Recent human rights developments in the EU courts: The charter of fundamental rights, the European arrest warrant and terror lists

Human Rights Law Review

Volumn 7, Issue 4, 2007, Pages 793-811

  Hinarejos, Alicia ^a  

^a BRASENOSE COLLEGE   (United Kingdom)

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EID: 36549054182     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngm029     Document Type: Article

References (129)

1. Activity is undertaken across the different pillars of the European Union, with different patterns of decision-making and judicial control applying in each case.
2. [2000] OJ C 364/01.
3. Although it remains non-binding, the Commission has undertaken to check for compatibility of all legislative proposals with the Charter (internal decision of 13 March 2001). The Charter has also featured in several speeches and reports by the European Ombudsman.
4. See Craig and De Búrca, EU Law: Text, Cases and Materials, 3rd edn (Oxford: Oxford University Press, 2002) at 362-3.
5. Famously, if not for the first time, in T-177/01, Jégo-Quéré v Commission [2002] ECR 11-2365.
6. For instance, AG Tizzano in C-173/99, BECTU v Secretary of State for Trade and Industry [2001] ECR-I 4881;
7. AG Jacobs in C-50/00, Unión de Pequeños Agricultores v Council [2002] ECR 1-6677;
8. AG Stix-Hackl in C-60/00, Carpenter [2002] ECR 1-6279;
9. and AG Geelhoed in C-413/99, Baumbast [2002] ECR 1-7091.
10. C-540/03, European Parliament v Council [2006] ECR 1-5769, which challenged Council Directive 2003/86/EC on the right to family reunification, [2003] OJ L 251/12.
11. European Parliament v Council, ibid. at para. 38. This was made easier by the fact that the Directive itself referred to the Charter in its preamble.
12. See C-411/04 P, Salzgitter Mannesmann v Commission, Judgment of 25 January 2007;
13. C-432/05, Unibet, Judgment of 13 March 2007;
14. and C-303/05, Advocaten voor de Wereld, Judgment of 3 May 2007.
15. Although it has recently been agreed by all Member States to draft a new Treaty, in lieu of the failed Constitution, that will proclaim the Charter binding - if with limitations applying to the United Kingdom; see Presidency Conclusions of the Brussels European Council, 23 June 2007, 11177/07 CONCL 2.
16. As it was the case from the entry into force of the EEC Treaty until the breakdown of the Luxembourg Compromise in the early 1980s: See Arnull, The European Union and its Court of Justice (Oxford: Oxford University Press, 2006) at 639-42.
17. The Preamble of the Charter states: This Charter reaffirms, with due regard for the powers and tasks of the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Union and by the Council of Europe and the case-law of the Court of Justice of the European Union and of the European Court of Human Rights.
18. See also C-540/03, European Parliament v Council, supra n. 6 at para. 38.
19. Article 51, Charter.
20. See, inter alia, Bundesverfassungsgericht (German Constitutional Court), Decision of 18 July 2005 (2 BvR 2236/04);
21. Trybunal Konstytucyjny (Polish Constitutional Court), Judgment of 27 April 2005, No. P 1/05;
22. Judgment of the Czech Constitutional Court of 3 May 2006, PI. ÚS 66/04;
23. Supreme Court of Cyprus, Judgment of 7 November 2005, App No 294/2005;
24. Minister for Justice & Law Reform v Robert Aaron Anderson [2006] IEHC 95 and Office of the King's Prosecutor v Cando Armas [2005] UKHL 67.
25. Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, 2002/584/ JHA, [2002] OJ L 190/1.
26. An extensive recollection of this process can be found in Spencer, 'The European Arrest Warrant', (2003-04) 6 Cambridge Yearbook of European Legal Studies 201.
27. On the EAW, see Peers, EU Justice and Home Affairs Law (Oxford: Oxford University Press, 2007) at 468-73;
28. Blekxtoon and van Ballegooij, Handbook on the European Arrest Warrant (The Hague: TMC Asser, 2005);
29. and Wouters and Naert,'Of Arrest Warrants, Terrorist Offences and Extradition Deals: An Appraisal of the Main Criminal Law Measures Against Terrorism After "11 September"', (2004) 41 Common Market Law Review 909.
30. It is traditionally described as 'weaker' because the principles of primacy over national law and direct effect, for example, do not apply here. The Court has, however, extended some of the principles of EC law to the third pillar in recent case-law, causing much discussion as to whether all of them (except direct effect, excluded in the Treaty) can be extended: See C-105/03, Pupino [2005] ECR 1-5285;
31. and the comments of Fletcher, 'Extending "Indirect Effect" to the Third Pillar: The Significance of Pupino', (2005) 30 European Law Review 862;
32. Spencer, 'Child Witnesses and the European Union, (2005) 64 Cambridge Law Journal 569;
33. Spaventa, 'Opening Pandora's Box: Some Reflections on the Constitutional Effects of the Decision in Pupino, (2007) 3 European Constitutional Law Review 5 and Spaventa, 'Remembrance of Principles Lost: On Fundamental Rights, the Third Pillar and the Scope of Union Law, (2006) 25 Yearbook of European Law 153.
34. For further discussion, see also Prechal, 'Direct Effect, Indirect Effect, Supremacy and the Evolving Constitution of the European Union' in Barnard (ed), The Fundamentals of EU Law Revisited (Oxford: Oxford University Press, 2007) at 35.
35. In the Czech Republic, the challenge also concerned the abolition of the requirement of double criminality.
36. For a comment on this case, see Hinarejos, 'Bundesverfassungsgericht (German Constitutional Court), Decision of 18 July 2005 (2 BvR 2236/04) on the German European Arrest Warrant Law', (2006) 43 Common Market Law Review 583.
37. For comments on the Polish and Czech cases, see Leczykiewicz, 'Trybunal Konstytucyjny (Polish Constitutional Tribunal), Judgment of 27 April 2005, No. P 1/05' (2006) 43 Common Market Law Review 1181;
38. and Komárek 'European Constitutionalism and the European Arrest Warrant: In Search of the Limits of "Contrapunctual Principles"', (2007) 44 Common Market Law Review 9.
39. C-303/05, Judgment of 3 May 2007 (Advocaten).
40. The claimant also argued that the subject-matter of the Framework Decision should have been implemented by way of a convention instead.
41. The offences include, for example, 'terrorism'or 'participation in a criminal organisation', without further explanation.
42. Advocaten, supra n. 21 at para. 45.
43. Advocaten, supra n. 21 at para. 50.
44. The Court was referring to, inter alia, Coẽme and Others v Belgium 2000-VII 75 at para. 145.
45. Advocaten, supra n. 21 at para. 53.
46. Ibid. at para. 56. The ECJ referred to C-248/04,
47. Koninklijke Coöperatie Cosun [2006] ECR 1-10211 at para. 72 and the case-law cited therein.
48. Advocaten, supra n. 21 at para. 57.
49. Advocaten voor de Wereld, Opinion of AG Ruiz-Jarabo Colomer, 12 September 2006 at paras 83-99.
50. See para. 33, Presidency Conclusions, Tampere European Council, 15-16 October 1999, available at: http://www.consilium.europa.eu/ueDocs/ cmsData/docs/PressData/en/ec/00200-rl.en9.htm
51. and The Hague Programme, Annex 1 to the Presidency Conclusions of the Brussels European Council, November 2004, at 38.
52. For an overview of the development of this approach, see Peers, 'Mutual Recognition and Criminal Law in the European Union: Has the Council Got It Wrong?', (2004) 41 Common Market Law Review 5.
53. For a very comprehensive overview of the problems prompted by the application of the principle of mutual recognition to criminal matters, see Mitsilegas, 'The Constitutional Implications of Mutual Recognition in Criminal Matters in the EU, (2006) 43 Common Market Law Review 1277.
54. See also Peers, supra n. 16 at 497-98.
55. Mitsilegas, ibid. at 1290-92.
56. Ibid. at 1299-1307. On the problems of the incorporation of the principle of ne bis in idem in EU law, see Wasmeier and Thwaites, 'The Development of ne bis in idem into a Transnational Fundamental Right in EU Law: Comments on Recent Developments, (2006) 31 European Law Review 565;
57. Weyembergh, 'Le principle ne bis in idem: Pierre d'achoppement de l'espace penal Européen?', (2004) Cahiers de Droit Furopéen 337;
58. and Fletcher,'Some Developments to the Ne Bis In Idem Principle in the European Union: Criminal Proceedings Against Huseyn Gözutök and Klaus Brügge, (2003) 66 Modern Law Review 769. The Commission has recently published a Green Paper on the matter, 'On Conflicts of Jurisdiction and the Principle of Ne Bis In Idem in Criminal Proceedings', 23 December 2005, COM(2005) 696 final, SEC(2005) 1767.
59. On rights of defence, see the unsuccessful Commission 'Proposal for a Council Framework Decision on Certain Procedural Rights in Criminal Proceedings Throughout the European Union, 28 April 2004, COM(2004)328 final, SEC(2004)491.
60. Advocanten voor de Wereld, Opinion of AG Ruiz-Jarabo Colomer, supra n. 29 at para. 97.
61. Advocaten, supra n. 21 at para. 59.
62. Supra n. 17. The obligation - to interpret all national law in the light of framework decisions - was overlooked by the German Constitutional Court when dealing with the German EAW implementation law: Bundesverfassungsgericht, Decision of 18 July 2005 (2 BvR 2236/04).
63. In theory, there is no hierarchical relationship between the ECJ and national courts, but one that is based on cooperation. The ECJ depends on national courts to ensure that EC law is properly applied throughout the Union: A subtle exercise of negotiation and inter-court dialogue has traditionally taken place within this framework, especially in the field of human rights.
64. 'Solange' is the name of the saga of German cases: BVerfGE 37, 271, Internationale Handelsgesellschaft v Einfuhr und Vorratsstelle für Getreide und Futtermittel (Solange 1) [1974] 2 CMLR 540;
65. and BVerfGE 73, 339, re the application of Wünsche Handelsgesellsehaft (Solange II) [1987] 3 CMLR 225.
66. Comparable conflicts occurred in the case of other national constitutional courts: Frontini v Ministero delle Finanze (Case 183) [1974] 2 CMLR 372 at 389;
67. Corte Constituzionale, 21 Aprile 1989 n. 232 - Pres. Conso; red. Ferri - S.p.a. Fragd c. Amministrazione delle finanze dello Stato (1989) 72 Rivista di Diritto Internazionale 104.
68. Advocaten, supra n. 21 at para. 45.
69. Claes, The National Courts' Mandate in the European Constitution (Oxford: Hart, 2006) at 167-8.
70. This duty to disapply national law that conflicts with EC law exists in the first pillar but, traditionally, not in the third one. Some authors seem to believe the ECJ is in fact vowing in this judgment to review Member State action in the light of Article 6, TEU, and thus extend a form of first-pillar primacy to the third one, see Spaventa, supra n. 17;
71. Lenaerts and Corthaut 'Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law', (2006) 31 European Law Review 287 at 289-91. It should also be noted that the preliminary reference procedure under Article 35(2) TEU is not even available with the same features in all Member States.
72. T-306/01, Kadi [2005] ECR II-3533; T-315/01;
73. and Yusuf [2005] ECR II-3649.
74. Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, and repealing Regulation (EC) No 467/2001, [2002] OJ L 139/9. The list annexed to this regulation is regularly reviewed by the Commission, on the basis of updating by the Sanctions Committee: Most recently at the time of the judgment, Commission Regulation (EC) No 1378/ 2005 of 22 August 2005 amending for the 52nd time Council Regulation (EC) No 881/2002, [2002] OJ L 219/27.
75. Under Articles 60 and 301, CE. See Usher, 'Direct and Individual Concern - An Effective Remedy or a Conventional Solution?', (2003) 28 European Law Review 575 at 593;
76. and Nettesheim, 'UN Sanctions Against Individuals - A Challenge to the Architecture of European Union Governance', (2007) 44 Common Market Law Review 567 at 571.
77. With the addition of Article 308 EC as a legal basis, which permits the Community to adopt any action necessary to achieve a legitimate aim. It is still debatable, of course, whether fighting terrorism is a legitimate aim of the European Community.
78. On this distinction, see Bartelt and Zeitler '"Intelligente Sanktionen" zur Terrorismusbekämpfung in der EU' (2003) Europäische Zeitschrift für Wirtschaftsrecht 712;
79. and Cameron, 'European Union Anti-Terrorist Blacklisting', (2004) 4 Human Rights Law Review 225.
80. They also claimed, first, that there was no competence for the adoption of the regulation at stake, since there is no specific legal base in the treaties for the adoption of sanctions against individuals. Article 308 had been used as a supplementary legal base, given that it allows the Community to adopt action necessary to fulfil a legitimate aim. The applicants rejected the idea that fighting terrorism could be such an aim. Secondly, they alleged that the regulation breached Article 249 EC, the provision that describes regulations as instruments of general application. The regulation at stake prescribed individual sanctions and had therefore, according to the applicants, no generl application. The CFI rejected claims.
81. Article 27, Vienna Convention on the Law of Treaties and Article 103, UN Charter, respectively.
82. '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.'
83. Tomuschat, 'CaseT-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission; Case T-315/01, Yassin Abdullah Kadi v Council and Commissiod', (2006) 43 Common Market Law Review 537 at 542.
84. Yusuf, supra n. 43 at para. 253.
85. To this end, the CFI relied extensively on the analogy of 21/72, International Fruit Company and others/Produktschap voor Groenten en Fruit [1972] ECR 1219, the case where the ECJ had to rule on whether the Community was bound by the GATT. See Yusuf, at paras 245, 246, 250, 251 and 253.
86. Yusuf, supra n. 43 at para. 266.
87. Ibid. at para. 269.
88. Ibid. at para. 281.
89. Ibid. at paras 290-91.
90. Because of Article 17(2), Universal Declaration of Human Rights, which provides that '[n]o one shall be arbitrarily deprived of his property'.
91. Yusuf, supra n. 43 at paras 293-302.
92. Ibid. at para. 325. This applies in principle to a regulation if it is of direct and individual concern to the applicants.
93. Ibid. at paras 343-44.
94. Ibid. at para. 345.
95. T-253/O2, Chakif Ayadi [2006] ECR II-2139 at para. 144.
96. Under Article 230(4) EC, the ECJ continues to apply a very restrictive test to grant standing to individuals, and this can in turn lead to a gap in judicial protection. The ECJ dealt with this in UPA by imposing an obligation on Member States to make it easier for individuals to challenge EC legislation indirectly before national courts: C-50/OOP, UPA v Council [2002] ECR I-6677.
97. See Nettesheim, supra n. 45 at 574-5.
98. As a matter of principle, it is debatable whether a diplomatic mechanism can substitute judicial protection. It is also not clear whether it can be effective. See Nettesheim, ibid. at 575.
99. Nettesheim, ibid. at 567.
100. International Fruit, supra n. 52.
101. Dashwood, 'Commentary, in Arnull, Schlemmers and Dashwood, CELS Occasional Paper No. 1: The Human Rights Opinion of the ECJ and its Constitutional Implications (June 1996) 18 at 25-26, makes this point with regard to the ECHR.
102. On the different underlying assumptions, see Tomuschat, supra n. 51 at 543.
103. For an overview of the relationship between international and domestic law see Cassese, 'Modern Constitutions and International Law', (1985) 192 Hague Recueil des Cours 331;
104. Jacobs and Roberts (ed), The Effects of Treaties in Domestic Law (London: Sweet and Maxwell, 1987);
105. and Buergenthal, 'Self-Executing and Non Self-Executing Treaties in National and International Law, (1992) 235 Hague Recueil des Cours 303.
106. Claes, supra n. 41 at 167-8.
107. This is the duty imposed upon national courts that deal with a conflict between national and EC law, also called the Simmenthal duty.
108. It is worth remembering how the Polish constitutional court annulled the national law that implemented an EU law measure (the EAW Framework Decision) because it did not accord with its constitution. The latitude given by the Framework Decision to the national legislator did not allow for a constitutional implementation in any case; the case is therefore comparable to the present, where the EC legislator had no discretion to change the content of the UN resolution in any way. See Section 2.
109. See supra n. 71. On the contrary, the ECJ - despite its use of monist terminology - has always made sure that international law acts pass thorough controls before being allowed applicability within the EU legal system.
110. See Nettesheim, supra n. 45 at 582.
111. For a general overview of the legal effects of international law instruments within the EU legal system, see Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (Oxford: Oxford University Press, 2004) at 274-344.
112. 11/70, Internationale Handelsgesellschaft [1970] ECR-1125.
113. Tomuschat, supra n. 51 at 544.
114. Even if in disagreement, it is debatable how the CFI conducted its review of the UN resolution against the standards of jus cogens in practice. See Tomuschat, ibid. at 547-51.
115. Pending cases C-415/05, C-402/05 and C-403/06, respectively.
116. This occurrred in the case of Bosphorus Hava Yollari Turizm v Ireland (2006) 42 EHRR 1.
117. See Hinarejos, 'Bosphorus v Ireland and the Protection of Fundamental Rights in Europe', (2006) 31 European Law Review 251;
118. and Costello, 'The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe, (2006) 6 Human Rights Law Review 87.
119. T-228/02, judgment of 12 December 2006.
120. Ibid. at paras 91-111. The CFI distinguished this case from Yusuf and Kadi at paras 99-108.
121. Eckes,'CaseT-228/02, Organisation des Modjahedines du Peuple d'Iran v Council and UK (OMPI)', (2007) 44 Common Market Law Review 1117-29.
122. T-338/02, Segi [2004] II-01647 ('CFI Segi').
123. C-355/04 P, judgment of 27 February 2007 ('ECJ Segi').
124. This was a common position adopted both under the second and third pillars of the EU, on the basis of Articles 15 and 34, TEU.
125. In the intergovernmental pillars, the Courts only have the jurisdiction conferred upon them by Article 35, TEU - which does not include actions for damages. ECJ Segi, supra n. 83 at paras 45-8.
126. CFI Segi, supra n. 82 at para. 38. During the appellate proceedings, AG Mengozzi offered a different view: Protection had to reside at the level of the Member States - they should therefore be able to review EU law, free of the Foto-Frost mandate. Opinion of AG Mengozzi in Segi, delivered on 26 October 2006 at paras 121-32.
127. ECJ Segi, supra n. 83 at paras 52-6.
128. ECJ Segi, supra n. 83 at para. 56.
129. See supra n. 63.