Select Committee on European Union Sixth Report


PART 5: REVIEW OF ECJ JURISDICTION AND OF REMEDIES

INTRODUCTION

139.  As mentioned above the general assumption of witnesses supporting incorporation of the Charter was that Charter rights would thus become legally enforceable. The citizen would have a remedy if his rights were infringed. While the increased visibility of the Charter rights seems to be the only objective of the Government, the majority of witnesses expect more. As Professor Gaja commented forcibly, "The solemn proclamation in December 2000 of a set of fundamental rights and now the incorporation of the Charter make little sense if no adequate remedy is offered to aggrieved individuals in case of breach. It is regrettable that a more practical approach has not yet been taken, as if the difficult question of providing adequate judicial remedies for the protection of fundamental rights were only a secondary matter" (p 69).

140.  The final section of the Report of the Working Group addressed the question of access to the European Court of Justice. The Group rejected the notion of a special procedure for dealing with fundamental rights issues. The Group drew the attention of the Convention to the need to consider possible reform of the conditions under which individuals may bring cases before the Court (Article 230(4) TEC) together with reform of other issues, such as the present limits to the Court's jurisdiction in Third Pillar matters. The Group commended the topic for further examination by the Convention "in an appropriate context". Mr Duff said: "There has been a big reflection on the matter but the question of improving citizen's individual access of course has got much broader ramifications than simply the Charter so they have postponed, as it were, a decision on this for the plenary of the Convention" (Q 135).

141.  Most witnesses agreed that the incorporation of the Charter, with or without accession to the ECHR, rendered it necessary to reform the system of remedies available under Community law. The Government, on the other hand, did not see incorporation of the Charter as necessarily giving rise to the need to improve remedies. Since, in the Government's view, there would be no intention to create any new rights, there would be no need for any new remedies (Q 254).

142.  Accession to the ECHR, however, would lead to new remedies. Subject to the exhaustion of remedies rule,[58] the individual would be able to make an application to the Strasbourg Court complaining of a breach of the ECHR by the EU, acting by one or other of its institutions or bodies. And where an individual complained of a breach of the ECHR by a Member State implementing EU law, accession would, as mentioned above, enable the EU institutions to play a full role in the proceedings before the Strasbourg Court and, if so advised, to defend their actions directly. If incorporation of the Charter is to confer any real benefit on individuals, the rights that will have been created will need effective remedies in order to give those rights substance and make them meaningful. The issues are twofold: the jurisdiction of the ECJ; and, second, remedies that are practical and effective.

(I) THE JURISDICTION OF THE COURT OF JUSTICE

143.  As Statewatch pointed out, a change in the legal status of the Charter would not per se remove the current limitations on the jurisdiction of the Court of Justice (p 98). Nor would accession to the ECHR do so (p 99). Professor Simitis said: "The solution of conflicts resulting out of the application of the Charter can neither be left to the ECHR nor to the courts of the Member States. It must as in the case of Article 220 of the EC Treaty be exclusively reserved to the European Court of Justice. Only then a both consistent and binding interpretation of the Charter guided by the knowledge of the European Union's goals and tasks can be secured" (p 79). Other witnesses emphasised the need for the Court of Justice to have jurisdiction to apply an incorporated Charter. Advocate General Jacobs said: "it would make little sense to have a Charter of fundamental rights which had legal effect, if there were not supporting remedies available for individuals who claimed that their rights had been violated" (Q 174). As he and other witnesses made clear, some substantial changes would be needed if the Charter were to be given legal force or the EU were to accede to the ECHR.

144.  There are two major areas where any substantive, not merely cosmetic, incorporation of the Charter into the Treaties would impinge upon the current limitations of the jurisdiction of the Community Courts. Were the Charter to become legally binding on the institutions and bodies of the Union across the whole area of EU law, the ECJ's jurisdiction would have to be extended in relation to those areas where it is at present restricted, ie Title IV TEC (Justice and Home Affairs) and Title VI TEU (Third Pillar), or where it is excluded (Second Pillar). The starting point, recommended by Advocate General Jacobs, is that no matter should be automatically a priori excluded from judicial review (Q 180). That proposal, we believe, would present a major political challenge to the governments of Member States.

COMMON FOREIGN AND SECURITY POLICY

145.  The proposal that the Court should have jurisdiction over foreign policy seems, at first sight, a radical one. But as Advocate General Jacobs reminded us, there is no exclusion for matters of foreign policy from the jurisdiction of the Strasbourg Court. He added: "where there is judicial review in Strasbourg there is perhaps a stronger argument for having internal judicial review, partly because of the obligation under the Convention to provide for review and partly because where there has been a domestic decision it may be easier for the Strasbourg Court itself to reach the right result" (Q 184). Advocate General Jacobs did not expect there would be many CFSP measures that would give rise to difficulties: many would not be legally binding measures; some, such as those implementing UN Security Council agreed sanctions, were implemented under the First Pillar (eg Article 301 TEC) (Q 180). Nor did he expect the Union to be subject to intensive scrutiny in that area: "The [Strasbourg] Court would obviously allow a certain margin in areas where there were elements of policy involved, as it does already in its exercise of judicial review" (Q 181).

146.  No matter within the scope of the Charter and within EU competences should be outwith the jurisdiction of the ECJ. If, as we have recommended above, the Union becomes party to the ECHR, the Strasbourg Court would be entitled to review the legality of Union action against the standard of the ECHR. There would be no exception for foreign policy as such. But although Member States have accepted ECJ jurisdiction over international trade and commercial matters, we very much doubt whether governments will be attracted by the idea of extending the ECJ's jurisdiction to matters of foreign policy. But in principle the actions of the EU and/or the Member States in giving effect to CFSP should be subject to judicial review/supervision in both the ECJ and the Strasbourg Court.

JUSTICE AND HOME AFFAIRS/THIRD PILLAR

147.  A number of witnesses proposed the alignment of the ECJ's jurisdiction relating to justice and home affairs with its regular jurisdiction. As Statewatch explained, this would entail permitting:

·  all national courts (instead of final courts only) to send to the ECJ questions relating to immigration and asylum law;

·  all national courts in all Member States to send to the ECJ questions on policing and criminal law (at present the UK, Ireland and Denmark have an opt-out and Spain permits only final courts to refer);

·  individuals and the European Parliament to bring direct challenges before the ECJ;

·  the Commission to sue Member States for faulty or inadequate implementation of Third Pillar 'decisions', 'framework decisions' and 'common positions', and abolishing certain 'public order' restrictions on the ECJ's jurisdiction in these areas.

In Statewatch's view all of these changes would be desirable (pp 106-107).

148.  In our opinion, the ECJ should have jurisdiction (and the full range of remedies should be available) in relation to Title IV of Part III of the EC Treaty (visas, asylum, immigration and other policies related to free movement of persons) and to Title VI of the TEU (police and judicial co-operation in criminal matters). As recent developments, such as the European Arrest Warrant, show, such matters may impinge directly on the interests and rights of the individual. The ECJ should be entitled to measure the legality of Union action, including that of Member States and their authorities when implementing it, against the norms contained in the Charter and the ECHR.

THE BODIES

149.  As Article 51 of the Charter indicates, the Charter is addressed to bodies as well as to institutions. A number of witnesses pointed out the potential significance for the individual. There is a number of bodies exercising powers which may give rise to fundamental rights issues. Statewatch said that "the accession treaty could usefully clarify that the obligations of the 'European Union' (along with, where relevant, its Member States) extend to the acts of all institutions and bodies created by the Treaties or by EU legislation or other EU measures, in particular Europol and Eurojust. This will ensure that it is possible to hold such entities to account in the event of human rights concerns about their behaviour. As creations of the EU legal system, the actions of these entities should engage the responsibility of the EU even where the bodies in question are entirely independent of control of the EU institutions or the Member States. This is a fortiori necessary if the EU creates a European Prosecutor" (p 105).

150.  The Union's business is no longer solely economic, as recent and current activities in relation to such matters as fraud, organised crime, drugs, terrorism, human trafficking, immigration and border controls clearly demonstrate. There is a good case for ensuring that remedies extend to the whole field of Union activities, whereas at present they are largely confined to actions within the First Pillar and the major institutions and bodies. Human rights challenges to any measures taken by an institution or body of the Union or by a creation of the Union or its Member States acting as such (eg Europol), should be capable of being made in the Community courts or national courts as the case may be.

(II) REMEDIES FOR/ENFORCEMENT BY THE INDIVIDUAL AGGRIEVED—THE STANDING RULE

151.  Article 230 TEC requires a private applicant to satisfy a number of criteria before he can challenge, in the Community courts, an act other than one addressed to him (the standing rule). One such criterion is that of "individual concern".[59] This qualification has been interpreted strictly by the Community courts. In UPA[60] Advocate General Jacobs proposed a possible new test of "substantial adverse effect". Another possibility would be to seek to align the Community rule with the Strasbourg rule and allow a challenge to be made by any victim, whether direct or indirect. Professor Arnull did not find that solution attractive. In his view, the existing rules on standing were too strict, even in non-fundamental rights cases, and might involve an infringement of the Charter and the ECHR. He suggested, further, that it was not desirable to have a separate mechanism for fundamental rights cases. Almost every case would have the potential of being dressed up as involving a fundamental rights issue. Many actions for annulment brought before the Community courts raise fundamental rights issues as well as other issues of Community law. He concluded that it did not make sense to try to separate off fundamental rights cases from the others (QQ 62, 68).

152.  There is a concern that if the standing rule were to be relaxed the large number of applications made would further overburden the already stretched Community Courts. The Government has acknowledged that remedies are important but has expressed the view that that importance does not justify a direct recourse to the ECJ being given to everyone who thought that any of his Charter rights had been breached (Q 261). Baroness Scotland thought that national courts would have an important role to play and that the provision of adequate remedies at national level for breaches of the Charter might suffice (Q 262). She thought that giving broader rights to access at a national level might be a possible solution to providing adequate Charter remedies (Q 264).

153.  Advocate General Jacobs rejected the "floodgates" argument. He pointed out that it was not proposed to allow challenges to be made by the world at large. The alleged Charter breach would have to be shown to have a direct effect on the rights of the individual. Second, the present time limit of two months for commencing proceedings would remain. Third, there were already powers to deal with vexatious or hopeless, ie "manifestly ill-founded", cases. Further, multiple claims could be consolidated into one action. The Advocate General expected that the number of cases in which the Court would have to examine the complaint in detail would be limited. But if there were a large number of claims in which allegations were made that the rights of the individual were being violated by Union action, then arrangements should be made for the Court of First Instance (CFI) to deal with them. If necessary the resources of the CFI could be increased. This might take the form of an increase in the number of staff (not necessarily the number of judges) (Q 179, 186).

154.  The present debate highlights the difficulties which Article 230 can present to the individual. In some cases his national court may be able to provide a remedy. But the case law of the ECJ demonstrates the difficulties of a decentralised system under which national courts have no power to invalidate Community rules.[61] If the standing rule is not relaxed so as to widen access to the Community Courts in the area of human rights there are likely to be some violations of the ECHR for which no effective remedy is available other than such remedy as the Strasbourg Court is able to provide. The narrower the gateway to Luxembourg the more important it is to have access to Strasbourg. That this is so strengthens the arguments for accession.

155.  But the problem is not restricted to human rights cases. Widening individual access to the Community Courts would help ensure the application of Articles 6 and 13 of the ECHR as well as Article 47 (Right to an effective remedy and to a fair trial) of the Charter. It is not necessarily therefore a question of creating new rights but rather of giving new remedies against the EU institutions if they breach existing rights. The EU/Community system needs to be able to protect the individual citizen against the abuse of power by EU institutions. There must be an effective remedy either in Luxembourg or Strasbourg, or in both.

156.  The issue of standing is of general importance and is not restricted to human rights cases. The time is right to re-examine Article 230(4) with a view to enabling individuals, at least in some circumstances, to challenge measures which are not directed specifically at them. The Convention is due to report in June and the initial stages of the Inter-Governmental Conference are expected to commence soon afterwards. The issue therefore is becoming most urgent. We urge the Government to press the Convention to examine the issue of remedies without delay, working in close conjunction with the Community Courts in doing so. It seems to us essential that the creation of a Bill of Rights for the Union, whether by incorporation of the Charter or by accession of the Union to the ECHR, or both, should go hand-in-hand with the development of effective judicial remedies available to individuals in the event of any breach by the EU or any of its institutions.


58   Described at para 131 above. Back

59   Article 230, paragraph four, provides: "Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to the person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former". Emphasis added. Back

60   Case C-50/00P (21 March 2001). Back

61   Case 314/85, Foto-Frost, [1987] ECR 4199. Back


 
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