de la Loi fondamentale, entrée en vigueur le 1 janvier 2012 – a été publié à la première fois comme un chapître distinct du livre de l’auteur: Péter Kovács, Introduction à la jurisprudence de la Cour Constitutionnelle de la République de ­Hongrie  – Approche thématique, Universitätsverlag, Regensburg 2011, Vol. 1 de la Série Entwicklungen im ­ ­Europäischen Recht (Ed.) Rainer Arnold. 2 ABH 2010, p. 698. 3 See en particulier les décisions de la Cour Constitutionnelle fédérale allemande (la décision 2 BvE 2/08, ­rendue le 30 juin 2009) et de la Cour Constitutionnelle tchèque (la décision Pl. ÚS 19/08, rendue le 28 ­novembre 2008 et la décision Pl. ÚS 29/09, rendue le 3 novembre 2009) 4 ABH 2010, pp. 699-700.

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Péter Kovács La Cour Constitutionnelle a tout d’abord vérifié sa compétence au sujet de la loi de promulgation5 et elle est arrivée à conclure que même si le Traité de Lisbonne est déjà entré en force, modifiant le traité sur l’Union européenne et le traité instituant la Communauté européenne (traité dont le titre a été changé pour Traité sur le fonctionnement de l’Union européenne), ceci ne veut pas dire pour autant que la loi de promulgation devrait être traitée d’une manière différente que les lois ordinaires et les autres normes juridiques qui peuvent être attaquées par les particuliers, dans l’esprit du système dit actio popularis garanti par la loi sur la Cour Constitutionnelle.6 La Cour Constitutionnelle a cependant averti que dans le cadre du contrôle a posteriori de la loi, une attention particulière est due au fait que la Hongrie soit un pays membre de l’Union européenne. C’est pourquoi une résolution qui aurait constaté – supposons – l’inconstitutionnalité ne pourrait pas menacer l’exécution scrupuleuse des obligations liées à l’appartenance à l’Union européenne. Selon la Cour Constitutionnelle, dans ce cas, le parlement devrait agir pour créer une situation où les obligations européennes peuvent être exécutées sans que la Constitution ne soit lésée.7 À ce sujet, la Cour Constitutionnelle n’a pas voulu être si explicite qu’elle l’avait été lors de l’adoption de la résolution n° 4/1997. (I.22.) AB, précitée.8 La formule retenue présente bien l’héritage de cette résolution, mais elle faisait attention de ne pas suggérer des obligations dont la réalisation est en fait quasiment impossible. Les caractéristiques du système juridique de l’Union européennes ont été également prises en compte lors du toilettage de la formule héritée. Dans l’hypothèse visé, il incomberait donc au législateur de décider si le gouvernement devrait agir au niveau diplomatique européenne ou bien si le cas échéant, une révision constitutionnelle serait la solution adéquate du conflit.9 En tant qu’avertissement clair pour l’avenir, la Cour Constitutionnelle a cependant souligné que dans le cas des traités aussi importants, les autorités compétentes doivent profiter de leur prérogatives et déclencher la procédure du contrôle de constitutionnalité a priori.10 Ibid., p. 700. Ibid., p. 701. Ibid., p. 703. “La résolution de la Cour Constitutionnelle constatant une inconstitutionnalité ne devrait pas produire d’effet sur les engagements internationaux de la République de Hongrie. Suite à cette résolution de la Cour Constitutionnelle, le législateur doit garantir l’harmonie entre l’obligation internationale et le droit interne: ou bien par le fait que la République de Hongrie dénonce la partie du traité international qui contredit la Constitution, ou bien par le fait qu’on arrive à modifier le texte du traité ou bien – en cas de besoin – c’est la Constitution qu’on doit modifier. La Cour Constitutionnelle a le pouvoir de suspendre la délibération sur la fixation de la date de l’annulation pour un délai opportun jusqu’à ce que ladite harmonie soit réalisée.” Résolution n° 4/1997. (I.22.) AB, ABH 1997, p. 52. Pour le commentaire cf. de l’auteur ‘Les chemins suivis lors d’un conflit entre une norme constitutionnelle et le droit international dans la pratique de la Cour Constitutionnelle’, Jahrbuch für Ostrecht, Band 50(2) 2009, pp. 329-337. 9 Cette partie reflète les considérations personnelles de l’auteur. 10 ABH 2010, p. 705. 5 6 7 8

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20  La loi sur le Traité de Lisbonne devant la Cour Constitutionnelle de Hongrie Elle a établi que la délibération sur le recours présent est intimément liée au fait que le contrôle de constitutionnalité a priori n’a pas été sollicité.11 La Cour Constitutionnelle a reconnu que l’interprétation authentique des traités européens et des autres normes du droit communautaire appartient à la Cour de Justice de l’Union européenne.12 La Cour Constitutionnelle a cependant profité de la théorie de l’acte clair, et c’est pourquoi elle n’a pas été obligée de saisir la Cour de Justice de l’Union européenne car il était évident que les arguments par lesquels le requérant a contesté la constitutionnalité de la loi de promulgation reposaient sur une lecture erronnée et superficielle du Traité de Lisbonne.13 C’est pourquoi le rappel du texte complet de l’article 49/A (désormais Art. 50) du Traité sur l’Union européenne suffit en lui-même pour voir que, contrairement aux suppositions du requérant, aucun État ne peut être obligé de rester dans l’Union européenne s’il ne le veut plus.14 Suivant encore la philosophie de l’acte clair, la Cour Constitutionnelle a estimé que pour rejeter les parties restantes du recours, il suffit de rappeler les informations les plus évidentes de notoriété publique sur l’Union européenne telle qu’elle se présente après Lisbonne15 : p.ex. l’attribution du caractère juridiquement contraignant à la Charte des droits fondamentaux ou bien l’élargissement des compétences de contrôle des parlements nationaux, en vertu du protocole n°2 sur la subsidiarité et la proportionnalité, etc. Tout cela montre que les arguments du réquérant sur les dangers du Traité de Lisbonne sont dépourvus de fondement.16 La Cour Constitutionnelle a aussi interprété les articles pertinents17 de la Constitution sur la souveraineté, la démocratie, l’État de droit et la coopération européenne.18 Elle a

Ibid., p. 700. Ibid., p. 703. Ibid., p. 703. Ibid., pp. 703-704. ABH 2010, pp. 708-709. Ibid., p. 708. Extraits de la Constitution: Art. 2 “(1). La République de Hongrie est un État de droit indépendant et démocratique. (2) Dans la République de Hongrie tout le pouvoir appartient au peuple, qui exerce la souveraineté populaire par ses représentants élus, ainsi que directement.” Article 2/A de la Constitution “(1) La République de Hongrie, en tant que membre de l’Union européenne peut, en application d’un traité, exercer certaines compétences constitutionnelles en commun avec d’autres États membres dans la mesure nécessaire à l’exercice des droits et des obligations prévus par les traités de fondation de l’Union européenne et des Communautés européennes (ci-après désignées comme l’ Union européenne); ces compétences sont exercées séparément et au moyen des institutions de l’Union européenne. (2) Une majorité de 2/3 des voix des députés au parlement est requise pour l’adoption et la ratification du traité international spécifié dans le § 1.” Art. 6 (…) (4) “La République de Hongrie contribue à l’achèvement de l’unité européenne pour que la liberté, le bienêtre et la sécurité des peuples européens soient réalisés.” 18 ABH 2010, p. 706-707. 11 12 13 14 15 16 17

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Péter Kovács constaté que la clause européenne ne peut pas être interprétée dans le sens qu’elle vide les clauses sur la souveraineté et l’État de droit de leur substance19 (contrairement aux cours constitutionnelles allemande et tchèque, la Cour Constitutionnelle n’a cependant mentionné aucun point de non-retour, ou limite inhérente de l’intégration européenne ou domaine exclusif et réservé pour toujours à la législation nationale). La Cour Constitutionnelle a rappelé sa jurisprudence constante que le détenteur de la souveraineté – en effet, le parlement – est en droit de limiter l’exercice des attributions de la souveraineté.20 La Cour Constitutionnelle a souligné que les règles matérielles et procédurales ont été observées quand la loi de promulgation a été adoptée et quand le parlement a donc donné librement son consentement à l’adoption du contenu du Traité de Lisbonne.21 La Cour Constitutionnelle est parvenue à conclure que même si les réformes du Traité de Lisbonne ont une importance capitale, elles n’ont pas modifié la situation où la Hongrie maintient son indépendance, son caractère d’État de droit et sa souveraineté. Par conséquent, le recours a été rejeté dans tous ses éléments.22 Deux opinions séparées23 et une opinion dissidente24 ont été jointes à la résolution.25 En guise de conclusion, il faut souligner qu’en automne 2012 – c’est à dire lors de l’ajout de ces toutes dernières lignes – deux années se sont écoulées passé depuis que la Cour avait rendu cette résolution. Entretemps, le parlement, en tant que détenteur du pouvoir constituant, a adopté une nouvelle constitution: le 1er janvier 2012, la Loi Fondamentale remplaçant la Constitution est entrée en vigueur. Toutefois, son article “E” portant sur l’Union européenne est très proche de l’article 2/A de l’ancienne constitution.26 Ibid., p. 708. Ibid., p. 709. Ibid., p. 709. Ibid., p. 710. L’une a été écrite par le président P. Paczolay et a été co-signée par le juge M. Lévay ABH 2010, pp. 710-712, l’autre a été écrite par le juge L. Trócsányi ABH 2010, pp. 713-714. 24 Écrite par le juge A. Bragyova. ABH 2010, p. 714-722. 25 Le juge rapporteur de la résolution était l’auteur de ces lignes. 26 L’article E: (1) Dans l’objectif de l’épanouissement de la liberté, du bien-être et de la sécurité des peuples européens, la Hongrie participe à la construction de l’unité européenne. (2) La Hongrie, en tant que membre de l’Union européenne, peut, en application d’un traité, exercer certaines compétences constitutionnelles en commun avec d’autres États membres dans la mesure nécessaire à l’exercice des droits et des obligations prévus par les traités fondateurs des Communautés européennes et de l’Union européenne: ces compétences sont exercées séparément et par le biais des institutions de l’Union européenne. (3) le droit de l’Union européenne – dans le cadre de l’alinéa (2) – pourra fixer des règles générales contraignantes. (4) Le mandat nécessaire à la ratification et la promulgation d’un traité visé dans le paragraphe (2) doivent faire l’objet d’un vote de l’Assemblée nationale à la majorité des deux riers. La traduction française a été prise de l’ouvrage suivant: Démocratie, finances, Europe: les déficits hongrois. Rapport d’information de M. Bernard PIRAS, fait au nom de la commission des affaires européennes n° 684, 2011-2012 – 19 juillet 2012, p. 61. 19 20 21 22 23

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20  La loi sur le Traité de Lisbonne devant la Cour Constitutionnelle de Hongrie L’institution de l’actio popularis n’a pas été reconduite dans la Loi fondamentale, ainsi la dilemme de la Cour encore très perceptible dans la Résolution rendue sur le traité de Lisbonne (à savoir comment se comporter vis-à-vis la loi de promulgation d’un traité de l’Union européenne dans une situation où le contrôle a priori n’avait pas été sollicité au moment opportun et que la Cour était sérieusement limitée par ses propres “précédents” exaltant les vertus de l’actio popularis27) ne se répètera pas. Cependant, la résolution de la Cour ne perdra pas de son importance en ce qui concerne l’avertissement pour procéder en bon temps – c’est à dire avant leur ratification – au contrôle a priori des traités modifiant l’Union européenne. La Cour a évité d’entrer dans la guerre intellectuelle sur le conflit éventuel entre l’identité nationale et la construction ­européenne ou de spéculer sur un conflit hypothétique entre une identité nationale constitutionnelle très mal définie et une réforme institutionnelle européenne encore moins visible. Elle a rappelé cependant les liens intrensêques entre l’approfondissement de l’intégration et l’exercice des prérogatives du parlement avant que de nouveaux transferts de compétences ne soient réalisés.

27 cf. sur ce sujet: Péter Kovács: Les expériences de l’actio popularis dans la jurisprudence de la Cour Constitutionnelles de Hongrie: raisons et conséquences de sa disparition. Rapport au 6e Congrès de l’ACCPUF (Association des Cours Constitutionnelles ayant en Partage l’Usage du Français), organisé à Marrakech, les 4-6 juillet 2012 sur le thème ‘Le citoyen et la juge constitutionnel’. (à paraitre dans les actes du congrès). cf. encore: Péter Kovács: Le Parlement et la Cour Constitutionnelle en Hongrie, in: Philippe Xavier (sous la dir): Juges Constitutionnels et Parlements: Annuaire International de Justice Constitutionnelle 2011 (XXVII), Paris: Economica, Presses Universitaires d’Aix-Marseille, 2012. pp. 281-290, et en. particulier p. 284.

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21

Multilevel Protection of Fundamental Rights in the European Union and in Hungary

Elisabeth Sándor-Szalay and Ágoston Mohay* 21.1 Introduction The system of fundamental rights, which is considered a significant element of the ­European legal order, has undergone remarkable changes in the past two decades.1 The changes perceivable in the field of international law (including but not limited to the much discussed fragmentation of international law2) have, along with the ever increasing convergence of national law, international law and EU law raised inter alia a number of theoretical and practical questions related to the protection of fundamental rights. Courts are considered actors of increasing relevance at the international level, thus, inconsistent judicial practice and the correlation of various courts represent issues of great importance in the field of fundamental rights protection. The transformation of the role of the state, the trend where international factors increasingly affect the status of individuals and various transnational conflicts cause tremors in the foundations of the international legal order, all call into question the aptness of the state to assume the role of ultimate protector of fundamental rights and guarantor of international security. According to the ‘division of labour’ construed decades ago on the European continent, the task of protecting fundamental rights lay partly with internal (national) law, and partly with the European Convention on Human Rights and the European Court of Human Rights established within the framework of the Council of Europe – which, however, was

* Ágoston Mohay is senior lecturer and Elisabeth Sándor-Szalay is associate professor at the University of Pécs, Faculty of Law, Department of International and European Law. 1 This article is a revised and extended continuation of the FIDE national report prepared by the authors in: J. Laffranque (Ed.), The Interaction between the Charter of Fundamental Rights of the European Union, the ­European Convention on Human Rights and National Constitutions. Reports of the XXV FIDE Congress, ­Tallinn, 2012, Vol. 1. For the Hungarian national report in this volume see Á. Mohay & E. Sándor-Szalay, National Report – Hungary, pp. 501-533. 2 For a detailed analysis see e.g., A. Fischer-Lescano & G. Teubner, ‘Fragmentierung des Weltrechts  – ­Vernetzung globaler Regimes statt etatistischer Rechtseinheit’, in: M. Albert & R. Stichweh (Eds.), Weltstaat – Weltstaatlichkeit: Politische Strukturbildung nach der Globalisierung. 2005 (last accessed 27 Septemeber 2012).

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Elisabeth Sándor-Szalay and Ágoston Mohay not a visible element in the institutional set-up of European economic integration.3 As is the nature of things, the deepening of economic integration in the European Union has r­ esulted in a trend, where the case law of the Court of Justice of the European Union ­focused more and more on the protection and interpretation of fundamental rights.4 Today the question is not whether certain fundamental rights may be relied upon before an international or a European court (provided that the necessary requirements have been f­ ulfilled). The question is much rather which European court has jurisdiction to rule on the fundamental rights issue at hand – obviously taking national court proceedings into account as well. Similarly, the basis of the relationship between European courts is also disputed: is it governed by a framework established via an international treaty, or much rather based on random, coincidental judicial interactions? The two mammoth-organizations of Europe, the European Union and the Council of­ Europe have – following rather lengthy preparations – in the recent years attempted to connect the already existing protection of ECHR rights with the case law based judicial protection of fundamental rights of the EU system in a concrete, regulated fashion, at the same time establishing a channel of communication between the Strasbourg and Luxembourg courts. The accession of the Union to the European Convention on Human Rights is an admirable attempt – the success of which is threatened by the fact that both of these organizations are currently in crisis: the Union struggles to solve the financial crisis, the Council of Europe and the ECtHR strive for better budgetary conditions and rules e­ nabling a more rational functioning. In a sense, the ECtHR is also a ‘victim’ of its unparalleled popularity. In the meantime, European public opinion does not take note of the unprecedented ­opportunity that the Strasbourg review of EU law will mean for the citizens of the Union – besides national legislators and authorities. On top of all this the free (and less free) movement of persons throughout the European continent, the legal and illegal m ­ igration between European countries and from third countries to Europe in all their possible forms have become natural everyday phenomena. This study endeavours to highlight the most obvious questions arising from the interaction of the fundamental rights system of the Union, the national (and more precisely the Hungarian) system of fundamental rights and the European Convention on Human Rights – without the intention of being fully comprehensive. Following 1 December 2009, the entry into force of the Lisbon Treaty and the Charter of Fundamental Rights of the European Union, and the future accession of the Union to the European Convention on Human Rights, the need to analyse these relationships seems as topical as ever.

3

For the sake of simplicity we will use the following abbreviations: European Court of Human Rights: ECtHR or Strasbourg Court; European Convention on Human Rights: ECHR or Convention. 4 Once again for the sake of simplicity, instead of the Court of Justice of the European Union we will use the expressions CJEU, Court of Justice or Luxembourg Court.

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  21  Multilevel Protection of Fundamental Rights 21.2 The Correlation of Hungarian Law, International Law and EU Law In order to be able to analyse the current system of the protection of fundamental rights in Hungary and Europe, we first need to clarify the relationship between the three legal systems at hand.5

21.2.1   Hungarian Constitutional Law and Practice According to Hungarian constitutional practice,6 the relationship between public international law and Hungarian law can best be described as a form of moderate dualism.7 Following the accession treaty that entered into force on 1 May 2004, the proper place and status of EU law within the Hungarian legal system also needed clarification.8 The Hungarian Constitution dating from 19499 was in force until 1 January 2012 and applied a differentiated treatment of traditional international obligations and obligations originating from EU membership: Article 7(1) contained the rules regarding international law, whereas Article 2/A (introduced in 2002) referred in a somewhat indirect way to EU law. The differentiation of obligations arising from international law and EU law, the ambiguous wording of Article 2/A and the fact that the Constitution did not clarify the position of EU law within the Hungarian legal system led to the result that the Hungarian

5 P. Kovács, ‘Les constitutions nationales et les traités européens’, in: M. Pogačnik et al. (Ed.), Challenges of Contemporary International Law and International Relations – Liber Amicorum in Honour of Ernest Petrič, Nova Gorica, Europska Pravna Fakulteta v Novi Gorici 2011, pp. 245-263. 6 Based essentially on Decison 4/1997 (I.22.) of the Constitutional Court (regarding the ex post constitutional review of acts promulgating international treaties), and on Act L of 2005 on Procedures relating to International Agreements. 7 P. Sonnevend, ‘Application of EU Law and the Law of the European Convention of Human Rights in Hungary’, in: G. Kajtár & G. Kardos (Eds.), Nemzetközi jog és európai jog: új metszéspontok. Ünnepi tanulmányok Valki László 70. Születésnapjára, Bibliotheca Juridica ELTE, Libri Amicorum 40, Budapest, Saxum-ELTE ÁJK 2011, pp. 213-214; G. Sulyok, ‘A nemzetközi jog és a belső jog viszonyának alaptörvényi szabályozása’, 1 Jog-Állam-Politika, 2012, pp. 17-59; T. Molnár, G. Sulyok Gábor & A. Jakab, ‘7.§ [Nemzetközi jog és belső jog: jogalkotási törvény]’, in: A. Jakab (Ed.), Az alkotmány kommentárja, Budapest, Századvég 2009. 8 For a detailed analysis of the position of EU law in the Hungarian legal system see L. Blutman & N. ­Chronowski, ‘Hungarian Constitutional Court: Keeping Aloof from European Union Law’,5 Vienna Journal on International Constitutional Law 3, 2011, pp. 329-348 (); M. Varjú & F. Fazekas, ‘The reception of European Union Law in Hungary: The Constitutional Court and the Hungarian Judiciary’, 48 Common Market Law Review 2011, pp. 1945-1984; L. Blutman & N. Chronowski, ‘Az Alkotmánybíróság és a közösségi jog: alkotmányjogi paradoxon csapdájában’, in: N. Chronowski, Alkotmány és jogalkotás az EU tagállamaként. Válogatott tanulmányok, Budapest HVG-Orac 2011; M. Dezső & A. Vincze, Magyar alkotmányosság az európai integrációban, 2nd edn, Budapest, HVG-Orac 2012, pp. 233-237. 9 Act XX of 1949 on the Constitution of the Republic of Hungary as revised in 1989-1990, in force until 31th of December 2011. Available at .

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Elisabeth Sándor-Szalay and Ágoston Mohay Constitutional Court assumed a sort of self-restricting role10 regarding the analysis and interpretation of EU law in its case law.11 The Constitutional Court attempted to summarize its point of view regarding EU law (especially the position of the founding Treaties in Hungarian law) in the greatest detail to date in its judgment on the constitutionality of Act CLXVIII of 2007 promulgating the Lisbon Treaty.12 The new Fundamental Law13 entering into force on 1 January 2012 declares its commitment to international law and the international community in Article Q, while Article E refers to European integration as one of the basic principles of Hungarian constitutionality. At first glance, Article E employs much the same wording as the previously applicable Article 2/A. Subsection (3) of Article E however goes a bit further, and aims to establish a clearer situation, having regard to the preceding case law of the Hungarian Constitutional Court. Essentially it aims to lay down the foundations of the correlation of EU law and Hungarian constitutionality, however, without expressly mentioning the principle of supremacy (primacy of application) of EU law vis-à-vis Hungarian law.14 The prevalent nature of the principles contained in its earlier case law, and the identical nature of ­Article 2/A of the Constitution and Article E of the Fundamental Law was confirmed by the ­Constitutional Court itself in May 2012.15

10 L. Blutman, ‘A magyar Lisszabon-határozat: befejezetlen szimfónia luxemburgi hangnemben’, Alkotmánybírósági Szemle 2, 2010, p. 90. 11 Imre Vörös disputes the widely acknowledged view that the legal order of the European Union forms part of the Hungarian legal order, although he accepts that the relationship between the two legal orders is not on of concurrence, but rather a complementary coexistence, which, in his view however lacks the appropriate constitutional benchmarks that would be necessary to guarantee its adequate functioning within the state. See I. Vörös, ‘Európai jog – magyar jog: konkurencia vagy koegzisztencia’, 66 Jogtudományi Közlöny No.7-8, 2011, pp. 369-401; and I. Vörös, Csoportkép Laokoónnal, A magyar jog és az alkotmánybíráskodás vívódása az európai joggal, Budapest, MTA Társadalomtudományi Kutatóközpont Jogtudományi Intézete 2012, p. 127. 12 AB 143/2010 (VII.14.) Á. Mohay, ‘Decision 143/2010 of the Constitutional Court of the Republic of Hungary regarding the constitutionality of Act CLXVIII of 2007 promulgating the Lisbon Treaty’, Vienna Journal on International Constitutional Law, No. 6, 2012, pp. 301-306. (2012.09.27.). 13 The Fundamental Law of Hungary was adopted on 25 April 2011 and has come into force on 1 January 2012. English text available under . The Revue Est Europa has ­devoted its first special issue of 2012 to the Hungarian Fundamental Law via contributions by Hungarian and non-Hungarian authors: