Adjudicating Europe

On 7 July 2010, the official talks have started on the European Union’s accession to the European Convention of Human Rights between the Commission and the Steering Committee for Human Rights. Already on 26 May 2010, the Committee of Ministers of the Council of Europe gave an ad-hoc mandate to this Steering Committee to elaborate with the EU the necessary legal instrument for the EU’s accession to the ECHR. Some days later on 4 June, the EU Justice Ministers gave the Commission the mandate to conduct the negotiations on their behalf. For Viviane Reding (Vice-president of the European Commission), the 7th of July 2010 is “a truly historic moment. We are now putting in place the missing link in Europe’s system of fundamental rights protection, guaranteeing coherence between the approaches of the Council of Europe and the European Union”.

But what is the position of the ECJ on the issue of accession?

The Court has published a very instructive five pages long ‘discussion document’ on certain aspects of the accession.

This document emphasized very very much the specific characteristics of the Union and its legal order (see in particular paragraphs 4, 5, 6, 8, 9 and 10). The Courts seems to be particularly worried of preserving its interpretative autonomy under Article 19 TEU and ensuring the proper functioning of the preliminary ruling procedure under Article 267 TFEU.

Morceaux choisis (8, 9 and 10):

“it is […] for the Court of Justice alone, in an appropriate case, to declare an act of the Union invalid. That prerogative is an integral part of the competence of the Court of Justice, and hence of the ‘powers’ of the institutions of the Union, which, in accordance with Protocol No 8, must not be affected by accession…in order to preserve this characteristic of the Union’s system of judicial protection, the possibility must be avoided of the European Court of Human Rights being called on to decide on the conformity of an act of the Union with the Convention without the Court of Justice first having had an opportunity to give a definitive ruling on the point”.

…With respect more particularly to the preliminary ruling procedure provided for in Article 267 TFEU, it may be pointed out in this connection that its method of operation, as a result of its decentralised nature which means that the national courts have general jurisdiction in respect of European Union law, has given altogether satisfactory results for more than half a century, even though the Union now consists of 27 Member States. However, it is not certain that a reference for a preliminary ruling will be made to the Court of Justice in every case in which the conformity of European Union action with fundamental rights could be challenged. While national courts may, and some of them must, make a reference to the Court of Justice for a preliminary ruling, for it to rule on the interpretation and, if need be, the validity of acts of the Union, it is not possible for the parties to set this procedure in motion. Moreover, it would be difficult to regard this procedure as a remedy which must be made use of as a necessary preliminary to bringing a case before the European Court of Human Rights in accordance with the rule of exhaustion of domestic remedies”.

Not so easy the accession after all, right?

The EU Law Blog has an interesting post on the Committee recently established by Article 255 of the Treaty on the Functioning of the EU. This Committee is in charge of scrutinizing the candidates proposed by Member States to fill the position of Judge or Advocate General at the EU Court of Justice (+ General Court). It was a mystery in the making and for some time many thought that it would simply act as a puppet-committee, probably terrified of vetoing proposals coming from the all-mighty Member States.

Well guess what: it appears that the Committee has not only shown its teeth. It has, in fact, taken a big bite at some of the candidates.

At the EU Law Blog they point out at the mysterious disappearance of Mr. Christos Vassilopoulos from previous proposals to hold the post of Greek Judge at the General Court, obviously (and it must thus be interpreted) as the result of the Committee’s negative opinion on the suitability of the candidate. The same applies to the Romanian candidate to hold a post at the same court. Some journals have already confirmed this point, although no official statement has been issued by the Council as yet.

So we must assume (at least from the press and from gathering bits and pieces from official documents here and there) that the Committee has said “no-go” to two candidates proposed by Member States. At the same time, it has given a green light to others, like Alexandra Prechal and Mark van der Woude.

Is this all positive?

I would say at first sight that… yes indeed! If the Committee is willing to do its job, then we should all celebrate the news. Nothing is more in the interest of the EU and EU Law than having competent and respected judges sitting at the Union’s highest courts. And it is common ground that in the last years this was not always the case.

However, does anybody know on what grounds has this Committee handed its decision? It appears that all its documents are confidential and are only in the hands of the Member States. Governments will therefore know what the criteria are, but us lawyers are completely in the dark. Therefore we must assume, but only assume, that the Committee is using high standards of excellence when deciding upon candidates.

But what if that is not the case? What if the Committee, a quasi-unanimous body made up of national judges from high jurisdictions, is deciding on criteria that push Member States to appoint… national judges! Corporatism is an old friend of national judiciaries, and why shouldn’t it be present in this Committee too?

Lawyers, judges, academics or civil servants need to know on what grounds the judges that will sit in the highest EU courts are being chosen. Output legitimacy might not be good enough; transparency is sometimes a value in itself, particularly when those who are being chosen with no transparency whatsoever are called to interpret and decide what exactly the term means.

- Pescatorius

The ECJ has handed its judgment in the Melki case today, although only in French for the time being. The judgment can be accessed here.

In general terms, the ECJ rules out the Cour de Cassation’s interpretation of the “priority question of constitutionality” and gives a clear hint that the referring court was getting it wrong. Although the ECJ is very careful to grant the referring court the last say as to the “correct” interpretation of French law, it is obvious that the ECJ was fully aware of what was going on.

The “correct” interpretation of the French procedure before the Conseil Constitutionnel, however, appears to be compatible with EU Law. This is, of course, the important aspect of the case, and it should come as a true relief for France’s agents, who must have been at true odds to prove that the actual system was quite respectful with the ECJ’s case-law. Finally the ECJ has been sensitive to the fact that the French judge is free to pose the reference to the ECJ at any time, even at the same time that the priority question is raised before the Conseil. The fact that the French judge can make use of interim measures and set provisionally aside the contested national law in the course of the proceedings has also had weight in the ECJ’s reasoning.

However, there is a poisoned section in the judgment.

Paragraphs 54 to 56 pose an interesting point, and not exactly in favour of the French system. The ECJ says quite openly that when the query before a national judge concerns the compatibility with the Constitution and the Treaties of a national Law that transposes imperative provisions of a Directive, the Foto-Frost monopoly in favour of the ECJ might be at stake. Therefore, in those circumstances, it is up to the ECJ to first and foremost state what the answer to the (EU) validity issue is. This is, as some of you might remember, the situation surrounding the Arcelor case, coming, not coincidentally, from the French Conseil d’Etat.

One last dose of poison. At the very end of paragraph 56 the ECJ adds that, in a circumstance as the one just raised, “l’encadrement dans un délai strict de la durée d’examen par les juridictions nationales ne saurait faire échec au renvoi préjudicial relatif à la validité de la directive en cause”.

Clear and sound: the fact that the Conseil has a brief three-month time-period to solve the case is NOT an excuse for refusing to make a reference.

Not such a “sympathique” judgment after all.

-Pescatorius

This question might raise eyebrows, I know. You might react in disbelief. ECJ, pluralist? It makes little sense. After all, pluralism itself is only a passing fad, and the ECJ – the ultimate guardian of the supranational fortress – has been anything but pluralist in its latest judicial pre-emptive strikes against the national side of the European judicial equation. Just recall the Kuku, or as I have baptized it, a Mangold II case.

Yet, it might be happening. The very recent opinion by AG Cruz Villalon in the Elchinov case (C-173/09) could be a harbinger of a more dialogic, co-operative, respective European judicial future. Pluralism in the making.

Anyway, what is it all about? The AG dealt with a reference submitted by the Administrative Court in Sofia asking whether EU law precludes a lower court from complying with a judgment of its supreme court where a case is referred back to it and it has serious doubts as to whether the judgment is compatible with European Union law.

It is common knowledge that these sorts of questions belong to the so-called Rheinmühlen line of cases, recently spiced up by the notorious Cartesio ruling, whereby the Court has, admittedly in a murky and not very intelligible language, tended to tip the scale in favor of EU law, railroading the national procedural autonomy. More succinctly, the existing rule has been that in principle the requirements of correct, uniform and efficient application of EU law served through the preliminary ruling procedures are to be given primacy over the national procedural autonomy.

Right, the AG now believes this jurisprudence should be reconsidered.  For times have changed:

“In contrast to the situation in the 1970s, it is possible to assert today that European Union law has reached a level of maturity which allows it to ensure its own practical effectiveness before the courts of the Member States with a lesser degree of involvement in the autonomy of national courts than that which indubitably results from Rheinmühlen I. That is why the time for reconsidering that case-law appears to have arrived (par. 30).”

By now efficient mechanisms have been developed to ensure the rights of the affected party and to serve the interests of EU law: liability for damages caused (by a manifest breach of the law, including by the courts of the last instance), with a possibility of another reference for a preliminary ruling; and an action for failure to fulfill obligations (on behalf of the Member State due to the non-performance of its courts).

In other words, the ECJ can be confident enough that national courts of last instance will play along; both because of the legal mechanisms developed and due to a growing willingness of the national courts to participate in the construction of European legal order, too. Provided of course their special place in the national legal order is recognized and equal status in EU law assured.

I believe the AG’s opinion strikes the right cord. It maximizes the interests of all the parties involved. National courts of last instance are recognized their proper place in the European judicial architecture and the ECJ is sending signals that it wants them as equal partners. In so doing, the ECJ is also getting rid of perhaps somehow less important references from lower national courts, thus shrinking its docket and decreasing the heavy workload. All this with no or only little risk for the viability of EU law.

Let’s remain hopeful that the Court will hear the AG’s call.

It is common knowledge that the national courts are key actors when it comes to application and enforcement of EU law. The same holds true in the Strasbourg system which is founded on the principle of subsidiarity - an overarching principle recently reaffirmed during the Interlaken Conference in February 2010. To put it differently, it is primarily for the national authorities and the national courts to apply the European Convention on Human Rights.

The accession to ECHR will grant power to the European Court of Human Rights to directly review the compatibility of Union acts with the ECHR. This sytem of external control might conflict with the principle of autonomy of EU law and the established ECJ case law. In the seminal Case 314/85 Foto-frost case, the Court of Justice has established an exclusive competence for the Court of Justice to assess the validity of Union legislation. Therefore, the national courts (all of them) are under an obligation to make a preliminary reference to the ECJ in case of doubts as to the validity of secondary legislation. Yet the accession to ECHR could undermine the autonomy of EU law and the Foto-frost judgment since a national court requested to raise the question may adopt a final decision without having requested a preliminary ruling, meaning that no further intervention of the ECJ is needed and that the ECtHR can review the compatibility of EU legislation. This is highly problematic!

Two main options are possible. The first option – which establishes a specific system of control – was promoted inter alia by Judge Timmermans at the hearing of the AFCO Commission of the European Parliament on 18 March 2010. In this system, the Commission should be granted the possibility to request the ECJ to rule on the compatibility of an EU act with the fundamental rights once a claim is lodged by an individual before the ECtHR. This option though apparently quite effective may unfortunately lead to important delays for the citizens who brought a case before the ECtHR.

The second option does not require the launch of a specific mechanism and is based on the current system of exhaustion of domestic remedies (Article 35 ECHR). The applicant must have exhausted the judicial remedies of the State concerned including a reference for a preliminary ruling to the Court of Justice. As put by the Resolution of the European Parliament on 19 may 2010, “the latter procedure shall be regarded as having been complied with where following a request to that end by the applicant the national court does not consider it appropriate for a reference for a preliminary ruling to be made”. It is true that this system highlights once again the role of the national courts in the protection of rights in Europe. But is it realistic to view the fulfillment of this procedure as a necessary condition (a kind of new admissibility criterion in fact) for lodging an individual request before the ECtHR?

Cartesio

It appears that the Council’s mandate to the Commission concerning the EU’s accession to the European Convention of Human Rights will very soon be agreed. Many interesting issues lie ahead, and they are all of the utmost importance for EU Law and for all lawyers interested in fundamental rights.

The way in which the Union will accede to the Convention is a mystery. Will the ECJ be subject to the ECHR’s jurisdiction? How is the Union to defend itself when EU cases reach Strasbourg as a result of a national procedures? Will Foto-Frost have to be reconsidered? Will there be a “Union judge” in Strasbourg? Will there be an Opinion from the ECJ on the compatibility of the final agreement with the Treaties, and will the Court be able to meet expectations? And what on earth will happen to the Bosphorous case-law, as Cartesio this week rightly pointed out in his post?

The mandate will give many answers.

So we all shall wait a few more days, and then we can start the debate. In the meantime, let’s sit back and start warming up the engines.

EMC Development AB v Commission: Standardisation under EU Competition Law

On 12 May 2010, the General Court (GC) delivered its judgment in Case T-432/05 EMC Development AB v. Commission. This judgment relates to a review of the legality of the Commission’s decision not to act on a competition complaint against allegedly anti-competitive effects of standardisation in the European cement industry. It can provide interesting guidance on the application of EU competition law to standardisation.

The European Committee for Standardisation (CEN), whose members are the national standard setting bodies of European countries, is a Standardisation Body recognised under Directive 98/34/EC. In 2000, CEN members adopted the European cement standard EN 197-1 (Standard) which was developed by a CEN technical committee, in close cooperation with the European Cement Association (Cembureau), under a mandate granted by the Commission pursuant to Directive 89/106/EC on the approximation of Member States’ legislation on construction products. The Standard defines each of 27 common cement products on the “traditional and well tried” basis and further groups them into five cement types. The complaint’s cement which is energetically modified cement produced under a new technology developed in Sweden in 1990s is not in the Standard (paras 12-16). Therefore, the complaint contended that CEN and Cembureau, particularly European Portland cement producers who were behind these two bodies, through adopting the Standard acted as a cartel and created barriers to entry into the European cement market (para 28). The GC agreed with the Commission’s two-pronged test to scrutinize standard setting under Art. 101 TFEU (Art. 81 EC): “(i) whether the procedure for adoption of the Standard had not been non-discriminatory, open and transparent, and (ii) whether the Standard was binding” (para 65). For assessing the procedure, the Court confirmed that the Commission had not made a manifest error of assessment relating to three criteria, namely non-discrimination, openness and transparency (paras 79-104). For the binding nature, the GC decided that the Standard was neither legally mandatory nor de facto binding (paras 113-129). Interestingly, it said that even if national regulations excluded new products by using specifications included in the Standard, “the Standard is not binding on account of its adoption by CEN. The fact that Member States do not apply the [free movement rules] could fall within the scope of [such rules] but that does not mean that the Standard falls within the scope” of Art. 101(1) TFEU (para. 122).

It seems thus impossible for EMC Development to have the judgment reversed under competition law if it brings the case to the ECJ. Although it was not discussed by the GC, it should be noted that the CEN’s standard setting was made under the Commission’s mandate with the support of the harmonisation rules. Such activities possibly are not economic activities under EU competition law; they constitute public powers as the ECJ said in Case C-113/07 P Selex. Put it differently, “public power entrusted” standard setting organisations are hardly subject to competition law. However, EMC Development may find another way under EU law to reach the same end. It can challenge the Commission’s mandate granted to CEN by claiming that the mandate, as its effect, has restricted competition and/or free movement in the EU cement market. The facts that (i) DG Enterprise “was considering amending [the mandate] in order to add a ‘sub-family’ to the common cements and to allow new technical specifications to be developed [but] it was abandoning that proposal, since the majority of the Member States were opposed to the amendment” (para 25) and (ii) “the present action relates to a review of the legality of the contested decision and not of the Standard” (para 136) may support EMC Development in such a claim.

In any case, a general test for the scrutiny of standardisation is recognised. It absolutely gives the Commission inspiration in improving the standardisation section in its draft horizontal cooperation Guidelines, which are in the period of ongoing public consultation. The Commission should take this opportunity to “adopt a policy as to how it will exercise its discretion in the form of measures such as guidelines, in so far as those measures contain rules indicating the approach which the institution is to take and do not depart from the rules of the Treaty” (para 62). Therefore, the standardisation saga is still ahead.

Tu Thanh Nguyen is Lecturer at Ho Chi Minh City School of Law and has recently published a book entitled “Competition Law, Technology Transfer and the TRIPS Agreement: Implications for Developing Countries” (Edward Elgar Publishing, May 2010).

The accession to ECHR may put an end to the logic of ‘presumption of equivalence’ and ‘manifest deficiency’ coined by the Bosphorus case (Decision of 13 September 2001 Application No 45036/98 Bosphorus Hava Yollari Turizm AS v. Ireland). The abandonment of this doctrine in the wake of accession is not, however, such a clear cut issue as many authors have claimed. Before discussing this question, it is worth having a retrospective look at this contested decision. For the ECtHR, State action is justified as long as the EU is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the ECHR provides.  If such equivalent protection is considered to be provided by the EU, the presumption will be that a State has not departed from the requirements of the ECHR when it does no more than implement legal obligations flowing from its membership of the organisation. However, any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient (see paras. 155-156).

The literature has been critical when it comes to the hands-off approach adopted by the ECtHR in Bosphorus concerning judicial scrutiny and clearly advocates for the rejection of the Bosphorus doctrine in the wake to the EU accession to the ECHR. Many of the criticisms echoed the doubts of the minority judges in Bosphorus. Four main objections to the presumption of equivalence can be distinguished. These objections are based on the so-called arguments of equality, proportionality, comity and uncertainty. The equality and proportionality objections were already reflected very strongly in the concurring opinions. The equality objection displays the danger of double standards which may be the consequence of the application of the presumption of innocence by the ECtHR. The proportionality objection mirrors the general and abstract manner in which the majority found equivalence and stigmatizes the lack of a substantive test of proportionality regarding the breach of the right to property as defined in Article 1 of Protocol 1 of the ECHR.

The third type of objection is based on comity. This argument is founded on the disappearance of comity between the ECJ and the ECtHR after the accession. It is true that the present relationship between the two European courts is often described as based on the principles of cooperation and respect. But the accession will give the last word to the EctHR regarding the interpretation of the ECHR rights in every situations of relationship. As to the uncertainty objection, it is argued here that the Bosphorus case is ambiguous as to the State actions that are exempted from full judicial review. Indeed, for the ECtHR, it seems that if equivalent protection is considered to be provided by the EU, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the EU. What is the exact scope of application of the presumption of equivalence?

In light of these four objections, one should wonder whether the Bosphorus doctrine of presumption of equivalence should be dropped after accession. A positive answer is far from being certain due to one single element: specificity. In fact, most of the reasoning in Bosphorus is based on the specific nature of EU law, both with regard to the limited discretion to which the Member States have when applying and enforcing EU legislation and in establishing and justifying the presumption of compatibility with ECHR standards. The principle of equivalence – based on the rationale of transfer of powers/sovereignty – that lies at the heart of the doctrine of presumption will not disappear and will remain unaffected after the accession. This principle has further been reinforced by the existence of a binding Charter of Fundamental Rights since December 2009 and is now codified in its Article 52(3). Apparently, the presumption of equivalence reflects the specificity of the EU legal order as defined in Protocol 8 of the Lisbon Treaty.

Alors…Bosphorus forever?

Cartesio