EJTN-AEAJ Training on Conflicts of Norms

University of Naples Parthenope, Naples, Italy, 10-11 March 2016Dr. Danutė JOČIENĖ

Justice of the Constitutional Court of the Republic of Lithuania

Conflicts between norms:

• 3 aspects:

• I. Conflicts between EU Fundamental Rights and Freedoms;

• II. Conflicts between EU and ECHR law; and

• III. Conflicts between UN acts and the ECHR.

I. Fundamental Rights and Freedoms in the EU law:

• Nold case (4/73 [1974] ECR 491, §13):

• When protecting fundamental rights, "theCourt is bound to draw inspiration fromconstitutional traditions common to theMember States, and it cannot thereforeuphold measures which are incompatiblewith fundamental rights recognised andprotected by the Constitutions of thoseStates."

I. EU Fundamental Rights and Freedoms:

• According to well-established case-law of theCourt of Justice, fundamental rights form anintegral part of the general principles of EU law;

• On 7 December 2000 the separate document – theCharter of Fundamental Rights of the European Union -was adopted;

• Following the adoption of the Treaty of Lisbonin late 2009, the Charter of Fundamental Rigthsof the European Union (EU) is now legallybinding.

Treaty on European Union (TEU):

• Article 2 of the Treaty on European Union (TEU):

• „The Union is based on the values of respect for humandignity, freedom, democracy, equality, the rule of law andrespect for human rights, including the rights of personsbelonging to minorities“.

• Article 6 TEU:

• The Union recognises the rights, freedoms and principles setout in the Charter of Fundamental Rights of the EuropeanUnion […], which shall have the same legal value as theTreaties.

• The Union shall accede to the European Convention for theProtection of Human Rights and Fundamental Freedoms.

The Charter of Fundamental Rights of the EU:

• Article 52 - Scope and interpretation of rights andprinciples of the Charter

• 1. Any limitation on the exercise of the rights andfreedoms recognised by this Charter

• must be provided for by law and• respect the essence of those rights and freedoms.• Subject to• the principle of proportionality,• limitations may be made only if they• are necessary and• genuinely meet objectives of general interest

recognised by the Union or the need to protect therights and freedoms of others.

Art. 52 of the EU Charter of FundamentalRights/limits/scope for interpretation or conflictbetween fundamental rights and freedoms

• Article 52 defines the strict conditions under which

the rights of the Charter can be limited;

• it explains the relation of the Charter to the ECHR

aiming at the highest level of fundamental rights

protection possible;

• It is important to distinguish whether a certain article

contains concrete rights, or rather, principles;

• Guidance on the nature of the different Charter

articles can be found in the Explanatory

memorandum to the Charter.

Rights/or principles:

• The Explanatory memorandum explicitly lists Article 25

(the rights of the elderly), Article 26 (integration of persons

with disabilities) and Article 37 (environmental protection)

as examples of Charter provisions which contain

principles, as opposed to subjective rights.

• Rights (fundamental/not) – the right to life, the right to

liberty security, prohibition of inhuman and degrating

treatment, etc.

• It also explicitly mentions under Article 34 (1) (social

security and social assistance), Article 35 (healthcare),

Article 36 (access to services of general economic interest)

and Article 38 (consumer protection) that the articles set

out principles, not rights.

Difference between rights and principles:

• Subjective rights shall be respected,

whereas principles shall be observed

(Article 51(1) of the Charter).

• The explanatory memorandum also lists examples of

articles which contain both elements of a right and of

a principle, such as Articles 23 (equality between

women and men), 33 (family and private life

protection), etc.

I. Conflicts between EU Fundamental Rights andFreedoms. Examples from the case –law of the

CJEU:

Article 42 of the Charter:

- any EU citizen and any natural or legalperson [...] has a right of access to documentsof the EU institutions, bodies, offices andagencies;

• - this right is subject to certain exceptions;

• - the institutions refuse access wheredisclosure would undermine the protectionof the public interest.

I. Conflicts between EU Fundamental Rights and Freedoms:

• Case C-266/05 P - Jose Maria Sison against the Councilof the EU

• Access to documents of the EU institutions – Refusal ofaccess – Public interest – sensitive documents.

• The applicant requested access to the documents whichhad led the Council to adopt Decision 2002/848 [...] onspecific restrictive measures directed against certainpersons and entities with a view to combatingterrorism;

• As the applicant, consequently after the adoption ofsuch measures, was placed in the list of persons whosefunds and financial assets are to be frozen.

• Such access was denied by the EU Council...

The CJEU:

• The CJEU:

• It follows that the Council did not make amanifest error of assessment inconsidering that disclosure of thedocument requested was likely toundermine the public interest as regardsinternational relations.

• It must therefore be held that sensitivedocuments are covered by a derogation[…].

In the case of a conflict:

• What rights are conflicting? [Very] different [fundamental]rights could be involved in the different circumstances :

• The right of access to documents v. private/family lifeprotection;

• The right of access to documents v. general interests‘protection/ or the protection of the rights of others/orsensitive documents‘ protection;

• Right to prepare the defence during the judicial proceedingsconcerning the restrictions on access on some documentsplaced (cases in the ECtHR); etc.

Case C-266/05 P - Jose Maria Sison:

• That decision included the applicant in thelist of persons whose funds and financialassets are to be frozen.

• The applicant requested access to the documents whichhad led the Council to adopt Decision 2002/848 andconsequently,

• such access (even partial) was refusedrelying on the protection of the publicinterest as regards public security and theeffectiveness of the fight against terrorism.

Giordano v Commission case (judgment in Case C-611/12 P)

• The Charter, in its Article 15(1), protects the right to engage in work and to pursue a freely chosen or accepted occupation/Limitationsof this right and Article 17 — Right to property.

• Giordano v Commission case (judgment in Case C-611/12 P), theCJEU held that:

• the imposition of a fishing ban due to serious threat to theconservation of a particular fish stock did not infringe the free-doms and rights, as set out in Art. 15 and 17 of the Charter, ofowners of vessels having a licence and individual quota to fish thisfish, even if the ban became effective before the individual quotawas exhausted.

• the freedom to pursue a trade or profession does not constitute anabsolute prerogative; it must be viewed in relation to its functionin society.

Limitation of the Rights and/or Principles?

• What does it mean – to be viewed in relation to its functionin society??

• Is such limitation ground in Article 52 of the Charter??

• Limitations may be imposed on the exercise of that freedomprovided that in accordance with Article 52(1) of the Charter

• (prescribed by law, within the principle of proportionality,are necessary and genuinely meet objectives of generalinterest recognised by the European Union or the need toprotect the rights and freedoms of others).

• In any case – a fair balance/proper balance of differentinterests involved should be performed.

The Digital Rights Ireland case, (judgment of 8.4.2014, Cases C-293/12 and C-594/12)

• Art.7 – Respect for private and family life, Art.8 — Protectionof personal data, Art.11 — Freedom of expression andinformation of the EU Charter

• The CJEU has clearly underlined the need to protect but alsobalance fundamental rights correctly in the digitalenvironment.

• This is the fundamental principle – proper balancing testbetween conflicting fundamental rights/or a proper balancein applying the limitations.

• In the Digital Rights Ireland case, the Court reiterated the EUinstitutions’ obligations to respect the Charter in theiractivities, namely where they affect the right to privacy,private life and personal data protection.

Conflicts between EU and ECHR law – Startinglegal point/or “conflict“ – Opinion 2/13:

• On 18 December 2014, the CJEU delivered itsopinion 2/13 on the Draft agreement onEuropean Union‘s accession to the EuropeanConvention for the Protection of Human Rightsand Fundamental Freedoms (the ECHR);

• The Court identified problems as to its compatibilitywith EU law;

• it ruled the draft accession agreement incompatiblewith Article 6(2) TEU and the related Protocol No 8.

Opinion 2/13 of 18 December 2014:

• The CJEU called for certain amendments:

• primacy of Union law in relation to the possibilitiesconferred by Article 53 of the Charter as regards strongerfundamental rights in Member States’ constitutions; [...]

• relation with the new Additional Protocol 16 to the ECHR;

• preservation of the exclusive jurisdiction of the CJEU todecide disputes concerning interpretation or application ofthe Treaties;

• certain aspects of the procedure before the European Courtof Human Rights (ECtHR) involving the EU;

• BUT - The Commission remains fully committed to EUaccession to the ECHR.

The Case C-617/10Åklagarenv Hans ÅkerbergFransson/differences as regards the national courts‘ role:

• Question - whether a national judicial practice is compatiblewith EU law if it makes the obligation for a national court todisapply any provision contrary to a fundamental rightguaranteed by the ECHR and by the Charter […]?

• [...] as Article 6(3) TEU confirms, fundamental rightsrecognised by the ECHR constitute general principles of theEuropean Union’s law and whilst Article 52(3) of the Charterrequires rights contained in the Charter which correspond torights guaranteed by the ECHR to be given the same meaningand scope as those laid down by the ECHR,

• the latter does not constitute, as long as the European Unionhas not acceded to it, a legal instrument which has beenformally incorporated into European Union law (See Opinion2/13).

Conflict between provisions of domestic law and the Charter/EU law:

• [...] it is settled case-law that a national courtwhich is called upon to apply provisions ofEuropean Union law, is under a duty to give fulleffect to those provisions, and

• if necessary

• [even] refusing of its own motion to apply anyconflicting provision of national legislation […]

(Case 106/77 Simmenthal [1978] ECR 629, paragraphs 21 and 24; JoinedCases C-188/10 and C-189/10 Melki and Abdeli [2010] ECR I-5667, paragraph43).

The Case C-617/10 Åklagaren v Hans ÅkerbergFransson/relationship between the ECHR and legal systems of Member States:

• European Union law does not govern therelations between the European Convention onHuman Rights and the legal systems of theMember States,

• nor does it determine

• the conclusions to be drawn by a national courtin the event of conflict between the rightsguaranteed by that Convention and a rule ofnational law

• (see, to this effect, Case C-571/10 Kamberaj [2012] ECR,paragraph 62).

Bosphorus HavaYollarıTurizm ve Ticaret AnonimŞirketiv. Ireland [GC], appl. No. 45036/98, judgment of 30.06.2005

• Relatioship between the EU law and the ECHR – startinglegal point [of crucial importance]:

• Protection of fundamental rights by EC lawequivalent to that of the European Conventionon Human Rights system, unless thepresumption to that effect was rebutted

• Article 1 of Protocol No. 1 - Control of the use ofproperty (Impounding of leased aircraft in pursuance ofUN sanctions regime and EC Council Regulation).

• No violation

The principle of the equivalent protection:

• As to the justification of the impoundment the ECtHR foundthat:

• the protection of fundamental rights by EClaw could have been considered to be, andto have been at the relevant time,“equivalent” to that of the Conventionsystem.

• Consequently, a presumption arose that Ireland had notdeparted from the requirements of the Convention when ithad implemented legal obligations flowing from itsmembership of the EC.

Another example - M.S.S. v. Belgium and Greece [GC], appl. No.

30696/09, judgment of 21.01.2011 – a [direct] conflict

• Deficiencies in the asylum procedure in Greece and riskof expulsion without any serious examination of meritsof asylum application or access to effective remedy.

• The case concerned the expulsion of asylum seekers inapplication of the EU “Dublin II” Regulation underwhich EU Member States are required to determine,based on a hierarchy of objective criteria (Articles 5 to14), which member State is responsible for examiningan asylum application lodged on their territory.

• Many violations as regards both countries established.

M.S.S. v. Belgium and Greece/judgment of 21.01.2011

• Facts:

• The applicant, an Afghan national, entered the EuropeanUnion via Greece. In February 2009 he arrived in Belgium,where he applied for asylum. In accordance with the DublinRegulation, the Aliens Office asked the Greek authorities totake responsibility for the asylum application.

• The Greek authorities confirmed their responsibility toexamine the asylum application.

• He was sent back to Greece on 15 June 2009 […] having nomeans of subsistence, he lived in the street […]

ECtHR earlier position/General measures of the ECtHR v. EU obligations:

• K.R.S. v. the United Kingdom (dec.) (appl. No. 32733/08) 2December 2008):

• removing an asylum seeker to Greece under the Dublin IIRegulation did not violate the Convention.

• [...] however, numerous international reports and materialsdemonstrated practical difficulties involved in theapplication of the Dublin system in Greece.

• Article 46: General measures under ECHR:

• Without prejudice to the general measures required toprevent other similar violations in the future,

• Greece was to proceed, without delay,

• with an examination of the merits of the applicant’s asylumrequest in keeping with the requirements of the Convention[...]

CJEU follow-up:

• In Saciri and Others (Judgment of 27 February 2014,Case C-79/13) the CJEU clarified the minimumstandards Member States must observe to ensure thatasylum applicants are housed adequately.

• Where a Member State grants material receptionconditions in the form of financial allowances, the totalamount of the financial allowances must be sufficientto ensure a dignified standard of living, adequate forthe health of applicants, and capable of ensuring theirsubsistence […]

Tarakhel v. Switzerland case in the ECtHR:

• Another [GC] case (appl. No. 29217/12, judgment of 4.11.2014) -whether a Dublin transfer of a family with children by Switzerlandto Italy would violate Articles 3, 13 and 8 of the ECHR.

• The ECtHR did not consider that there are systemicdeficiencies in the Italian asylum system such as wouldjustify a systematic suspension of Dublin transfers toItaly, stressing that the situation in Italy is notcomparable to the situation in Greece which led to theECtHR M.S.S judgment.

• In view of complying with Article 3 of the ECHR, Switzerland shouldseek individual guarantees from Italy ‘that the applicants would betaken charge of in a manner adapted to the age of the children andthat the family would be kept together’ before sending theapplicants to Italy.

Ullens de Schooten and Rezabek v. Belgium, Appl. Nos. 3989/07 and 38353/07, judgment of 20.09.2011

• Different aspect - the right/obligation of the national courtsto bring the matter before the Court of Justice for apreliminary Ruling/and the right to a fair trial under Art. 6 ofthe ECHR (reasoning of the decisions).

• No violation of Art. 6 (fair trial).

• 56. The Court [ECtHR] first observes that, [under ...] [Article267 of the TFEU], when a question concerning theinterpretation of the Treaty is raised in a case pending beforea national court or tribunal against whose decisions there isno judicial remedy under national law – such as, in thepresent case, the Court of Cassation and the Conseil d’Etat –,that court or tribunal is required to bring the matter beforethe Court of Justice for a preliminary ruling.

Conclusion of the ECtHR in Ullens case:

• 57. [...] the Convention does not guarantee, as such, any right tohave a case referred by a domestic court to another national orinternational authority for a preliminary ruling (see, in particular,Coëme and Others v. Belgium, § 114, ECHR 2000-VII);

• 67. [...] having regard to the reasons given by the Court ofCassation and the Conseil d’Etat in support of their refusal to grantthe applicants’ requests to refer to the Court of Justice preliminaryquestions on the interpretation of Community law [...], andconsidering those proceedings as a whole, the Court finds thatthere has been no violation of the applicants’ right to a fair hearingwithin the meaning of Article 6 § 1 of the Convention.

• ECtHR - Konnoly Bertrand v. 15 Member States of the EuropeanUnion, appl. No. 73274/01, 09/12/2008 – Decision oninadmissibility as well.

Conflicts between UN acts and the ECHR:

• Article 103 of the United Nations Charter - MemberStates’ obligations under the UN Charter shall prevail inthe event of a conflict with obligations under any otherinternational agreement.

• The European Convention on Human Rights could NOTbe interpreted in such a way as to place under thecontrol of the Strasbourg Court the actions andomissions of contracting parties covered by SecurityCouncil resolutions and committed prior to or duringUN missions aimed at preserving international peaceand security.

Inadmissible Ratione personae:

• Behrami and Behrami v. France and Saramati v. France,Germany and Norway case, Appl. No. 71412/01, Decision2.5.2007 [GC]

• Inadmissibility Ratione personae - Applications concerningacts performed by KFOR and UNMIK in Kosovo under theaegis of the United Nations dismissed by the ECtHR:

• Behrami and Behrami case: The two applicants in March2000 lived in the sector of Kosovo for which a multinationalbrigade led by France was responsible.

• The brigade was part of the international security force(KFOR) presence in Kosovo, mandated by UN SecurityCouncil Resolution 1244 of June 1999.

Primacy of the obligations arising from the UN Charter

• The Convention could NOT be interpreted in such away as to place under the control of the StrasbourgCourt the actions and omissions of contractingparties covered by Security Council resolutions andcommitted prior to or during UN missions aimed atpreserving international peace and security.

• This would amount to interference in theaccomplishment of an essential mission of the UNin this field, or in the effective conduct of suchoperations.

• Therefore the complaints must be declaredincompatible ratione personae.

Nada v. Switzerland case, Appl. No. 10593/08, Judgment of 12.9.2012 [GC]

• Prohibition, under legislation implementing UN Security CouncilResolutions, on travel through country surrounding enclave:Violation of Article 8.

• Facts:• The Swiss Federal Taliban Ordinance was enacted pursuant to

several UN Security Council Resolutions.• It prevented the applicant, an Egyptian national, from entering or

transiting through Switzerland as his name was added to the listannexed to the UN Security Council’s Sanctions Committee ofpersons suspected of being associated with the Taliban and al-Qaeda.

• The applicant had been living in Campione d’Italia, an Italianenclave of about 1.6 square kilometres surrounded by the SwissCanton of Ticino and separated from the rest of Italy by a lake.

• The applicant claimed under Art. 8 of the Convention that therestriction made it difficult for him to leave the enclave, to see hisfriends and family, to receive appropriate medical treatment, etc.

Nada v. Switzerland:

• Proportionality of the measures under Art. 8:

• – […] the Swiss authorities had not informed the SanctionsCommittee until September 2009 of the Federal Prosecutor’sfindings in May 2005 that the accusations against the applicantwere clearly unfounded […];

• a medical aspect - the applicant was born in 1931, had serioushealth problems […];

• Nor had the Swiss authorities offered him any assistance in seekinga broad exemption from the ban […]; therefore, Violation of Art. 8.

• That finding dispensed the Court from determining thequestion of the hierarchy between the obligationsarising under the Convention on the one hand andunder the UN Charter on the other.

• Nada and Behrami cases – different solutions; why?

Al-Jedda v. the United Kingdom[GC], Appl. No. 27021/08, judgment of 07/08/2011

• Continued preventive detention of Iraqi national byBritish Armed Forces in Iraq on basis of UnitedNations Security Council Resolution:

• Violation of Article 5 of the ECHR by the UnitedKingdom.

• When considering the relationship between theConvention and Security Council resolutions,the Court had found that there must be apresumption that the Security Council does notintend to impose any obligation on MemberStates to breach fundamental principles ofhuman rights.

Article 1 of the ECHR/jurisdiction

• The ECtHR:

• (a) Jurisdiction of the United Kingdom under Art. 1 of theConvention – the Security Council had neither effectivecontrol nor ultimate authority and control over the acts andomissions of troops within the Multi-National Force.

• The applicant’s detention was therefore not attributable tothe United Nations.

• The internment had taken place within a detention facilitycontrolled exclusively by British forces.

• Conclusion: within the jurisdiction (unanimously).

Al-Dulimiand Montana Management Inc. v. Switzerland, No. 5809/08, judgment of 26.11.2013 BUT this case was referred to the Grand Chamber on 14 April 2014(pending before the GC case)

• Civil proceedings, Article 6-1, Access to a court

• Lack of right of appeal against sanctions imposed onapplicants on basis of UN Security Council resolutions ASREGARDS THE FREEZING AND LATER ON, CONFISCATING allfunds and other financial assets and economic resources thatcame from Iraq:

• Violation of Art. 6 of the ECHR (4 votes to 3).

• Chamber of 7 judges decided that the presumption ofequivalent protection was not applicable in this case.

• Case pending before the GC of the ECtHR.

DISSENTING OPINION OF JUDGE LORENZEN JOINED BY JUDGES RAIMONDI AND JOČIENĖ

• [...] I am not able to agree with this reasoning, which in myopinion overlooks important issues which the Court has notruled upon so far in its jurisprudence.

• The most crucial one is the impact of Article 103 of theCharter of the United Nations, under which the obligationsof the member States of the United Nations prevail in case ofa conflict with other international instruments. Such anobligation follows from Article 25 of the Charter, pursuant towhich the member States are obliged “to accept and carryout” the decisions of the Security Council [...].