Abstract
This chapter examines the mechanism on prior involvement of Luxembourg Court as established by the DAA, and the main ambiguities which the autonomy of EU law requires to keep sealed therein. This analysis is made against a complex background of EU law autonomy, EU peculiar institutional features and the Strasbourg Court’s natural jurisdictional function (subsidiary review). The chapter responds to the research sub-question: ‘What are the legal implications that the use of the prior-involvement mechanism may reflect, and how can one deconstruct its mechanics to make it readable to the individual claimant?’ The chapter therefore provides an in-depth examination of the prior-involvement provisions of the DAA and circumstances when they may be utilized, paying singular attention to the effect on norms that may become reviewed and jurisdictional means that may become utilized under this procedure both at EU law and Strasbourg level. This is done by cautiously assessing the origins of norms that may become reviewed in the course of prior involvement, and eligibility means which EU would need to fulfill to become entitled to request this procedure. Although prior involvement is argued as a privilege for EU, the chapter also tries to depict legal implications which Luxembourg Court will face to assess the Convention-violating EU law provisions, something that is tackled both in terms of scope of review and nature of effect of Luxembourg’s filters. Besides examining the conditions which EU would need to fulfill to operate the prior involvement procedure, this chapter also tackles the current EU Treaties’ spaces which may be utilized to reconcile this procedure with the EU Treaties’ instructions. The chapter in addition analyzes the integrity of this procedure in EU current legal remedies’ system, offering a number of arguments in relation to the fact that this new procedure may introduce certain implicit Treaty changes in EU law and institutional structure. This is tackled from the perspective of whether prior involvement introduces a new remedy, to a degree which also silently amends the EU Treaties. The chapter concludes that prior involvement procedure may perhaps implicate certain aspects of the EU legal remedies’ system, however it seems a very good device to defend the EU Court’s exclusive jurisdiction.
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Notes
- 1.
Contra: Referring to Lock, Gragl basically argues that there is in principle no need to establish a prior involvement mechanism in order to safeguard the autonomy of EU law, as the Strasbourg Court decisions are merely declaratory and may not question the validity of EU law from the internal perspective. See: Gragl (2013), p. 234/5. This issue is counter argued below in this chapter, adding that the baseline argument is that, still, this mechanism may pose challenges to the EU law autonomy, indispensable of the fact that Strasbourg’s decisions produce no direct internal effect in EU legal order.
- 2.
Cf.: Considering previous possibilities, Gragl notes that as a first option one has to consider whether it would be possible to establish an external mechanism in the form of a ‘reference procedure’ from Strasbourg Court to Luxembourg Court instead of the prior involvement mechanism. Referring to Lock, Gragl argues that such external mechanism would directly interfere to the EU law autonomy and provide an amendment to the EU Treaties. Such an external mechanism in the form of a ‘reference procedure’—similar to the preliminary reference procedure under the EU Treaties—via which Strasbourg Court would have referred a case to the Luxembourg Court to rule on the EU law question, in Gragl’s words, would have moreover added a new function to the EU Treaties and change the nature of the function which the latter has recognized to the Luxembourg Court. It is therefore, in Gragl’s words, maintained that the DAA’s reference to an internal EU law mechanism—the prior involvement—as opposed to an external one, seems the only way to keep EU law autonomy respected. Such external reference mechanism would have also privileged EU too much, and destroy the concept of EU accession to ECHR on ‘equal footing’, as the Member States’ senior courts have no such authority under the current Convention system. Finally, Gragl points that—referring to Opinion 1/91 and 1/09—such reference procedure would prejudice the role of national courts to refer preliminary reference questions and therefore deprive them from this natural role which they currently possess under the EU Treaties. See: Gragl (2013), p. 237–239. A similar argument on the reference procedure under Protocol 16 ECHR has been said by the Luxembourg Court in its recent Opinion 2/13; Cf. also: According to Gragl, another option mentioned in the negotiations process was to devise the mechanism of a reference for an ‘opinion’ via which the Strasbourg Court requires an opinion from the Luxembourg Court for the question of compatibility of the alleged violation with the EU legal basis and EU law in general. The unenthusiastic aspect of this proposal, however, would be that the Luxembourg Court would merely provide an opinion but would have not been able to remedy the violation. That being the case, Gragl argues that such mechanism would have not been in compliance with the Strasbourg Court’s subsidiary character (Art. 35.1 ECHR). See: Gragl (2013), p. 240/1.
- 3.
- 4.
On the rule on exhaustion, see e.g.: Ribble (2010–2011), p. 214; The International Court of Justice has argued in Interhandel Case that in order to get access to a tribunal of international law, it should be first the national tribunals which should be given the chance to rule on the issue. See: International Court of Justice, Interhandel Case (Switz. v. U.S.), [1959] I.C.J. 6, 27 (Mar. 21); One should also note that in the hearing sessions on Opinion 2/13, the Commission seemed to argue that one of the safeguards of the EU law autonomy is the rule on exhaustion which would ensure that the Strasbourg Court could not rule on EU law compliance with the Convention without the Luxembourg Court having had the opportunity first to do that.
- 5.
Besson (2009), p. 239.
- 6.
On the latter, see e.g.: Jacque (2011), p. 1016/7.
- 7.
- 8.
The EU law being itself a regime/system of law, with fully fledged structural organization. See generally: Harding (2000), p. 130.
- 9.
One should add that the appeal to the European Ombudsman may not be qualified as a remedy that can make a party eligible to enter Strasbourg gates. See e.g.: Lock (2010), p. 789.
- 10.
- 11.
- 12.
- 13.
Eliantonio and Stratieva (2003), p. 11.
- 14.
Cf.: Court of Justice of EU, Les Verts v European Parliament, C-294/83 [1986] ECR 1339, para. 23, where the Court argued that ‘the Treaty established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions. Natural and legal persons are thus protected against the application to them of general measures which they cannot contest directly before the Court by reason of the special conditions of admissibility laid down in the second paragraph of […Art. 263(4)…] of the Treaty.’ This is still not a complete answer, as most regulations are directly applicable and not of general nature but do not pass the test of individual concern, which in fact makes it not possible for private parties to attack them before the EU Court.
- 15.
- 16.
Court of Justice of EU, Case C-263/02 P Commission v Jégo-Quéré [2004] ECR I-3425.
- 17.
Court of Justice of EU, Case C-263/02 P Commission v Jégo-Quéré [2004] ECR I-3425, note 16, para 36; See also: Court of Justice of EU, Order of 9 January 2007 in Case T-127/05 Lootus Teine Osaühing v Council, para 50.
- 18.
Court of Justice of EU, Unión de Pequeños Agricultores v Council, Case C-50/00 P [2002] ECR I-6677, para 46.
- 19.
Court of Justice of EU, C.I.L.F.I.T. v Ministry of Health, Case 283/81, Judgment OF 6.10.1982, para. 9.
- 20.
- 21.
AG Jacobs Opinion in UPA, Case C-50/00 P, delivered on 21 March 2002, para. 59.
- 22.
AG Jacobs Opinion in UPA, Case C-50/00 P, delivered on 21 March 2002, note 21, para 59.
- 23.
Court of Justice of EU, C-97/85, Deutsche Lebensmittelwerke v Commission [1987] ECR 2265, para. 11; See also: Balfour (2005), p. 38.
- 24.
E.g.: Ward (2001), p. 433.
- 25.
Which may certainly violate Art. 6 and Art. 13 ECHR. See: Balfour (2005), p. 35; Adding here that e.g. the German jurisprudence does not restrain itself to consider itself constitutionally authorized to review EU acts if they rebut the principle of solange human rights protection. On this tension which partially derives also from the lack of reliable access of private parties to the EU Court, see e.g.: Payandeh (2011), p. 15; See also: Miiller (2007), p. 59 et seq, on Solange’s current understanding in European human rights law.
- 26.
See also criticisms at: Ragolle (2003), p. 90.
- 27.
On human rights approach of the Court on Jusuf case, see: Miiller (2007), p. 59; Cf.: Heringa and Verhey (2011), p. 20, which states that ‘…there seems to be a related aspect which should be considered. Article 47 entitles everyone to ‘an effective remedy before a tribunal’. If we can safely assume that Article 6 of the ECHR is fully incorporated within Article 47, then Article 47 requires the establishment of court proceedings in which a court can give binding decisions which provide for adequate relief to the petitioner.’.
- 28.
van Gerven (2005), p. 63.
- 29.
Court of Justice of EU, France v Commission, Joined Cases 15/76 and 16/76 [1979] ECR 321, para 7.
- 30.
On the Convention as a modern-day instrument, see e.g.: Heringa and Verhey (2011), p. 19.
- 31.
Shelton (2003), p. 126.
- 32.
ECtHR (GC), Beer and Regan v. Germany, Application No. 28934/95, judgment of 18 February 1999, para. 62.
- 33.
Cf.: ECtHR, Michaud v. France, Application No. 12323/11, judgment of 6 December 2012, para. 111, where the Strasbourg Court absurdly and weirdly calls the EU system of legal remedies limited but comparable to that of the Convention system.
- 34.
On the latter part of the argument, see: Balfour (2005), p. 39 (‘[…] the individual is currently unable to enforce these rights in an effective and practical manner.’).
- 35.
Inter-American Court of Human Rights, (Exceptions to the Exhaustion of Domestic Remedies in Cases of Indigency or Inability to Obtain Legal Representation Because of a Generalized Fear Within the Legal Community (Arts. 46(1), 46(2)(a) and 46(2)(b) of the American Convention on Human Rights), Advisory Opinion OC-11/90 of August 10, 1990, para. 23 [emphasis added].
- 36.
Court of Justice of EU, Unión de Pequeños v Council Case C-50/00 P [2002] ECR I-6677, note 18, para. 42.
- 37.
See: Komárek (2013), p. 436, on the so called ‘parallel references’, a situation in which a certain measure is not merely against the EU law but also the national constitutional provisions. In that case, the question would have to be referred simultaneously to the EU Court and the national constitutional court, each of them having the possibility to give diverging verdicts thus complicating the issue even more. See e.g. Czech Constitutional Court, Decision on Admissibility, 2008/12/02 – Pl. ÚS 12/08: Non-Applicability of Contested Provision, available at: http://www.usoud.cz/en/decisions/?tx_ttnews%5Btt_news%5D=483&cHash=6b8830d1a16e4ba14dcbc3b678bb7bb2.
- 38.
Emphasis added. Accord: The Luxembourg Court has tried to argue that the failure to offer sufficient national legal remedies to access the court violates the principle of loyal cooperation under the Treaties, as follows: ‘Applying the principle of cooperation laid down in Article [4(3) TEU], it is the national courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of Community law.’ See: Court of Justice of EU, Rewe-Zentralfi nanz and Others v Landwirtschaftskammer für das Saarland, Case 33/76 [1976] ECR 1989, para. 5.
- 39.
AG Jacobs Opinion in UPA, Case C-50/00 P, delivered on 21 March 2002, note 21, para 37; Cf.: The EU Court, on the other hand, has ruled that ‘the principle of effective judicial protection of an individual’s rights under Community law must be interpreted as meaning that it does not require the national legal order of a Member State to provide for a free-standing action for an examination of whether national provisions are compatible with Article [56 TFEU], provided that other effective legal remedies, which are no less favourable than those governing similar domestic actions, make it possible for such a question of compatibility to be determined as a preliminary issue, which is a matter for the national court to establish.’ See: CJEU, Unibet v Justitiekanslern, Case C-432/05 [2007] ECR I-2271, para. 65; I take the view that although this approach of argument seems rightly stressed by the EU Court, there are too many obstacles in practice which make this proclamation merely of a theoretical nature.
- 40.
Court of Justice of EU, Unión de Pequeños Agricultores v Council, Case C-50/00 P [2002] ECR I-6677, note 18, para 44.
- 41.
Court of Justice of EU, IATA and ELFAA, Case C-344/04 [2006] ECR I-403, para. 30 [Emphasis added].
- 42.
Cf.: ECtHR, Michaud v. France, Application No. 12323/11, judgment of 6 December 2012, para. 115, where the Strasbourg Court ruled that if the case has not gone through the review of the Luxembourg Court (because the national court did not refer a preliminary reference question), the state’s act—although stemming from an EU law obligation—is not deemed as shielded with the equivalent protection doctrine.
- 43.
AG Jacobs Opinion in UPA, Case C-50/00 P, delivered on 21 March 2002, note 21, para 38.
- 44.
Opinion of AG Darmon in Borelli, Case C-97/91 [1992] ECR I-6313, para 31.
- 45.
AG Jacobs Opinion in UPA, op. cit. note 115, para. 39; Court of Justice of EU, Commission v Austria, Case C-424/99 [2001] ECR I-9285, para 45; See also: Court of Justice of EU, Johnston, Case 222/84 [1986] ECR 1651, para 18; See also: Balfour (2005), p. 41.
- 46.
AG Jacobs Opinion in UPA, Case C-50/00 P, delivered on 21 March 2002, note 21, para. 40.
- 47.
Court of Justice of EU, Unión de Pequeños Agricultores v Council, Case C-50/00 P [2002] ECR I-6677, note 18, para. 40; See also: Court of Justice of EU, Les Verts v Parliament, Case 294/83 [1986] ECR 1339, para 23.
- 48.
Court of Justice of EU, C.I.L.F.I.T. v Ministry of Health, Case 283/81, Judgment OF 6.10.1982, para. 9.
- 49.
Court of Justice of EU, IATA and ELFAA, Case C-344/04 [2006] ECR I-403, note 41, para. 28.
- 50.
E.g.: van den Berghe (2010), p. 125; See also: Discussion document of the Court of Justice of the European Union on certain aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, para 10 (‘…it is not possible for the parties to set this procedure in motion.’); See also: Craig (2013), p. 1125, arguing that the claimant can in no way be in control of this procedure; Odermatt (2014), p. 28.
- 51.
The EU Court has itself accepted that the national courts enjoys the widest discretion within this context. See: Court of Justice of EU, Rheinmühlen-Düsseldorf v Einfuhr- und Vorratstelle für Getreide, Case 166/73 [1974] ECR 33, para. 4.
- 52.
Court of Justice of EU, FMC and Others v Intervention Board For Agricultural Produce And Another, Case C-212/94 [1996] ECR I-389, para 56.
- 53.
Albors-Llorens (2012), p. 514.
- 54.
It is suggested that the better use of state liability against Member States which fail to use the preliminary reference procedure before the Luxembourg Court when the case involves a substance of EU law may seem a good strategy to force national courts to better apply Art. 267 TFEU. See on this: O’Meara (2011), p. 1830/1.
- 55.
See: Carrubba and Murrah (2005), p. 403 et seq, which shows which are those states more likely to use the preliminary reference procedure and reasons for such behavior; See also: Broberg and Fenger (2013), p. 501, who suggests that reasons for refusals to proceed with preliminary reference questions may be structural but also behavioral, making the point that there are clear differences between member states’ courts as to the use of this mechanism (therefore confirming our argument); See also generally: Lock (2010), p. 791.
- 56.
An interesting suggestion of a European Parliament Resolution on this scenario says (although one should not take it as being legally acceptable): ‘[…] for the purposes of complying with the requirement set out in Article 35 ECHR for domestic remedies to have been exhausted, the applicant shall have exhausted the judicial remedies of the State concerned including a reference for a preliminary ruling to the Court in Luxembourg; 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.’ European Parliament resolution of 19 May 2010 on the institutional aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (2009/2241(INI)), para. 10.
- 57.
On how easy it is for a constitutional court to refuse referring a question to the EU Court, see: Pérez (2012), p. 123/4.
- 58.
AG Jacobs Opinion in UPA, Case C-50/00 P, delivered on 21 March 2002, note 21, para. 42.
- 59.
AG Jacobs Opinion in UPA, Case C-50/00 P, delivered on 21 March 2002, note 21, para. 42.
- 60.
See: Alter (1996), p. 466/7.
- 61.
AG Jacobs Opinion in UPA, Case C-50/00 P, delivered on 21 March 2002, note 21, para. 42.
- 62.
E.g. see UK court at: Court of Justice of EU, Imperial Tobacco and others, Case C-74/99 [2000] ECR I-8599, para. 2.
- 63.
Cf.: Peers (2006), p. 454, who argues that by ruling on the equivalent protection presumption in Bosphorus, the Court somehow recognized that equivalency with the accepted fact that the preliminary reference procedure reaches a basic level of human rights protection as well.
- 64.
AG Jacobs Opinion in UPA, Case C-50/00 P, delivered on 21 March 2002, note 21, para. 43.
- 65.
AG Jacobs Opinion in UPA, Case C-50/00 P, delivered on 21 March 2002, note 21, para. 43; See also: Eliantonio and Stratieva (2003), p. 4.
- 66.
Court of Justice of EU, Traghetti del Mediterraneo, Case C-173/03, judgement of 13 June 2006, [2006] I-5177; Court of Justice of EU, Köbler, Case C-224/01 [2003] ECR I-10139. There is a tendency of the Luxembourg Court to penalize national courts if they misused the application of the doctrine of acte clair as a means to escape the Luxembourg’s review while breaching the EU law. See: Groussot and Minssen (2007), p. 385; This might sound positive as to the criticisms of the huge discretion of national courts to decide whether to refer or not a question for preliminary reference.; On the horizontal effect of human rights under Francovic, see also: Shelton (2003), p. 112.
- 67.
Cf.: Jacque (2011), p. 1019, who proposes that EU should ensure through internal rules that everytime there is an EU issue the national court be forced to proceed with the preliminary reference question to Luxembourg Court. This, he argues, would then better exhaust legal remedies for that applicant if he/she chooses to file an application before the Strasbourg Court; See also a general analysis, at: Craig and de Búrca (2003).
- 68.
AG Jacobs Opinion in UPA, Case C-50/00 P, delivered on 21 March 2002, note 21, para. 53; Cf.: Court of Justice of EU, Melki, joint cases C-188 and 189/10, judgment of 22 June 2010, [2010] I-5667; To note, in SNUPAT the Luxembourg Court has noted that the principle of legal certainty must be combined with the principle of legality, which makes really narrow the scope of a general principle of law on legal certainty compared to democratic standards. See: Groussot and Minssen (2007), p. 389.
- 69.
This is further supported by the fact that the Court in Åkerberg Fransson case has followed a narrow but negative legislating approach to defining the scope of the Charter of Fundamental Rights application on Member States actions. Such narrow scope based on an abstract list of rights makes the Charter as not very certain in guaranteeing some of the important human rights. Thym seems to consider Fransson as rather narrow approach, for which I would rather disagree as explained supra in the section on the Charter on Fundamental Rights (as, compared to the new case-law on this issue, Fransson seem to have provided for a very broad approach on the scope of Art. 51 ChFR). On the first argument above, see: Thym (2013b), p. 394; On the impaired system of legal remedies, see also: van den Berghe (2010), p. 113.
- 70.
AG Jacobs Opinion in UPA, Case C-50/00 P, delivered on 21 March 2002, note 21, para. 57; Cf.: Court of Justice of EU, Alassini, joint cases C-317 to 320/08, judgement of 18 March 2010, [2010] I-2213.
- 71.
AG Jacobs Opinion in UPA, Case C-50/00 P, delivered on 21 March 2002, note 21, para. 58; Cf.: Arnull (2011); See also: Court of Justice of EU, Unibet, case C-432/05, judgement of 13 March 2007, [2007] I-2271, para 41 et seq.
- 72.
Court of Justice of EU, Alassini, joint cases C-317 to 320/08, judgement of 18 March 2010, [2010] I-2213, para. 47 et seq.
- 73.
E.g.: Groussot and Minssen (2007), p. 390.
- 74.
Cf.: Lenaerts (2012), p. 382, who argues that national courts may be found liable under EU law if they use procedural autonomy to narrow the effectiveness of applicants’ right to access the EU courts.
- 75.
- 76.
Dougan (2004), p. 330; Cf.: Court of Justice of EU, Van Schijndel, Joint cases C-430 and 431/93, judgement of 14 December 1995, [1995] I-4705.
- 77.
Balfour (2005), p. 40.
- 78.
Contra: Contrary to this argument, one may bring the Strasbourg’s case Pafitis and Others v. Greece where the Court considered the lengthy procedures under EU judicature and their compliance with the Convention standards. The case had pursued a process that costed around almost 3 years due to the preliminary reference procedure triggered before the EU Court. Noting this elongated proceeding, a partial blame of which should be put on the long preliminary reference procedure before the Luxembourg Court, the Strasbourg Court ruled that it ‘cannot, however, take this period into consideration in its assessment of the length of each particular set of proceedings: even though it may at first sight appear relatively long, to take it into account would adversely affect the system instituted by Article 177 of the EEC Treaty and work against the aim pursued in substance in that Article.’ (ECtHR, Pafitis and Others v. Greece, Application no. 163/1996/782/983, Judgment of 26 February 1998, para. 95). The Court in the end called this case ratione personae inadmissible. One should say that, however, the Court does nowhere establish that the elongated judicial proceedings before the EU Court comply with the Convention standards. By the way, the Court itself noted that ‘it may at first sight appear relatively long’, hinting on the fact that they go beyond the normal standards. The Court’s move with the above statement, I argue, is simply intended to recognize the current system of preliminary reference without wishing to disturb its functioning as long as EU does not accede to the ECHR (while deferring to the Bosphorus formula). But one cannot imply from the foregoing statement that the Strasbourg Court considers this elongated procedure as fully compliant with the Convention. Furthermore, in his dissenting opinion of Judge Mifsud Bonnici, it is noted that ‘[t]hese three cases lasted for such an unreasonable length of time because in all of them the court awaited the decision which was to be given in case no. 10429/1986’ (para. 3). He went further to disagree with the Court’s rule, by noting that ‘applicants in the three above-mentioned cases had a right to expect that their cases would be heard within a reasonable time, irrespective of whether, in the opinion of the judges hearing the cases, it was expedient to await the outcome of case no. 10429/1986. That case was not heard within a reasonable time. The applicants in that case therefore suffered a breach of the basic right guaranteed by Article 6 § 1 and I cannot agree that the applicants in the three subsequent cases did not suffer the same kind of breach, just because their cases were made to depend on the first one. Surely it follows – logically and juridically – that the breach of the reasonable time requirement in the first case cannot be said to have purged the unreasonable delay in the three cases which followed it simply because it was juridically convenient to tie them up with the previous case which was already unreasonably long’ (para. 4). Demonstrating that the Court nowhere implied that the entire idea of the elongated process before the EU Court was supported by it, Judge Mifsud Bonnici further noted that ‘[t]he judgment on this point appears (at least) to imply that the length of the proceedings in the first case serves as a justification for the length of proceedings in subsequent cases. The violation suffered by the applicants in these three cases cannot be so justified and these applicants should have been granted a remedy for the breach they suffered even though it was due to the breach suffered by others before them’ (para. 5) (ECtHR, Pafitis and Others v. Greece, Application no. 163/1996/782/983, Judgement of 26 February 1998, Section on the Dissenting Opinion of Judge Mifsud Bonnici). Therefore, one may finally conclude that it was not the intention of the Strasbourg Court to rule that the elongated procedure before the Luxembourg Court is compliant with the Convention system.
- 79.
It is argued that ECHR standard on Art. 6 and 13 is far higher than that of EU fundamental rights law. See: Lenaerts and de Smijter (2001), p. 95; Cf.: Lawson (2005), p. 29, questioning why the Charter did not provide for a better access to court system of rights; See also, interestingly and selectively, the Luxembourg Court deferring to the Strasbourg Court in case Brussels II-bis Regulation. See on the latter: Morano-Foadi and Andreadakis (2011), p. 604; On the general possibility for EU Court to violate Art. 6 & 13 ECHR, see e.g.: Balfour (2007), p. 222; Phelps (2006), p. 277 (‘[…] although individuals may use national courts in an attempt to vindicate their rights, their ability to bring an action before the ECJ is limited. Therefore, the contention that the EC respects fundamental rights is a chimera, and a legal presumption of such should be considered premature.’).
- 80.
Landau (2008), p. 574 (‘Can one envisage the ECJ as a respondent in a claim, for instance, of a violation of Article 6 of the ECHR on grounds of an unfair trial by the Community Court?’).
- 81.
Court of Justice of EU, Heylens, case C-222/86, judgement of 15 October 1987, [1987] 4097.
- 82.
Cf.: Court of Justice of EU, Rewe, case 33/76, judgement of 16 December 1976, [1976] 1989.
- 83.
Tabarelli (2013), p. 352, to see how the discretion of national judges on applying the Community law appears in practice.
- 84.
Court of Justice of EU, Jégo Quéré, Case C-263/02 P, judgement of 1 April 2004, [2004] I-3425, para 48.
- 85.
- 86.
Komárek (2013), p. 433.
- 87.
The Court held e.g. a differentiated approach in front of Member States also in Omega Spielhallen- und Automatenaufstellungs-GmbH where it ruled: ‘The Court found that it is not necessary that all member states apply the same standard, even if it concerns a restriction of one of the fundamental economic freedoms on which the EU is based, as long as the restriction is necessary and cannot be realised with less restrictive measures.’ Besselink and Reestman (2008), p. 204 [emphasis added].
- 88.
On the notion of ‘systemic deficiency’ in the rule of law in the EU, see: von Bogdandy and Ioannidis (2014), p. 65 et seq; See also the Member States position on this, at: Report of the ECJ submitted to the Inter-Governmental Conference of 1996, available at: http://europa.eu.int/comm/eurostat/research/index.htm?http://europa.eu.int/en/comm/eurostat/research/viros/search3.htm&1; Cf.: AIRE Centre et al. (2013), p. 2, which requests a better system of legal remedies in the EU, in order to make the supervisory role of Strasbourg Court functional.
- 89.
ECtHR, Biret, Application no. 13762/04, Decision as to admissibility of 09 December 2008, para. 1.
- 90.
ECtHR, Biret, Application no. 13762/04, Decision as to admissibility of 09 December 2008, note 89, para. 1.
- 91.
ECtHR, Biret, Application no. 13762/04, Decision as to admissibility of 09 December 2008, note 90, para. 1. This was the first issue addressed with this application. The second issue, that of peaceful enjoyment under Art. 1 Protocol 1 ECHR, was decided as falling in the scope of equivalent protection formula (Ibid, para. 2), therefore inadmissible as well.
- 92.
In Bosphorus, the Strasbourg Court first clarified the EU system of legal remedies (para. 161). Then, it made the assertion that ‘[i]t is true that access of individuals to the ECJ under these provisions is limited: they have no locus standi under Articles 169 and 170; their right to initiate actions under Articles 173 and 175 is restricted as is, consequently, their right under Article 184; and they have no right to bring an action against another individual.’ (para. 162 [emphasis added]). Then, in paragraph 163, the Court noted that nevertheless the current actions that may be initiated before the EU Court by the community institutions represent important tools to control the compliance with the Convention which may benefit individuals indirectly. It also noted that individuals may ‘also bring an action for damages before the ECJ in respect of the non-contractual liability of the institutions’ (para. 163). The Court afterwards (in para. 164) noted that the national courts may use the preliminary reference procedure (as a complementary function) to address certain questions on EU law to the Luxembourg Court. The Strasbourg Court was wrong in this part to note that the preliminary reference procedure as a remedy of individuals, as this is in itself not a right of individuals but rather a discretion of national courts (see supra AG Jacobs’ arguments in UPA). It was highlighted, however, that the EU Court (para. 164) may through those proceedings also tackle the fundamental rights questions. In this regard, the Strasbourg Court ruled that the system of protection of fundamental rights was ‘equivalent’ to that of the Convention system (para. 165), therefore deferring to the ‘equivalent protection’ presumption (ECtHR, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v. Ireland, Application No. 45036/95 (Judgment of 30 June 2005). Considering these arguments, one should first note that it is the Strasbourg Court itself which considered the legal remedies’ system at the EU level as ‘limited’ (see supra para. 162). There seems no doubt that the Strasbourg Court nowhere recognized the direct actions before the EU Court as being completely equivalent to the Convention system. Basically, the Court tried to balance this ‘limited’ system of legal remedies with the fact that there is still available the action for damages which may be used by individuals before the EU Court. On the other hand, the Court nowhere overtly approved the preliminary reference procedure under the EU Treaties as being in compliance with the Convention. It merely stated that such procedure exists, and, amongst others, such procedure may consider fundamental rights questions posed by the national court. Lastly, one may not say that the Strasbourg Court finally approved the EU system of legal remedies as being compliant with the Convention: it merely deferred to the ‘equivalent protection’ presumption, which, as shown supra, is merely a systemic presumption that applies as long as there is no serious ‘manifest deficiency’. One may not draw the argument that as long as Strasbourg Court applied the ‘equivalent protection’ presumption it approved the EU system as being compliant with the Convention, since this direction may lead to the fact that EU will never be found liable before the Strasbourg Court post-accession. Therefore, the author of this book continues to defer to the argument that the system of legal remedies at the EU level is limited and not substantively in compliance with Art. 6 & 13 ECHR. Whether the Strasbourg Court will recognize certain margin of appreciation on Luxembourg Court on these two rights and therefore find the EU as not liable for violating the Convention is something that remains to be seen. The fact that the EU system of legal remedies is problematic under the Convention system is not doubtful at all from the substantive human rights perspective.
- 93.
ECtHR, Ullens de Schooten and Rezabek v. Belgium, Applications nos. 3989/07 and 38353/07, Judgement of 20 September 2011.
- 94.
ECtHR, Ullens de Schooten and Rezabek v. Belgium, Applications nos. 3989/07 and 38353/07, Judgement of 20 September 2011, note 93, para. 56.
- 95.
ECtHR, Ullens de Schooten and Rezabek v. Belgium, Applications nos. 3989/07 and 38353/07, Judgement of 20 September 2011, note 93, para. 57.
- 96.
ECtHR, Ullens de Schooten and Rezabek v. Belgium, Applications nos. 3989/07 and 38353/07, Judgement of 20 September 2011, note 93, para. 57.
- 97.
ECtHR, Ullens de Schooten and Rezabek v. Belgium, Applications nos. 3989/07 and 38353/07, Judgement of 20 September 2011, note 93, para. 58.
- 98.
The Court further ruled that ‘[i]t should further be observed that the Court does not rule out the possibility that, where a preliminary reference mechanism exists, refusal by a domestic court to grant a request for such a referral may, in certain circumstances, infringe the fairness of proceedings – even if that court is not ruling in the last instance. The same is true where the refusal proves arbitrary (ibid.), that is to say where there has been a refusal even though the applicable rules allow no exception to the principle of preliminary reference or no alternative thereto, where the refusal is based on reasons other than those provided for by the rules, and where the refusal has not been duly reasoned in accordance with those rules.’ (ECtHR, Ullens de Schooten and Rezabek v. Belgium, Applications nos. 3989/07 and 38353/07, op. cit. note 228, para. 59).
- 99.
ECtHR, Ullens de Schooten and Rezabek v. Belgium, Applications nos. 3989/07 and 38353/07, Judgement of 20 September 2011, note 93, para. 60.
- 100.
Cf.: Gragl (2013), p. 279, who advises that, post-accession, national judges should consider from omitting from the practice of refusing to pose questions to the EU Court on matters of EU law.
- 101.
Emphasis added.
- 102.
A similar construction of the duty to comply actively may be found also in Art. 1 of the African Charter on Human and Peoples’ Rights, which reads: ‘The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt legislative or other measures to give effect to them.’ [emphasis added]; Accord.: Article 2 (1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment prescribes similarly this duty, by establishing that: ‘Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.’ [emphasis added].
- 103.
One may also make the argument that it would not be only the EU the party responsible for this, but also the Member States (or them alone) since, if one upholds the argument that the barriers to access the court stem from the EU Treaties, then it is the Masters of the Treaties only which can remedy that violation and therefore hold the responsibility for that barrier.
- 104.
Referring to the Luxembourg Court’s Discussion Document on this issue, Gragl points that the Court basically argued that the principle of subsidiarity of the Convention system and the genuine operation of the EU judicature are linked closely together. See: Gragl (2013), p. 234. It is rightly maintained, therefore, the Convention’s subsidiarity would not operate if EU would continue to function under the current limited access to legal remedies of applicants, as demonstrated supra by this book.
- 105.
- 106.
- 107.
Art. 19 (1) TEU; See also a simple context of explanation on this, at: Commission Working Document DS 1930/10, Council of the European Union, FREMP meeting (Brussels, 10 January 2011) on the topic ‘Previous involvement of the Court of Justice in the context of the accession of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms’. Brussels, 22 December 2010, para. 12.
- 108.
Odermatt (2014), p. 27.
- 109.
Joint Communication from Presidents Costa and Skouris, European Court of Human Rights (ECHR) and the Court of Justice of the European Union (CJEU), 17 January 2011, p. 2, available at: http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-02/cedh_cjue_english.pdf; See also: O’Meara (2011), p. 1822; Odermatt (2014), p. 16; Besselink (2013), p. 308; Cf.: Balfour proposes that—in spite of the prior involvement mechanism—in order to minimize conflicting interpretations between Luxembourg Court and Strasbourg Court, there should be innovated a procedure—named as ‘pre-decision interpretation questions’—in which case Luxembourg would refer questions to Strasbourg Court asking it to issue guiding interpretative rulings in order to harmonize their interpretations. See: Balfour (2005), p. 23. This proposal, however, would make the Strasbourg Court rather a constitutional or fourth-instance court than an international subsidiary tribunal of human rights.
- 110.
Interlaken Declaration, High Level Conference on the Future of the European Court of Human Rights, 19 February 2010, part E, para. 9; See also generally: Groussot et al. (2011), p. 6; Contra: Gragl argues that it would not be possible in principle for the EU to find itself in the seat of a co-respondent without its court having had first the opportunity to rule on that case. See: Gragl (2013), p. 236. I fully disagree with Gragl, and maintain the opposite. In fact, the EU may apply for the status of co-respondent only when its Member States—after the claimants had exhausted the legal remedies before the Member State—caused a violation which the claimants filed before the Strasbourg Court. Practically, this means that the EU Court has had no chance to review the legal basis of the Member State(s) violation—excluding the situation when the Member State’s court utilized the preliminary reference procedure before the EU Court, which, again, would not make it possible for the EU to utilize the prior involvement—if the Member State’s violation was merely exhausted before that state’s court system. Therefore, in this regard, a prior involvement mechanism is absolutely necessary to preserve the EU law autonomy if one thinks from the perspective of an EU Court judge.
- 111.
Baratta (2013), p. 1316, on the EU law autonomy relevance of this mechanism; See also: Quirico (2010), p. 48; Cf: Gragl makes the point that the prior involvement mechanism is in principle not allowed to introduce and make any amendment to the EU Treaties, as that would then go against both the EU Treaties’ limitations on this issue but also against the fact that the relevant DAA provision on this mechanism explicitly says that it should not affect the competences of the EU Court. See: Gragl (2013), p. 236.
- 112.
Discussion document of the Court of Justice of the European Union on certain aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Luxembourg, 5 May 2010, available at:http://curia.europa.eu/jcms/upload/docs/application/pdf/2010-05/convention_en.pdf, para 11.
- 113.
- 114.
As appeared in Intertanko and Kadi, the EU had to hold itself an international responsibility for its Member States’ international obligations. For this, see: van Rossem (2009), p. 184 et seq. By contrast to these two examples, the prior involvement mechanism under Art. 3 (6) DAT aims to make the EU itself liable before the Strasbourg Court for its own law, and not bypassing this through the member states’ international obligations; On the need of Luxembourg for first reviewing the EU act before it reaches Strasbourg Court, see also: Craig (2013), p. 1124; Odermatt (2014), p. 27.
- 115.
Jacque (2011), p. 1017/8; Adding here that prior involvement will most often be raised in the context of domestic cases which were refused preliminary reference review by Luxembourg Court. See on this: O’Meara (2011), p. 1823; In addition, the latter, in p. 1830, argues that post-accession situation will force EU to request Member States’ courts to better make use of the preliminary reference procedure, in order to make it easier for them to pass the admissibility procedure before the Strasbourg Court.
- 116.
- 117.
Discussion document of the Court of Justice of the European Union on certain aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, op. cit. note 11, para 9.
- 118.
Thym (2013a), p. 3 [emphasis added].
- 119.
Baratta (2013), p. 1323.
- 120.
Rieder (2005), p. 103, who asserts that: ‘If we consider the Schmidberger case we can imagine a situation where the company goes to the ECJ in order to achieve free movement of goods but the demonstrators go to the ECHR in order to preserve the right to demonstrate. Ultimately, at the end of the day one side is going to lose. Which court should prevail?’ The preliminary reference procedure would certainly try to prevent this situation from happening.
- 121.
Raba (2013), p. 566; Gragl, in the same line, argues of this provision and the explanations relating to it in the Explanatory Report have been written very generally and without details in order to maintain the EU law autonomy and not to serve as a hidden amendment to the EU Treaties (referring to Defrenne case). To this extent, Gragl basically argues that with this format it seems that the prescription of this mechanism has been left to the EU law. In this regard, referring to Lock, Gragl proposes that the internal accommodation of the prior involvement mechanism in EU law should be addressed with a secondary law instrument (Council decision concluding the DAA) rather than with primary law revisions. See: Gragl (2013), p. 239–240.
- 122.
Consider in light of Court of Justice of EU, Opinion 1/09 (Creation of a unified patent litigation system—European and Community Patents Court—Compatibility of the draft agreement with the Treaties), 8 March 2011, para 66.
- 123.
- 124.
See e.g. ECtHR, Slivenko v.Latvia, Application No. 48321/99, judgment of 9 Oct. 2003, para 105.
- 125.
Accord: ‘Every internationally wrongful act of an international organization entails the international responsibility of that organization.’ Art. 3 Draft Articles on the Responsibility of International Organizations; On the treaty obligation of EU to be bound to concluded international agreements, see: Odermatt (2014), p. 12; On how the Court made it clear in Bosphorus that its decisions are obligatory on all convention parties, see: Phelps (2006), p. 269; Moreover, a very clear example is Judge v. Canada case of the Human Rights Committee, which ruled that ‘a treaty should be interpreted in good faith and in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’ (Human Rights Committee, Judge v. Canada, Communication No. 829/1998, final views of 20 October 2003 (CC PR/C/78/D/829/1998 (2003)), para. 10.4).
- 126.
Inter-American Court of Human Rights, The Sawhoyamaxa Indigenous Community v. Paraguay (judgment of 29 March 2006), Series C No. 146, para. 137 (the ‘Court has ascertained that the arguments put forth by the State to justify nonenforcement of the indigenous people’s property rights have not sufficed to release it from international responsibility.’).
- 127.
Baratta (2013), p. 1326.
- 128.
Thym (2013a), p. 3.
- 129.
Breuer (2013), p. 1.
- 130.
Perez (2014), p. 44.
- 131.
On the latter part of the argument, see also: Jacque (2011), p. 1021. Therefore clearly interfering to EU law autonomy, if that scenario appears in practice.
- 132.
Explanatory Report to the DAA, para. 65.
- 133.
Art. 3 (2) DAA [emphasis added].
- 134.
Explanatory Report to the DAA, para. 66/67; Cf.: Lock (2011), p. 30.
- 135.
ECtHR, Kokkelvisserij U.A. v Netherlands, Application no 13645/05, 20 January 2009, Part A, the Applicant’s Submission.
- 136.
See supra, the chapter on co-respondent mechanism; Accord: ECtHR, Kokkelvisserij U.A. v Netherlands, Application no 13645/05, 20 January 2009, Part A, the Applicant’s Submission, note 135, part on the ECtHR examination of the origin of the alleged violation.
- 137.
Cf.: Commission Working Document, DS 1930/10, Council of the European Union, FREMP meeting (Brussels, 10 January 2011) on the topic ‘Previous involvement of the Court of Justice in the context of the accession of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms’. Brussels, 22 December 2010, note 107, para 9; The argument presented there seems very unfounded and therefore may not be accepted as valid.
- 138.
Court of Justice of EU, Gerritse, C-234/01 [2003] ECR I-5933, paras 23–24.
- 139.
Cf.: Lock (2011), p. 30; See on the nature of the Strasbourg Court’s subsidiarity the Interlaken Declaration, High Level Conference on the Future of the European Court of Human Rights, 19 February 2010, note 110, part E, para. 9.
- 140.
Lock (2011), p. 24.
- 141.
Explanatory Report to the DAA, para. 65 et seq.
- 142.
Morano-Foadi and Andreadakis (2011), p. 609, as an example showing how the Luxembourg Court does in fact consider human rights even beyond the jurisprudence of the Strasbourg Court. In such a scenario, the prior involvement can really go beyond the Strasbourg standard, even before the case reaching the Strasbourg Court practically.
- 143.
Lock (2011), p. 25.
- 144.
Lock (2011), p. 25.
- 145.
Commission Working Document, DS 1930/10, Council of the European Union, FREMP meeting (Brussels, 10 January 2011) on the topic ‘Previous involvement of the Court of Justice in the context of the accession of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms’. Brussels, 22 December 2010, note 107, p. 3; Refer also to the para 11 of the Negotiation Directives of the Council of 4 June 2010.
- 146.
Commission Working Document, DS 1930/10, Council of the European Union, FREMP meeting (Brussels, 10 January 2011) on the topic ‘Previous involvement of the Court of Justice in the context of the accession of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms’. Brussels, 22 December 2010, note 107, p. 3; Referring to Council Declaration annexed to the Council Decision authorising the negotiation of DAT (annex 3); See also: Gragl (2013), p. 240, who proposes that such rules could be established with the Council’s decision concluding the DAA.
- 147.
Commission Working Document, DS 1930/10, Council of the European Union, FREMP meeting (Brussels, 10 January 2011) on the topic ‘Previous involvement of the Court of Justice in the context of the accession of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms’. Brussels, 22 December 2010, note 107, para 5; Cf.: Another option—instead of the prior involvement mechanism, and somewhat similar to the stages of the abovementioned proposal by the Commission’s working document—proposed by CJEU Judge Timmermans, according to Gragl, designates the Commission as the institution which may trigger the Luxembourg Court’s review in case it considers that the case before the Strasbourg Court implicates an EU legal basis. Upon the Commission triggering this procedure, the proceedings before the Strasbourg Court would be paused. If, in that scenario, the Luxembourg Court would find that the case at hand violates the human rights of the claimant, then the case before the Strasbourg Court should have been automatically dismissed. See: Gragl (2013), p. 241/2.
- 148.
Commission Working Document, DS 1930/10, Council of the European Union, FREMP meeting (Brussels, 10 January 2011) on the topic ‘Previous involvement of the Court of Justice in the context of the accession of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms’. Brussels, 22 December 2010, note 107, para 6.
- 149.
Lock (2011), p. 26.
- 150.
Lock (2011), p. 27.
- 151.
Art. 263 (2) TFEU.
- 152.
Cf.: One may rightly question why should the competence of the Commission to trigger the prior involvement be rooted in a treaty provision (or why should the treaties change to accommodate this mechanism). Four arguments denounce the latter and support the main-text reasons. First, to establish the Commission’s competence to trigger the prior involvement procedure, one has to amend Protocol 3 to the Treaties (Statute of the CJEU) to define the Commission’s authority under this procedure when it appears before the Court. The Protocol itself—although it may be changed through an ordinary legislative procedure for most of its parts—comprises a segment of the Treaties (primary law). Second, most importantly, one has to consider Art. 1 (3) DAA, which reads: ‘Nothing in the Convention or the protocols thereto shall require the European Union to perform an act or adopt a measure for which it has no competence under European Union law.’ In addition to this, Protocol 8 to the EU Treaties, amongst others, establishes that ‘accession agreement should ensure that accession does not affect the competences of the EU or the powers of its institutions, or the situation of the Member States in face of the Convention.’ This means not only accession agreement but also ‘accession’ at-large. The same has been reiterated in Opinion 2/13 where the Court noted several times that accession as such should not disturb the institutional balance of the EU or its Member States’ position in face of the Convention system. This said, one should argue that the prior involvement jurisdiction which the Luxembourg Court will be given with the DAA is rather different from the current jurisdiction which is possesses under the Treaties. Such new jurisdiction may not be described in another way but as a new jurisdiction to the Luxembourg Court. Moreover, the prior involvement jurisdiction will rather well reshape the position of the Commission in face of the Luxembourg Court with regard to the potential violations upon the Convention. This altogether means that the DAA is extending new competences and touching upon the already-existing treaty balances that exist in the EU institutional structure (including the CJEU). Such fact quire well affects the authorities of the EU institutions, something which the DAA and Protocol 8 explicitly prohibit. Third, not only the prior involvement procedure seems problematic in face of the treaty structures but also with regard to the Protocol 8 prohibition that the accession should not affect the situation of the Member States in face of the Convention. One basic fact, that needs consideration, is a scenario in which the Member State as respondent will be submitted for an alleged violation before the Strasbourg Court—a violation which the Member State committed by implementing an EU-law obligation that left no state discretion. Should in that scenario the EU Court invalidate (through the prior involvement mechanism) the legal basis that pushed the Member State to conduct that violation, that would still not change the victim status of the applicant and the status of respondent of the Member State in question. This scenario will basically produce a situation in which the respondent Member State may become liable before the Strasbourg Court for implementing an EU-law obligation which was invalidated by the EU Court, and does not even exist anymore. Such form of liability for the Member State for which it holds no original responsibility factually changes the position of the Member States in face of the Convention. These four arguments prove that there is a need to introduce primary law amendments to address these concerns.
- 153.
On the Commission as the guardian of the treaties, see e.g.: Von Bogdandy et al. (2012), p. 490.
- 154.
Especially if this role is considered under case: Court of Justice of EU, Star Fruit v Commission, Case 247/87 [1989] ECR 291; See also: Lock (2011), p. 27; Cf.: Gragl (2013), p. 242/3, who basically argues that it would be in the Commission’s discretion to trigger or not the prior involvement of the EU Court: such decision of the Commission being based, amongst others, on the criterion of whether the same EU legal basis has been reviewed once by the Luxembourg Court for its legality. That would certainly, as argued supra, push the Commission to play a sort of filter function as well; Gragl in this regard argue that should the Commission refuse to trigger the prior involvement procedure, that would not be seen as interference to EU law autonomy, as the argument would be that the EU has no interest in that case to be considered first by the Luxembourg Court. In that scenario, the Strasbourg Court would decide without the Luxembourg’s decision. To this point, Gragl rightly argues that the Commission should not be obliged to trigger this mechanism, and that decision would be in line with the subsidiary character of the Convention system (Ibid, p. 243), although the Luxembourg’s Opinion 2/13 follows a different line of argument.
- 155.
See also: Court of Justice of EU, Commission v. Ireland, C-459/03, [2006] ECR-I 4635, para 123.
- 156.
Contra: Gragl sees no implication from accommodating the prior involvement mechanism in this legal basis, and therefore proposes that it would be in line with the current treaty prescriptions on this issue. See: Gragl (2013), p. 240. Although Gragl does not examine this in-depth, it seems even from a very superficial position hard to capture such argument as being valid.
- 157.
Commission’s Working Document DS 1930/10, Council of the European Union, FREMP meeting (Brussels, 10 January 2011) on the topic ‘Previous involvement of the Court of Justice in the context of the accession of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms’. Brussels, 22 December 2010, note 107, para. 8.
- 158.
A legitimate question raised by Gragl in this regard is the grounds of review which the Luxembourg Court may consider in relation to the prior involvement mechanism. Gragl basically argues that the Luxembourg Court would not need to be limited merely to the fundamental rights’ ground of review, or to the grounds proposed by the Commission with the decision to trigger the prior involvement mechanism, but may go beyond the grounds raised by the Commission and decide on its own right on the scope of review that it wishes to undertake on the EU act concerned. Gragl bases this argument also in the practice of preliminary reference questions—e.g. Finanzamt Kassel v. Viessmann—wherein the Luxembourg Court has ruled that it may reformulate or even go beyond the questions posed by the national courts, by recognizing to itself the right to delimit the scope of review. See: Gragl (2013), p. 249–251.
- 159.
Explanatory Report to the DAA, para. 67; Cf.: Gragl (2013), p. 246/7, who makes an interesting question and argument, by asking whether providing to the Commission a ‘comprehensive competence to request the CJEU to review legislation on regular basis (regardless of the concrete circumstances with respect to the applicant’s standing) would modify the functional nature of CJEU proceedings’ and therefore interfere to the EU law autonomy? In connection to this argument, I would not agree with its general line of reasoning, as the Commission currently possesses the same competence with regard to the action for annulment. However, more problematic than this, I would say—something Gragl does not mention at all—is the question of whether bringing the Commission to the position of an institution which—based in the circumstances of the case before the Strasbourg Court—becomes a player in the process of validation of interpretation of rights and law on which a judicial case is based and depended from. This aspect would be far more problematic, even within the context of the right to fair trial and independent judicial proceedings, and certainly leads to the conclusion that with this new role, the primary law function of CJEU and its proceedings may see substantive change.
- 160.
Art. 3 (6) DAA; See also: O’Meara (2011), p. 1825; Undue delay, in this regard, should also be considered within the context of the extra-length of proceedings if one sees the period from the moment the claimant files the application to the Strasbourg Court until it reaches the final decision of the latter. This may seriously harm the right to efficient access to the Court. For the latter part of the argument, see e.g.: Rieder (2005), p. 105; On the latter, see also: Wetzel (2003), p. 2849; See also: Gragl (2013), p. 243.
- 161.
- 162.
Craig (2013), p. 1131.
- 163.
O’Meara (2011), p. 1826.
- 164.
See generally also: Groussot et al. (2011), p. 15; Cf.: Gragl (2013), p. 247, who—referring to Tulkens—argues that the prior involvement mechanism will ‘unquestionably’ exceed the normal timeline which an application follows to become processed before the Strasbourg Court, therefore complicating the position of the applicant in an ‘unacceptable manner’.
- 165.
One must say that the overall delay within the Luxembourg Court’s review may per se constitute a violation of Art. 6 and 13 ECHR, not only in this type of procedure but also in all others. See e.g.: Balfour (2007), p. 222; On the latter, see also: AIRE Centre et al. (2013), p. 4; On this delay, see also: Wetzel (2003), p. 2851.
- 166.
Gragl argues that with the accelerated procedure which the Luxembourg Court may use—the so-called PPU procedure—to address a prior involvement request, it will take 6–8 months to deliver a ruling on the prior-involvement issue. See: Gragl (2013), p. 247. This means that an application before Strasbourg Court who was made part of the prior involvement procedure will consume at least 6 more months to become adjudicated.
- 167.
Cf.: Lock (2011), p. 29; Cf. also with: Court of Justice of EU, Rules of Procedure Art 104 a and 104 b; See also on a similar argument: Gragl (2013), p. 244, who argues that the time-limit within the EU legal order is something that will be observed strictly by the EU Court, and a case may become certainly inadmissible before it (TWD case of CJEU being an example for cases involving individual decisions subject to an action before the latter), which would then open spaces for interference to the EU law autonomy.
- 168.
Gragl (2013), p. 247; Although (Ibid, p. 248), Gragl argues that if this procedure is located under the CJEU’s accelerated procedure in accordance with Art. 23a to the CJEU Statute that would not amount to interference to the EU law autonomy. I would fully agree with this point from a general perspective, although, according to Gragl, such accelerated procedure may be utilized only in cases of ‘exceptional urgency’, which may not still be the case in view of the prior involvement procedure. This being the case, it would be more certain to argue that the ‘undue delay’ will certainly have a cost for the EU law autonomy.
- 169.
Court of Justice of EU, Alitalia v Commission, Case T-296/97 [2000] ECR II-3871, para. 61.
- 170.
Court of Justice of EU, Olsen v Commission, Case T-17/02 [2005] ECR II-2031, para. 74.
- 171.
Lock (2011), p. 28; See also: Court of Justice of EU, Textilwerke Deggendorf, Case C-188/92 [1994] ECR I-833, para. 13 et seq.
- 172.
- 173.
Court of Justice of EU, Atzeni and others, Joined Cases C-346/03 and 529/03 [2006] ECR I-1875, para. 30 et seq.
- 174.
- 175.
On the ‘fruitful’ cooperation that must exist under the preliminary reference procedure, see: Dauses (1986), p. 577; Cf.: However, Gragl and Lock rightly point out that if the prior involvement undue delay principle would push the Luxembourg Court to relax the time limits on the current actions, that would qualify as interference to the EU law autonomy. The case-law of the Luxembourg Court, Gragl and Lock argue, speaks for a rigid application of the principle of legal certainty on the existing time-limits as well. See: Gragl (2013), p. 244.
- 176.
See also: Lock (2011), p. 31; See also Court of Justice of EU, Roquette Frères SA, Case C-94/00, [2002] ECR I-9039, para 29, where the CJEU changes the context under which it judged the case in the first instance; this showing an example on how prior involvement could be used by the Luxembourg Court itself to change its own position on certain issues of EU law.
- 177.
See a similar explanation to the preliminary reference procedure, at: Vink et al. (2009), p. 4.
- 178.
Cf.: in a similar approach of EU Court: Court of Justice of EU, Da Costa, Joined Cases 28-30/62, 1963 E.C.R. 31.
- 179.
On the latter, see: Jacque (2011), p. 1022.
- 180.
On the question of the scope of effect deriving from this supposed procedure, see: Dauses (1986), p. 574, wherein it is suggested that the EU Court does usually try to keep a narrow scope of effect of the decisions it takes under the preliminary reference procedure, silently omitting from giving an erga omnes effect to such decisions. It is suggested that the same narrow scope of legal effect might be followed in the prior involvement procedure before the EU Court as well.
- 181.
An example innovatively mirrored from: Jacque (2011), p. 1005–1007.
- 182.
On the latter part of the argument, see: O’Meara (2011), p. 1827.
- 183.
Cf.: Lock (2011), p. 31.
- 184.
Cf.: for a general note on this: Baratta (2013), p. 1315.
- 185.
If one would have been based in the principle of ICJ’s La Grand, then the EU Court should have been considered as capable of offering to the applicant a remedy to his/her victim status as well. In La Grand, ICJ has ruled that ‘where jurisdiction exists over a dispute on a particular matter, no separate basis for jurisdiction is required by the Court to consider the remedies a party has requested for the breach of the obligation.’ International Court of Justice, Germany v United States of America (LaGrand), Merits, Judgment, 2001, para 48 (available at icj-cij.org/icjwww/idocket/igus/igusframe.htm). It follows clearly from this logic—if applied upon the prior involvement mechanism—that the EU Court should be considered as competent in intervening and changing the legal situation of the applicant affected by its decision on basis of the prior involvement procedure.
- 186.
Permanent Court of International Justice, Factory at Chorzów, Judgment No. 13, 13 September 1928, Series A, No. 17, p. 47.
- 187.
Art. 3 (6) DAA.
- 188.
Cf.: AIRE Centre et al. (2013), p. 4, promoting the idea that claimant appearing before Strasbourg Court—in case the prior involvement mechanism is utilized—should be given the chance to be heard before Luxembourg Court as well (including a package of legal aid, due to the fact that they become represented twice in a single process before two courts).
- 189.
Cf.: Lock (2012), p. 185, arguing that ‘[t]he wording of Article 6(2) TEU does not suggest that it also grants competence to the EU’s institutions to create a new procedure for the prior involvement of the ECJ.’ This may not be taken for granted, however, as the EU Treaties may not have prohibited that competence while simultaneously asking that the DAA uphold the EU peculiarities, one of such core peculiarities being preserved merely with the prior involvement mechanism’.
- 190.
Cf.: Commission’s Working Document DS 1930/10, Council of the European Union, FREMP meeting (Brussels, 10 January 2011) on the topic ‘Previous involvement of the Court of Justice in the context of the accession of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms’. Brussels, 22 December 2010, note 107, para. 10; Cf.: also: Lock (2011), p. 28 et seq, for the logic on how to receive the idea and legal nature of the prior involvement mechanism.
- 191.
Emphasis added.
- 192.
Contra.: AIRE Centre et al. (2013), p. 2 (‘It does not appear that such a ruling would have any consequences for the applicant’s case, so as to provide an effective remedy in accordance with Article 13 ECHR.’).
- 193.
For a note on this argument, Cf.: Baratta (2013), p. 1327.
- 194.
On external autonomy, see: Wessel and Blockmans (2013), p. 1; See also: Court of Justice of EU, Opinion 1/91 (1991) ECR I-6079, paras 12–13; See the newest approach on the external autonomy, at: Court of Justice of EU, Kadi and Al Barakaat v. Council and Commission, Joined Cases C-402/05 P and C-415/05 P [2008] ECR I-6351.
- 195.
Cf. Court of Justice of EU, Commission v. Ireland, C-459/03, [2006] ECR-I 4635, para 123.
- 196.
Jacque (2011), p. 1022.
- 197.
See an example on the application of restitutio in integrum in international jurisdictions, at: Inter-American Court of Human Rights, Aloeboetoe et al. v. Suriname, Judgment of September 10, 1993, (Ser. C) No. 15 (1994), para. 96.
- 198.
ICJ’s Judge Gaja, for example, argues that in order for the prior involvement mechanism to function it may need to be accommodated to the EU Treaties through an amendment to the latter. See: Gaja (2013), p. 4; Cf.: Gragl maintains that the mere idea of introducing the prior involvement mechanism through the DAA interferes to the EU law autonomy as it basically introduces a hidden amendment to the EU Treaties. See: Gragl (2013), p. 237.
- 199.
The same question remains unsolved at: Conforti (2010), p. 84; Cf.: Lock (2012), p. 184/5, who argues that there may be no way to affect the powers of the institutions set forth in the Treaties, something which does not contradict this book’s argument; See also: Ritleng (2012), which seems putting doubts on whether the prior involvement mechanism will work without treaty amendments.
- 200.
Baratta (2013), p. 1329, referring to: Opinion 1/92, paras. 32 and 41 & Opinion 1/00, paras. 20 and 21.
- 201.
Cf.: Lock (2011), p. 22.
- 202.
Baratta (2013), p. 1330.
- 203.
Compare this notion with the arguments presented in: Eckes (2012).
- 204.
This contestation has also been questioned at: Conforti (2010), p. 84.
- 205.
And clearly not amounting to something that would diminish the standard set in: Court of Justice of EU, Costa v ENEL, Case 6/64 [1964] ECR 585, at 601.
- 206.
Which according to the author stands also in line with the: Court of Justice of EU, Commission v. Ireland (Mox Plant case), Case C-459/03 [2006] ECR I-4635, para. 123.
- 207.
E.g.: Abbott and Snidal (2000).
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Korenica, F. (2015). EU Prior-Involvement Review. In: The EU Accession to the ECHR. Springer, Cham. https://doi.org/10.1007/978-3-319-21759-8_8
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