This is not as arcane a question as it appears, since in the UK many cases engage points of EU law, so Convention rights, which are part of the “general principles” of Community law, get in under the wire via the European Communities Act 1972. And in July the Council of Europe published the draft agreement for accession of the European Union as a signatory to the European Convention, which either adds another string to the ECHR bow, or a further layer of constitutional obscurity of interest only to international jurists, or both: – time will tell.
The Convention’s “double life”, as one blogger calls it, was rendered even more ambiguous by the 2007 recognition of the EU Charter of Fundamental Rights and Freedoms, which incorporates most of the Convention rights and a range of other social and economic interests articulated as “principles” (see my earlier post on the applicability of the Charter and the effect of the amended Article 6(1) TEU.) As Dorothy Leczykiewicz says, the amended provision is very ambiguous:
On the one hand the Charter does not form part of the Treaties, but on the other it is attributed the same legal value as the Treaties. …[theoretically] all rights to which the Charter gives rise to, if in accordance with EU law they are meant to be given legal effect, ‘shall be recognised and available in law, and be enforced, allowed and followed accordingly’ in the UK (s. 2(1) of the 1972 Act).
Rights as “general principles”
Even if the Charter itself has no Treaty status, Article 6(3) TEU preserves ECHR rights as “general principles” which apply in full force as EU law. They can operate horizontally in cases where no public authority is involved (and therefore no Human Rights Act); or these general principles can provide a brake on EU freedoms themselves, if a particular manifestation of that freedom potentially conflicts with a Convention right:
the protection of fundamental rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty, such as the free movement of goods (see Case C-112/00 Schmidberger ECR I-5659, paragraph 74) or freedom to provide services (see Case C-36/02 Omega  ECR I-9609, paragraph 35). (International Transport Workers’ Federation v Viking Line ABP).
These restrictions must of course fulfil the requirements of any other restrictions on the EU fundamental freedoms (free movement of goods, people, services and establishment); they will be accepted only if they pursue a legitimate aim compatible with the Treaty and are justified by overriding reasons of public interest. Such restrictions are usually upheld in cases involving freedom of assembly – environmental protest and the right to take collective action, although the Zagorki death row case is an interesting illustration of the potential for other rights to be invoked (see my post on the case).
Inconsistencies in Interpretation
Putting aside the debate over the effectiveness or otherwise of the UK and Poland “opt-out” Protocol, the difficulties created by this double existence of the ECHR are compounded by the lack of clarity over the interpretation of its provisions, where EU law is engaged. Aidan O’Neill QC has posted recently on the potential for confusion between the adjudication of ECHR rights by Strasbourg and their role in cases determined by the Court of Justice of the European Union (CJEU), particularly where the interpretations by the two courts have diverged on important points. Indeed the draft accession agreement acknowledges that the main rationale for accession is increasing coherence in European human rights protection and offering individuals the possibility to access the Court in Strasbourg which can externally control the “acts, measures or omissions of the European Union.”
The agreement does install a mechanism for the EU to be involved in cases as a co-respondent party, rather than as a mere third party intervener, in cases where an alleged violation calls into question the compatibility of a provision of EU law with the Convention rights at issue. This would occur where a violation could have been avoided only by disregarding an obligation under European Union law. But this mechanism does nothing to address the Strasbourg/CJEU hierarchy problems since the draft agreement provides that where an EU incompatibility point arises involving Convention rights, an accelarated procedure would be put in place for the CJEU to rule on that point before the Strasbourg Court is seized of the matter.
Ultimately the blame for this confusion must be laid at the door of the EU, not the Council of Europe. The former bases its power on economic union, the latter on the promotion of fundamental rights. But since social amelioration has become part of the EU’s treaty aims (“the Community has … not only an economic but also a social purpose”) it cannot complain when these rights are invoked to impede the flow of goods, services, people and capital. The uneven interpretation of these rights by the CJEU’s reflects this dilemma, and the tension will no doubt increase when the greater scope for enforcement of the ECHR via EU law leads to ever wider reliance by litigants on EU points to vindicate their Convention rights. After all, EU arguments lead to potentially more effective remedies than the Convention, particularly where primary legislation is under attack.
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