Laval - Two Years After: Salvation in Strasbourg?
Mon, Nov 9, 2009 posted by Cartesio
The Court of Justice delivered the Case C-341/01 Laval on 18 December 2007. This ruling led to a legal big bang within the Swedish system of autonomous collective bargaining. After two years, the Swedish labour court (arbetsdomstolen) will eventually give its decision on 2 December 2009. The national jurisdiction might even send another preliminary ruling to the Court of Justice concerning the application of the Francovich doctrine to the circumstances of the case. At the same time, it is also worth noting that the Swedish legislation is under deep reform. The new propositions made by the so-called “Laval committee” seem to favour the abandonment of the Lex Britannia and the injection of increased clarity and accessibility in the national legislation on collective agreements. Yet no minimum wage system has been recommended.
The debate is still raging in the peaceful Kingdom of Sweden. Many still despise the Laval ruling. The new trend is to find salvation in the Strasbourg case law. According to the Laval opponents, the Court of Justice ruling is contrary to Demir and Bakayra (12 November 2008) and Enerji Yapi-Yol Sen (21 April 2009). In these cases, the European Court of Human Rights – deviating from a rather non-progressive approach and relying on ILO conventions and the European Social Charter – considered that the freedom of association under Article 11 ECHR embodies the right to bargain collectively (see Demir and Bakayra, paras. 147-154). Does it change something to Laval? I have difficulties to see a drastic transformation here since this new right is obviously non-absolute and also does not fit (defeat) the operative part of the Laval ruling based on the blatant lack of transparency of the Swedish legislation when it comes to justifying the restriction on the economic freedom (Laval, para. 110).
Overall, this issue raises the role of the Strasbourg jurisprudence. This is indeed particularly important due to the entry into force of the Lisbon Treaty on 1 December 2009 which includes an obligation for the Community institutions to accede to the European Convention on Human Rights. This accession – if done in hurry – might lead to an unprecedented mess. A mature reflection is in fact needed. What would be the exact scope of the Strasbourg Court’s competence? I am curious to see how the Strasbourg Court will deal with increasing litigations involving EU citizens’ rights, residence rights or provisions of the EU Charter of Fundamental Rights not explicitly enshrined within the ECHR? The European Court of Human Rights is clearly not familiar with cross-boarder human rights situations involving for instance economic fundamental rights such as it is the case in Laval. I am worried, really.
Cartesio
November 9th, 2009 at 2:32 pm
I share your worry, and I have done so for quite some time. On the other hand -let’s face it- it is also a very exciting development, and as an EU lawyer I confess that kind of hoping little will be done in preparation to the accession because I am quite looking forward to seeing how things play out in the case law as a result. I am not so sure what could be done by the way, especially before December 1. It seems that the consequences of accession have been purposefully left for the two Courts to deal with through their case law.
As for the scope of the Strassbourg Court’s competence: I am not inclined to agree with what you seem to suggest, namely that the competence of the ECtHR should me somehow limited, for example so as not to cover economic issues. Name me an issue in the context of EU law that is now somehow ‘economic’!
I think that would be a grave mistake, and I think (or hope?) you underestimate the Court’s ability to deal with those issues - at least on a substantive level. Manpower off course is a very different matter, and that is where I see the main challenge. There are no grounds to distinguish between ‘normal’ and ‘economic’ fundamental rights, nor should there (ever) be. And that is precisely the point of accession: we want the ECtHR to have the competence to rule on matters of Community law. Otherwise what is the use of EU accession to the ECHR?
November 9th, 2009 at 4:40 pm
I also think - as I have posted last week - that we are either going to see a legal mess or, which I think is more likely, a long process of negotiation between the institutions and their legal services before this accession of the EU to the ECHR will become reality.
Nevertheless, the process of the ECJ using ECHR jurisprudence is not really new, and as far as I can see there seems to be a number of regular contacts between judges of both courts which should, in general, guarantee legal coherence.
November 9th, 2009 at 6:09 pm
“Nevertheless, the process of the ECJ using ECHR jurisprudence is not really new, and as far as I can see there seems to be a number of regular contacts between judges of both courts which should, in general, guarantee legal coherence.”
Quite so. It is worth pointing out that there is also case law in which the ECtHR has followed ECJ jurisprudence. One spectacular example of this has been the judgment of the Grand Chamber of the ECtHR in Zolotukhin which came out earlier this year. In this case, the Grand Chamber abandoned its earlier approach and expressly adopted the ECJ’s interpretation of the ne bis in idem principle.
In terms of examples of judicial dialogue, this is -to me- s far the most compelling case of the year.
Coming back to your comments, I wonder what the negotiations would have to be about. EU accession to the ECHR has been discussed and contemplated now for many decades. As you have pointed out yourself both courts are working together closely and are well aware of developments in each others’ case law. Clearly, there are still differences between the Strasbourg and Luxembourg case law on many points, and in some cases those differences are worrisome. But such matters are not normally resolved through negotiations, but through jurisprudence.
I do not, quite frankly, believe accession to the ECHR would be a fundamentally different matter for the EU than it has been for any of the other members of the Council of Europe. In an EU which is active in an increasing number of policy areas with a high level of ‘human rights relevance’ the ECJ is already in a position that it must ‘take the lead’ where the protection of fundamental rights in EU law is concerned. I personally do not expect that accession to the ECHR will change this in any fundamental way. I therefore speculate (and I would like to hear your thoughts and comments on this) that many if not most of the main developments in the field of human rights protection in Europe in the years to come will come out of the case law of the ECJ, and not that of the ECtHR, regardless of any accession of the EU to the ECHR.
November 9th, 2009 at 7:21 pm
This is a very interesting post and discussion, thank you.
Cartesio, I’d be interested to hear more about why you think that it may be problematic for the ECtHR to deal with Charter rights that are not recognized in the ECHR.
Isn’t this comparable to the situation where the ECtHR is dealing with a State and has to acknowledge that there are rights or rules recognized at the national level (though not included in the ECHR) that may play a role in the equation (as part of the legitimate balancing exercise that has to be done at national level and that the ECtHR will not interfere with). Yet the fact that the ECtHR acknowledges this does not mean that it has a duty to enforce or indeed interpret the proper scope of those national rights, since they are not ECHR rights. There is a separation of functions of sorts.
Anyway, would love to hear your (or anyone’s, obviously!) thoughts.
Best
Nizz
November 10th, 2009 at 5:21 pm
Thank you for your interesting comments! I agree with VB that the primary challenge is institutional. However, the jurisprudential issue is not as simple as it seems. Can we draw a clear divisive line between the provisions of the EUCFR not explicitly mentioned in the ECHR and those explicitly mentioned? VB referred to the Zolotukhin case. It is a great example of cross-fertilization and fortunately not the only one. Recently, the CFR is also making its way within the Strasbourg jurisprudence. What will be the next step? Will the European Court of Human Rights rely on the CFR to extend the scope ratione materiae of the ECHR? Will it develop general principles of ECHR law? I think that the CFR will have an enormous impact on the Strasbourg case law in the way no national right is capable of.
Cartesio
November 12th, 2009 at 10:46 am
Hello
I would like to know if the EU accession to the ECHR will render the Bosphorus principles inapplicable. Will the EU be treated as any other Contracting parties whose laws is under the scrutiny of the Court and will the ECJ be treated as any other national supreme/constitutional court? What do you think?
Best
Peg
November 12th, 2009 at 5:04 pm
Another example of cross-fertilization where the ECJ preceded the ECtHR is the principle of lex mitior: in Scoppola vs Italy (September 2009) the ECtCHR abandoned its previous position and accepted that principle, something that the ECJ had already done in Berlusconi on the basis of the Member States’ common constitutional traditions.
To try to answer part of Peggy’s question, I think that Bosphorus is bound to die. There is no reason why, after the accession, the ECtHR should accept non-manifest breaches of the Convention. The problem is that the ECtHR may be a bit shy and may reintroduce Bosphorus through the backdoor by being very lenient with the EU. That would be a very unfortunate and completely unjustified move, but realistically it is not excluded.
November 13th, 2009 at 2:30 pm
Thanks for the reply
Indeed you confirm my idea. there is no reason why bosphorus should remain but given the “deference” usually shown to the ECJ by the ECHR, I believe that the ECHR will remain cautious in its scrutiny.
November 13th, 2009 at 3:09 pm
But if the ECtHR is cautious, i.e. using a wide margin of discretion concerning the acts of the Community institutions, it means that Bosphorus will remain alive. Towards a double standard of judicial review as in the Court of Justice?