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WG Independence-Efficiency > Meetings > Beaulieu-sur-mer 2010 > Subgroup 2 : Impacts of the EU Charter of Fundamental Rights on independence and procedural rules

Subgroup 2 : Impacts of the EU Charter of Fundamental Rights on independence and procedural rules

Chair : Klaus Lernhart, Germany

Members :
Stefan Rosenmayr, Austria
Heinrich Zens, Austria
Werner Heermann, Germany
Alexandra Papamanolis, Greece
Natalia Tamiolaki, Greece
Zita Kupce, Latvia
Jurgita Pauzaite-Kulvinskiene, Lithuania

Where not otherwise stated, the reported findings of the subgroup basically represent a common opinion of the members.

TOPICS the subgroup agreed to discuss were :

1. Scope of the Charter (ChFR)
a) according to Art. 51 ChFR
b) Relation to European Convention
c) Relation to ECJ case law
2. Consequences of Art. 47 ChFR for national court proceedings as to
a) ex officio investigation of facts and application of law
b) effective legal protection also in cases of administrative inactivity
3. Consequences of Art. 41 ChFR for administrative authorities and judicial control
4. Added value of the Charter in general ?

1. Scope of the Charter

a) according to Art 51 ChFR

„Article 51
Field of application

1.The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.“

The members unanimously held that the Charter is applicable

 on all acts of EU authorities

 in cases of direct application of (primary or secondary) EU law by member states ( MS) : According to its Art. 51 Para 1 the Charter is binding upon the MS „when they are implementing Union law“.

- in cases of application of national law exclusively dedicated to implement EU law (e.g. transposition of directives) : can be regarded as indirect application of EU law.

For other cases the members proposed distinguishing :

 if national law transposing a directive not only fulfils the obligations imposed on the MS by the directive but contains additional provisions, the same rules should apply as in the aforementioned case of indirect application of EU law, provided there is no reasonable distinguishing possible between provisions required by the directive and other ones (this may be the case e.g. as regards the amount of data to be delivered to security authorities before travelling to the United States)

 in cases where such a distinguishing seems possible, this should be taken into account also for the applicability of the Charter (example : Transposition of the EU directive on mediation, which actually requires national provisions only for cross border cases in the field of civil and commercial law, by a national law which regulates the application of mediation overall for all fields of jurisdiction)

 in other cases where national authorities act in a broader sense “within the field of EU law”, (e.g. when the application of national law interferes with primary or secondary EU law), the Charter may be applicable. Insofar the ECJ case law has carefully to be taken into consideration (principles of equivalence and effectiveness).

Example : Case Mangold (ECJ 22.11.2005 – C-144/04)

b) Relation to European Convention

 added value of the ChFR ? – Art. 52 Para 3 ChFR :

„In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.“

 the answer is yes, as the ChFR contains additional rights, e.g. in Art. 47 Para 2 : no restriction to civil rights like in Art. 6 Convention (e.g. the Russian criminal case Biryukov, ECHR 17.01.2008 – 14810/02 : obligation to pronounce not only the operative part of the court’s decision in a public oral hearing, but also the reasoning ; according to Art 47 Para 2 ChFR now generally applicable, i.e. in all administrative law cases)

 Question in the context of Art. 47 Para 2 ChFR as to the meaning of Art. 52 Para 3 Sentence 2 ChFR :

Could Art. 52 Para 3 Sentence 2 allow or even enforce more extensive protection in non civil or commercial cases than Art. 6 of the Convention in civil and commercial cases although Art. 52 Para 3 Sentence 1 ChFR stipulates the same meaning and scope for corresponding rights ? The answer remained open, but lead to another question :

 Quis custodiet custodes ? - Who has the last word (ECJ Luxembourg or ECHR Strasbourg) in cases of coincidence of ChFR and Convention rights, especially when the EU will have joined the Convention ? – Probably the ECHR, but “presumption of equivalence” doctrine of the ECHR is supposed to avoid or minimize conflicts.

c) Relation to existing ECJ case law

- added value of the ChFR ? – Yes, because the ECJ case law on fundamental rights - notwithstanding its advanced state of development - necessarily provides only pieces of an incomplete mosaic, whereas the Charter designs a whole picture.

- e.g. not yet decided by the ECJ : substantive deficit of secondary EU law in relation to primary EU law. The existence of the ChFR makes it more likely that the ECJ will face such problems in the future.

- pending case with the ECJ : Dublin II-Regulation on a preliminary question submitted by the UK Court of Appeal

problem : sufficient legal protection in asylum cases, when the presumed factual and legal treatment of asylum seekers in the respective MS falls short of the minimum EU legal standard
(temporary injunction of the German Federal Constitutional Court in favour of asylum seekers who after having entered the EU in Greece had arrived in Germany and should be sent back to Greece according to the Dublin II-Regulation)

2. Consequences of Art. 47 ChFR for national court proceedings

Article 47
Right to an effective remedy and to a fair trial

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.“

The discussion concentrated on how to fulfil the requirement of an effective remedy, meant as a guarantee of effective legal protection.

a) ex officio investigation of facts and application of law

 to be distinguished : the substantive demand of the plaintiff on one hand and the relevant facts and law on the other hand for deciding on the demand.

 The plaintiff alone is entitled to dispose of his/her demand, including the withdrawal of the lodged action.

 Only below that level, within the frame of the demand, the question arises what are in detail the requirements of an effective remedy.

- as to the applicable law : iura novit curia. More or less all members consider the court obliged to find and introduce the relevant law even if the parties did not submit the respective provisions.

 as to the facts : different practice in countries, no common tradition, in Germany constitutional principle to investigate facts, in Austria case law.

Criteria and preconditions for ex officio investigation of (from the court’s point of view) legally relevant facts :

 First of all, the administration has to produce complete files to enable the court to carry out an examination of the facts, including particularly the administrative proceedings.

 Complete files of the administrative proceedings have to be submitted to the court.
In Greece : This principle is accepted, but there are preliminary rulings necessary now and then to enforce the submission of the files.

 Right of the plaintiff/the parties to inspect the files, creating the opportunity to add factual aspects as well as to comment on the contents of the files.
(It may be regarded as a severe fault of a plaintiff’s lawyer if he/she omits to carefully inspect the files, thus depriving himself/herself of the chance to gain complete knowledge of the facts and to possibly detect deficits in the administrative proceedings and substantive deliberations, especially when administrative discretion is at stake.)

 The ex officio investigation might also be a question of fair trial – only the administration disposes of the background knowledge and the files of the challenged decision.

 But no unlimited obligation to investigate ex officio, especially as to facts from the sphere of the plaintiff (e.g. family relations, motivations for entering a country). At least insofar also the plaintiff has an obligation to contribute to fact finding.

(German Supreme Administrative Court : The judge shall not search for mistakes without being asked to do so, and he shall not answer questions nobody has an interest to be answered)

 Relevance of limited resources of the judiciary ? – This can be seen as a general problem :
What are the requirements of effective legal protection as regards the resources of manpower/womanpower and equipment as a minimum standard to enable the courts to fulfil their tasks at all ? (Example : Are these requirements still complied with if in a MS there are 500.000 pending cases, 70.000 new incoming cases a year, and only 500 judges ?) –

Questions in that context without definite answers of the subgroup members :

- is also independence affected if the minimum resources are not allocated by the state ? – The judge could have only one fatal choice : Either he/she tries to get rid of the masses of cases by neglecting the professional standards, or the decisions are delayed for incalculable time with the result of factual refusal of legal protection..

 could such a situation lead to infringement procedure before the ECJ ?

 different situation : delayed court decisions despite generally sufficient resources – German and Austrian cases before the ECHR ; consequence in Germany : draft law of a special remedy (complaint against the delay at the court dealing with the original lawsuit, and in case of too lengthy proceedings financial compensation of 100 EURO per month, jurisdiction insofar with second instance or supreme courts)

b) Effective protection of rights also in cases of administrative inactivity

 Problems arise particularly where the national law allows only quashing of administrative decisions.
In Greece it depends on the legal material at stake, how far the court is empowered to decide on the merits ; e.g. in pension or welfare cases medical opinions of special doctors are binding by law.

 Principally the courts should be entitled to decide on the merits in case of administrative inactivity, otherwise it could end up in refusal of legal protection, e.g. when the administration does not react adequately on a court ruling only declaring the inactivity illegal.

 It was discussed, but in the end denied that constitutional aspects as separation of powers could inhibit an extension of the courts’ power to deciding on the merits in cases of administrative inactivity (no strict separation of powers, but checks and balances).

 However (as in actions for quashing unfavourable administrative acts) a distinction is necessary between cases in which the administration has a strict obligation to act (e.g. driving or building permit or legally guaranteed welfare claims) and cases in which by law the administration is entitled to exercise discretion (e.g. granting subsidies, planning decisions). In the latter cases the court principally has to respect the administration’s discretion and scrutinizes the administrative decision only under legal aspects, not under those of expedience. Therefore if the court finds legal fault with the administration’s exercise of discretion, as a rule it will have to order the issuing of a new administrative act in compliance with the court’s legal opinion.

 Subsequent problems arise as to the enforcement of a court decision in case the administration does not comply with it :
The possibility of enforcement of court decisions is not directly following from the ChFR, but the charter may require that enforcement regulations are provided for in national law. The instruments of enforcement may be manifold, from threatening and sentencing fines against an administrative authority or its head to the appointment of a commissioner or as a last resort to even the release of a (legally bound) decision by the court itself.

(Example from Germany : Judgement of Administrative Court Stuttgart obliging inactive administrative authority to issue an air pollution control plan ; after the issuing of such a plan court ruling -on a respective motion of the plaintiff- for enforcement of the judgement because the issued plan - notwithstanding a certain degree of administrative discretion - did not yet meet all requirements of the legal framework)

 If court decisions are neglected by the administration frequently, this certainly indicates a disturbed relationship between the executive and the judicial power and a lack of respect towards the judiciary. The reasons are probably to be found in society, also in inappropriate exaggerated criticism of court decisions regarded as inconvenient by politicians.

3. Consequences of Art. 41 ChFR for administrative authorities and judicial control

„Article 41
Right to good administration

1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.
2. This right includes :
(a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken ;
(b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy ;
(c) the obligation of the administration to give reasons for its decisions.
3. Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.
4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.“

- The provisions are binding on administrative authorities on one hand and relevant for courts as a scale for assessing the legality of administrative proceedings on the other hand.

 In some countries the provisions of Art. 41 ChFR are likewise already enshrined in national procedural laws (e.g. Greece), in others they are taken into consideration when the existing national law appears to be incomplete in that field (e.g. Lithuania), and respective case law is being developed.

 Art. 41 Para 4 ChFR is addressed only to EU authorities, but may enhance similar administrative practice in MS.

4. Added value of the Charter in general ?

Yes, because

  •  the public notion and awareness of the rights will be promoted, even if they partially have been recognised before in ECJ case law ;
  •  the Charter will induce the development of written or case law in MS, particularly where procedural law is missing or incomplete ;
  •  the Charter will contribute to a harmonisation of national procedural laws among MS.