Resolving conflicts in European fundamental rights protection: National and European courts’ perspectives
PhD student: Mrs S. Imamovic
Promotors: Mrs Prof M.L.H.K. Claes, Mrs Dr P. Foubert
Duration: 1/9/2013 - 31/8/2017
PhD defence: Maastricht, 12/12/2018
This is the era of human rights. Human rights are used today when discussing almost any political subject, at all levels of governance, international, European and national: immigration, crime, family law and healthcare, to name just a few. Europe is no exception to this global trend. And the legal systems governing in Europe have followed suit. Over the past two decades, new bills of rights have been adopted (e.g. EU Charter), old ones have been adapted European bills have been given effect in domestic legal orders (see e.g. in the Nordic countries, Ireland and the UK), while the EU has began to develop a human rights policy and now even has a human rights commissioner.
The result is the existence of a highly complex web of partly autonomous, partly interrelated systems of fundamental rights protection in Europe. This complexity is caused by the co-existence of three legal systems, each with their catalogue of fundamental rights and their own enforcement system. At the national level fundamental rights are mainly to be found in constitutions, sometimes complemented with international treaties, and, sometimes also, EU law. Secondly, at the international level, individuals can bring individual complaints before the European Court of Human Rights (ECtHR) alleging violations of their fundamental rights as protected by the European Convention of Human Rights (ECHR). Thirdly, fundamental rights are also protected in the context of EU law, where they derive from the Charter, common traditions and the ECHR. Legal action based on the infringement of EU fundamental rights may involve the Court of Justice of the European Union (CJEU) as well as national courts.
The legal relationships between these component parts of the European human rights landscape and between the actors belonging to each of these systems are contested and are still evolving. Recently, the most important catalyst for change in the context of the EU is the entry into force of the Lisbon Treaty. This Treaty gives the EU a binding Charter of Fundamental Rights and obliges the EU to accede to the ECHR
necessitating a new conception of the relationship between the CJEU and the ECtHR. At the same time, the ECHR system is struggling with an overburdened Court, challenges to the legitimacy of the Court in several states, as well as problems of non-execution of its judgments.
Political declarations of the Contracting Parties focus on a new emphasis on the role of national courts, as well as a direct relationship between national courts and the ECtHR.
The increased focus on fundamental rights in the European space poses multiple political and legal challenges for the EU as well as for its Member State courts. It is particularly problematic for national courts, since they are at the crossroads of three legal systems: as State organs, they ensure compliance of their State with the ECHR. At the same time they must uphold their national Constitution, and comply with EU law and EU fundamental rights. National courts may thus be confronted with competing and conflicting obligations for the protection of fundamental rights. After all, the catalogues may not require the same level of protection and are interpreted by different highest courts, while clear rules governing their mutual relationship are lacking.
In addition, national courts find themselves in an ever more complex institutional and procedural environment. The sheer complexity of the system may become a threat in itself, both for the authorities endowed with the task to protect them, but more importantly for the individual whose rights are protected.
My research aims to examine how national courts in five Member States are affected by the changing relationships between the European Court of Human Rights and the European Court of Justice, and how they can rise to the challenges they will have to overcome.
The methodology is that of classic legal research: relevant legal materials are used to ascertain and assess the state of the art. Since the theme of this project is so timely, the amount of national and European case law is still manageable, and it will be feasible to examine how national courts approach the co-existence of various fundamental rights catalogues and the relationship between the European courts. In addition, governments, parliaments and advisory bodies are heavily involved in designing the new fundamental rights architecture in Europe. I will analyse the reports, documents and advisory reports published by these actors.
The objective of my project is to provide stakeholders with much-needed information of how national courts can rise to the occasion and the challenges they will have to overcome. All stakeholders involved in the developments of fundamental rights protection in Europe have one underlying objective in mind: an enhanced and more coherent protection of fundamental rights. It is, however, questionable whether recent developments are achieving the desired goal. In fact, the effects seem to be the opposite. My project aims to contribute to an enhanced and more effective protection of fundamental rights that will not further complicate proceedings before national or European courts unreasonably, or make access to courts more burdensome for individuals.
In this context, Belgium is an interesting country to study. It can be seen as a front runner. Belgian courts are open to cooperation with the European courts and they thus have a prominent Europe- friendly reputation. In this respect, they are precursors, but, at the same time, they are first to encounter problems if the European standards of fundamental rights protection diverge. While courts in other countries tend to emphasize their own Constitution and downplay the role of the ECHR and of the EU Charter, Belgian courts aim to be loyal to all norm systems. This also means that they are prone to encounter problems in case the European standards of protection diverge. And such divergences will arise more and more often, with EU law expanding into more sensitive areas, with the Charter into force and litigants beginning to find their way to Luxembourg to have their fundamental rights protected. Also, such divergences will more and more often be the result merely of different ways to strike a balance between conflicting rights, or a clash of fundamental rights with other social values or general interests. Even though divergences often can be solved by applying rules of construction or conflict rules, diverging standards can be problematic in another respect. Following a decision adopted by one or both of the European courts may force the national courts to hand decisions which may carry lower social legitimacy and societal acceptance at home. This poses questions for the strategy of courts, but also in terms of systems design.
Belgium is also particularly susceptible to the problems that may arise due to the complexity of the multilevel fundamental rights protection because of what is known in Belgium as the problem of concurrence or coincidence of fundamental rights. While the introduction of a new paragraph in article 26 of the Special Law on the Constitutional Court (i.e. the priority rule) seemed to have solved the issue rather satisfactorily, the subsequent judgment of the CJEU in the Melki-Abdeli case made clear that a central review of constitutionality by the Constitutional Court is difficult to combine with a diffuse review of consistency with international and EU law.
This situation leaves Belgian national courts and the Belgian Constitutional Court in particular with a number of problems which could have negative effects on the effective protection of fundamental rights. One of the practical concerns, in the words of the President of the Belgian Constitutional Court, writing extra-judicially, is that it brings ordinary courts and the Constitutional Court in competition allowing domestic judges to escape domestic preliminary rulings procedures and to disobey constitutional judgments.
The first part of the project will thus identify problems in the fundamental rights protection in Belgium and ways to overcome these.
In order to test the validity of the proposed solutions for Belgium, I will conduct a comparative analysis of four other countries of the European Union, namely Germany, the Netherlands, the UK, and Croatia.
This selection is designed to include legal systems with different approaches to national and European fundamental rights protection, thereby maximising the usefulness of my findings for other legal systems facing similar challenges.
More specifically, the selection of Belgium, Germany, the Netherlands, the UK and Croatia rest on the following criteria: (i) strong v weak protection of national constitutional rights; (ii) presence of a constitutional court v no constitutional review; (iii) intensity of public debate on the role of the ECHR in the domestic legal system; and (iv) long-standing system of fundamental rights protection v new democracy. While other choices could have been made, my choice is based on convincing scientific grounds and so as to maximise the usefulness of my research findings for other EU countries.