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«L.L.M. Master Thesis Supervisor: Prof. Samantha Besson L.L.M. “Law in an European and Global Context” Universidade Católica Portuguesa Católica ...»

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“A Time to Change or a False Opportunity?Accession to the

European Convention on Human Rights and the Locus Standi

Problem in the European Union”

Martinho Lucas Pires

Student number: 142712156

L.L.M. Master Thesis


Prof. Samantha Besson

L.L.M. “Law in an European and Global Context”

Universidade Católica Portuguesa

Católica Global School of Law


Table of Contents:

Introduction: Twenty-first century Europe

1. The ECHR and the EU

1.1 The relationship of the EU to the ECHR: from Hauer to the Charter

1.2 The relationship of the ECHR to the EU: under the hand of Bosphorus

2. Accession of the EU to the ECHR

2.1 Problems and complexities

2.2 The legal problems of accession

a) The respondent mechanism

b) The preliminary ruling mechanism and prior involvement procedure

c) Review of EU primary law

d) The second pillar

2.3 The end of Bosphorus

3. Access to justice in the ECHR

3.1 From “right to a fair trial” to access to justice in the Golder case

3.2 The right of access and the margin of appreciation

4. The problem of locus standi in EU courts

4.1 Notion of the problem: Article 263

4.2 The interpretation of the court and its evolution: from Plaumann to UPA

a) Type of act

b) Direct concern

c) Individual concern

4.3 Extramet and Codorniu: the revolution that was not

4.4 The UPA case and the final word of the CJEU

4.4 Critiques to the locus standi problem

5. Locus standi in the EU and the ECHR

5.1 The two paradigms: “very essence” and Bosphorus 2

5.2 Margin of appreciation and the very essence requirement

5.3 The bed that the ECtHR laid Conclusion: a never ending story?

Bibliography 3 Introduction: Twenty-first century Europe 1 In 1976 Eric Stein and Gregg Vinning wrote that the nature of the (then) European Economic Community (EEC) was “at the borderline between the federal and the international”, due to the expansive constitutional integration led up by the Court of Justice of the European Union (CJEU) and to its governance structure and decision-making processes which resembled more of a common international organization2. In fact, as the classic doctrine of European Union (EU) law has discussed, the process of establishing the European political project was a constitutional struggle between the judicial and the political, with the former taking up the lead from the latter3.The paradigm started to change in the end of the eighties. Since the Treaty of Maastricht that the political process has picked up the wheel of integration and directed the constitutional evolution of the project at an unprecedented speed. For example, there were three treaties signed between 1992 and 2013 (Amsterdam, Nice and Lisbon). The EU adopted a single currency, the euro, which is nowadays used by eighteen Member States. Also, the EU more than doubled its members since Maastricht, being now composed of twenty-eight countries. These events prove how fast did the Union change during the past twenty years. It is is true that this constitutional momentum had some backlash, most notably with the failure of the Constitutional Treaty in the beginning of the new century. But even this project was rescued and re-cast as the Treaty of Lisbon, in 2007. Political support for the project has been steadily renovated by heads of state, and enlargement processes continue.

It is even difficult to predict when will this evolution stop. The current financial crisis has showed many deficiencies of the project, and the necessity for closer integration. There have been talks of a banking union and stricter financial supervision. Discussions concerning new forms of 1 Thank you to Samantha Besson for being the supervisor of this work; for all the comments, feedback and thoughtful insights made during this process, and for all the support given. Thank you to Daniel Halberstam, Donald Reagan and Virginia Gordan for receiving me at Michigan Law School as a Research Scholar, where the majority of this work was thought and idealized. Thank you to Samo and Maria Bardustky, Julian Lehmann, Appoline Roger, Alejandro Perera and Elaine Fahey for all the comments and helpful discussions (and, most important of all: library company) in Ann Arbor; and to Valerio Signore, Alessandro Pozzi, Federico Satanino and Silvyo Guzelbahar for the same, in Brussels.

Thank you to my family, friends, and girlfriend for all the support and patience given throughout this period, with a very special regard to my mother Maria Teresa. Last but not the least, thank you to Católica Global School of Law and Flávia Beja da Costa, Tânia Abreu Godinho, Luís Barreto Xavier and Gonçalo Almeida Ribeiro for all their help, and incentive.

During the final stages of work for this thesis, assistant professor Patrícia Martins of Universidade Católica Portuguesa successfully defended her PHD thesis entitled Rethinking Access by Private Parties to the Court of Justice of the European Union (2013). The dissertation discussed several of the same topics as the present work. The author was present at the arguings, but unfortunetately was not able to read the dissertation until the delivery of this thesis.

2Eric Stein and Gregg Vinning, “Citizen Access to Judicial Review of Administrative Action in a Transnational and Federal Context” American Journal of International Law, 70, 1976, pp. 222 3 See for all Joseph H.H. Weiler, “The Transformation of Europe” Yale Law Journal Volume 100, 1990-1991 4 political governance have also emerged consistently over the last two years, in order to strengthen certain deficiencies of the project 4.

Another point which represents this steep evolution, and one which clearly marks a shift to the federal side, is the new human rights paradigm of the Union. The fundamental rights policy created by the CJEU since the Stauder case has also been constitutionalized. The EU has now an extensive and ambitious catalogue of rights protected in its Charter of Fundamental Rights.

Moreover, another important step has been taken with the eminent accession of the Union to the European Convention on Human Rights (ECHR). This process, discussed for many years, received an impressive political support with Lisbon and the constitutionalization of the duty to accede.

Discussions are still underway, with some problems awaiting to be solved, but it seems that the process will have a positive ending. The Union will then be another member of the Convention, another contracting “State”, an event which fuels hopes for an even greater scrutiny of its institutions in face of individuals.

In sum, this has been the originality of the European project, to transform itself into a hybrid political form that, although resembling an international organization, has powers that go well beyond just that. However, it is also its main focus of frustration, since albeit being fairly integrated, it still shows several structural deficiencies. Some of these deficiencies are fundamental — the lack of a financial governance structure prepared to deal with deficit imbalances inside the federal system is the first to come to mind, nowadays — and risk to undermine in the long run the successes already achieved. One of these problems is the limited standing granted to individuals when challenging EU acts in front of the EU’s courts. The restrictive approach laid down by the CJEU in 1965 in Plaumann, concerning the interpretation of the criteria of individual concern remains practically still valid nowadays. This is a quarrel that has existed since the beginning stages of the EU’s history and has never been fully solved, much to the annoyance of private plaintiffs and academic commentators who believe there is a denial of access to justice being perpetuated.

Some authors like Francis Jacobs, former Advocate General (AG) of the CJEU and one of the most devoted critics of the ECJ’s long-standing interpretation of locus standi provisions, believes that accession to the ECHR will be an opportunity to solve this problem5. This is a legitimate belief. In fact, by being for the first time under the judicial control of an external entity, 4 For example, Bruce Ackerman and Miguel Poiares Maduro, “How to make a European constitution for the 21st century”, Wednesday 3 October 2012 12.38 http://www.theguardian.com/commentisfree/2012/oct/03/europeanconstitution-21st-century 5Francis Jacobs, "The Lisbon Treaty and the Court of Justice", EU Law After Lisbon, Edited by Andrea Biondi, Piet Eeckhout and Stefanie Ripley; Oxford, New York: Oxford University Press, 2012, pp. 206 5 there will be more pressure in the EU to comply with fundamental rights. The ECtHR could very well find a violation of right of access to court in the EU. However, there have been no studies considering this chance, and to concretely assess what could be the impact of accession in solving this problem specifically. Although it is true that the Convention protects the right of access to justice, it also accepts certain restrictions on its adjudication by contracting states. More so, before the period of accession, the ECtHR had already the opportunity to express its opinion regarding the judicial system of the EU. These issues show that the proponents of a more-relaxed locus standi rules in the EU will still face several hurdles when discussing their claim in Strasbourg. The purpose of this thesis is, by looking at the history of relations between the ECHR and the EU and of both the right of access to court in the case-law of the ECtHR and to the locus standi problem in the case-law of the ECJ, to see how this issue could be solved if a claim arrived to the ECtHR after accession.

This work is divided in five parts. In the first one we will look at the relationship between the ECHR and the EU, and see how the Convention became an integral part of the EU’s legal system, first through the case-law and then by the Treaties. We will also see how the ECtHR has dealt with problems concerning the EU and the Convention in its case-law. In the second part we will look at the accession process, its impact and the difficulties arising from it. In the third part we will look at how the ECtHR has protected the right of access to court. We will see how the Strasbourg court has stated the emanation of the right from article 6(1) of the Convention and how it has interpreted its magnitude. We will see that, like most rights of the Convention, the right of access to court is not an absolute one and allows for certain limitations, albeit inside certain limits.

In the fourth part of this work we will shift to the EU and look at the locus standi problem, both into its historical progress and to its critical perspective. Finally, in the fifth and final part, we will look at how the restrictive approach to locus standi rules could be discussed in front of the ECtHR. We will base ourselves in the findings of the second and third parts of the thesis to elaborate certain points of discussion and their possibility of success. We will finish by giving our assessment on the impact of accession to locus standi in the EU: is it really a time for change, or just a false opportunity?

–  –  –

1.1 The relationship of the EU to the ECHR: from Hauer to the Charter The ECHR was adopted in 1950, as a symbol of a common commitment of European countries to protect fundamental rights6. It was signed five years after the end of the Second World War, in a time where several mechanisms that exalted a universal, humanitarian kantian-like project of individual protection at a global level — like the Universal Declaration of the Rights of Man, approved at the United Nations in 1948 — were also created. It appeared seven years before the EEC. Jean Paul Jacqué wrote that “the problem of relations between the ECHR and European Integration is almost as old as integration itself”7. In fact, there were discussions in the “travaux preparatoires” of the ad hoc assembly of the European Coal and Steel Community concerning the possible insertion of provisions of the Convention in what would be the Treaty of Rome8. These discussions were fruitless in the end, since the Treaty did not make one single mention to fundamental rights or the ECHR in its text.

However, it was only a matter of time before these two legal projects would interact, thanks to the action of the CJEU. The Luxembourg Court was faced with a series of cases in the sixties, starting with Stauder, that put the question of whether the EEC had a fundamental rights policy 9.

Since there was no mention of fundamental rights protection in the Treaty of Rome, the Court had to create this notion and justify where it came from. It first stated, in the Nold case, that the protection of fundamental rights in the EU emanated from “constitutional traditions common to the Member States”10. Then, in Hauer, the Court added to these traditions the principles of the Convention, stating that “international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law” like the “European Convention for 6For the history of the Convention see Ed Bates, The Evolution of the European Convention of Human Rights Oxford, New York: Oxford University Press, 2010 7 Jean Paul Jacqué, "The Accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms" Common Market Law Review, 48, 2011, pp. 995 8 Draft Treaty Embodying the Statute of the European Community in http://aei.pitt.edu/991/1/ political_union_draft_treaty_1.pdf, pp. 24 and 25; Jean Paul Jacqué, id, pp. 995.

9Gráinne De Búrca and Paul Craig EU Law: Text, Cases, and Materials (Fourth Edition) New York: Oxford University Press, 2011, pp. 364; Damian Chalmers, Gareth Davies and Giorgio Monti, European Union Law: Cases and Materials Cambridge: Cambridge University Press, 2010, pp. 233 10Case 4/73 J. Nold, Kohlen-und Baustoffgroßhandlung v. Commission of the European Communities, [1974] ECR 491 7 the Protection of Human Rights and Fundamental Freedoms of 4 November 1950”11. It made sense that if the Court was to insert its action in a common humanitarian “space”, it would need to refer to the most important symbol of the European commitment to fundamental rights, the “minimum” protection level accepted12.

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