BACKGROUND TO THIS STUDY

TWO SUPRANATIONAL COURTS IN EUROPE DECIDING ON FUNDAMENTAL RIGHTS CASES

In today ‘ s pluralistic European legal order there are two supranational courts that both interpret the scope and the meaning of fundamental rights. Fundamental rights are a set of individuals rights and freedoms which, for example, include the right to life and freedom of expression, and can also be found in national constitutions. At the supranational level, the European Court of Human Rights (ECtHR) firstly plays an important role in interpreting the fundamental rights set out in the European Convention on Human Rights (ECHR or ‘ the Convention ‘). The ECtHR (and its predecessor, the European Commission of Human Rights), entered the scene in the 1950s, allowing individuals, as well as states, to bring claims regarding violations of the mainly civil and political rights of the Convention. From that moment on, the ECtHR has delivered judgments in a wide range of cases where fundamental rights were allegedly interfered with, and in those judgments it has fleshed out the meaning and scope of the rights laid down in the Convention. The ECtHR has also played an important part in the development of fundamental rights doctrines. The case-law of this Court has generated important effects on the way in which fundamental rights are protected at the national level. The states parties inter alia have had to make legislative changes in response to specific judgments of the ECtHR on individual cases. Today, the detailed case-law of the ECtHR and its fundamental rights doctrines are therefore of interest for various areas of law.

On the same European continent, albeit in respect of fewer states, the Court of Justice of the European Union (ECJ), now also plays a role in the protection of fundamental rights. The ECJ interprets and safeguards the correct application of the law of the European Union (EU). Its primary aim is not to ensure respect for fundamental rights, since it was established for different reasons. It was set up to focus on an economic type of integration between the European states. It has become clear, however, that actions taken by EU institutions and EU member states under EU law can affect the protection of fundamental rights.

INTRODUCTION

The limited competences of the EU are oft en mentioned as a problematic issue in relation to its obligation to protect fundamental rights. The limits related to the competences of the EU are addressed at different places in the Charter, the explanations to the Charter, the EU Treaties as well as in the context of the accession to the Convention, and in the discussions related thereto. The EU does not have a general competence to take action to protect fundamental rights, so how can positive obligations which may require legislative, administrative or judicial measures to be fulfilled actually be accommodated within the context of EU law? Would the ECJ, first, be expanding the competences of the EU institutions if it were to impose positive obligations on them to ensure the protection of fundamental rights in the implementation of certain policy fields of EU law? Secondly, would the ECJ (always) be interfering in the competences of the member states, if it were to impose obligations on them to take additional measures to ensure that fundamental rights are protected within the scope of EU law? Thirdly, would the ECJ leave gaps in the protection of fundamental rights if it decided that there was no scope to accept positive obligations on the basis of the limited competences of the EU? To gauge the potential for the development of positive obligations by the ECJ, the issue of competences is clearly important. This chapter examines whether and within what limits the definition of negative or positive obligations can be reconciled with the principle of limited EU competences. To answer this question, this chapter will address the inherently complicated relationship between the EU ‘ s limited competences and its obligation to protect fundamental rights.

As this chapter will show, this thesis takes the principle of attributed powers of the EU as the main starting point for determining the extent to which positive obligations can be incorporated into EU law. An important reason for this is the clear emphasis which has been placed on the principle of limited competences within the context of fundamental rights protection by the EU in various legal provisions and documents.

INTRODUCTION

The concept of positive obligations has become a familiar concept in the case-law of the ECtHR. In its judgments the ECtHR reconfirms and refines particular positive obligations which it has established in the past and also continues to develop new obligations. Nevertheless, the concept of positive obligations and the Court ‘ s case-law on positive obligations have remained controversial. Various points of criticism have been expressed by scholars, as well as by judges of the ECtHR. This chapter discusses that there is a certain amount of controversy over the very idea of inferring positive obligations from fundamental rights (section 4.2.). The Convention in particular is considered to leave no room for the implication of such obligations. Further, there are some who are critical of the far-reaching effects that positive obligations impose on relations between individuals (section 4.3.). Others find that the ECtHR, by determining the content of positive obligations, has entered the forbidden field of political decisionmaking, or that it has unduly created socio-economic obligations which had been deliberately excluded from the scope of the Convention by its draft ers (section 4.4.). Also, the supranational position of the ECtHR is considered to be problematic in that respect (section 4.5.). The positive obligations doctrine continues to be considered unpredictable and incoherent and it has been criticised for its lack of well-defined limits (section 4.6.). Lastly, the methodological choices which the ECtHR has made in the development and application of positive obligations have met with considerable disapproval (section 4.7.). These critiques of the positive obligations doctrine need to be discussed, as they would need to be evaluated and taken into account if the ECJ were to incorporate and develop a doctrine of positive obligations on its own. This chapter also considers, throughout the different sections, how such criticism can be dealt with. The main points of attention for developing a doctrine of positive obligations are brought together in the conclusions (section 4.8.).

ARE POSITIVE OBLIGATIONS INHERENT IN FUNDAMENTAL RIGHTS PROTECTION?

There are three types of criticism which have been expressed with respect to the Court ‘ s view that positive obligations are inherent to fundamental rights.

INTRODUCTION

This chapter aims to define the meaning of the concept of positive obligations and its implications for the Convention system. A clear basis of the concept of positive obligations is needed so that it can be applied and further examined within the specific context of EU law (see part II). Scholars such as Mowbray, Xenos and, most recently, Lavrysen have undertaken important studies on the development of positive obligations by the ECtHR, which will be relied on in this chapter. These studies also show that there continues to be discussion on some aspects of the development of positive obligations by the ECtHR. Therefore, a further study of the case-law of the ECtHR itself is also undertaken here in order to discover how the ECtHR specifically understands and defines the concept of positive obligations.

This chapter begins by describing how the ECtHR introduced the concept of positive obligations in its case-law (section 3.2.1.). It then looks at how the ECtHR defines positive obligations (section 3.2.2.); how the distinction between positive and negative obligations is made (section 3.2.3.); the general rationale expressed for recognising positive obligations (section 3.2.4.); which explicit legal bases are used (section 3.2.5.); and the methodology applied by the ECtHR in order to determine the existence of positive obligations under the Convention (section 3.2.6.). The first part of this analysis is followed by an overview of several typologies of positive obligations that can be made (section 3.3.), and a discussion of the implications of the recognition of the different kinds of positive obligations, both for states and for individuals (section 3.4.). Thereaft er, important limitations on the scope of positive obligations that can be found in the case-law of the ECtHR are highlighted (section 3.5.). A few main observations on the concept of positive obligations are brought together in the conclusions (section 3.6.).

THE DEVELOPMENT OF POSITIVE OBLIGATIONS BY THE ECtHR

THE BELGIAN LINGUISTIC CASE: INTRODUCING POSITIVE OBLIGATIONS

The ECtHR introduced the concept of positive obligations for the first time in the Belgian Linguistic case in 1968, which was only its sixth judgment. In this judgment, the ECtHR provided important reasoning on how the concept of positive obligations was to be understood within the context of the Convention, and it is therefore dealt with here in detail.

INTRODUCTION

This chapter will explore further to what extent a development of positive obligations by the ECJ can be expected on the basis of its institutional position and its particular judicial culture. The ECJ has quite a different institutional position compared to the ECtHR, at least in some respects, and it also has a rather different judicial culture. There is a great complexity of factors which the ECJ must take into account and different ‘ audiences ‘ to which the ECJ must listen that can pull it in different directions. These factors can have an impact on the potential for a development of positive obligations by this particular court.

This chapter starts offby discussing two specific judgments of the ECJ (section 7.2.). In one of these judgments, the ECJ decided not to recognise a positive obligation to protect a fundamental right (the case of Bostock); while in the other case, it did impose a positive obligation on the member states (the case of Chatzi). Both of these cases have been heavily criticised. It has been held that the ECJ did too little in the first case and too much in the second case. These are two types of criticism the ECJ may easily incur. The aim of this chapter is to place such judgments in the perspective of the different roles and judicial styles that the ECJ may adopt, and to examine whether and how the ECJ could respond to the arguments of its critics. Aft er discussing the judgments of the ECJ in the cases of Bostock and Chatzi, and the criticism which these judgments have incurred, various specific factors relating to the judicial style as well as the institutional position of the ECJ are discussed that could explain its approach in these, as well as other judgments. These factors include the role and judicial style of the ECJ in general (section 7.3.); the procedures that are used to bring fundamental rights cases before the ECJ (section 7.4.); the institutional position of the ECJ vis- a -vis the EU institutions and the member states (section 7.5.); as well as the specific role played by the EU and the ECJ in the field of fundamental rights (section 7.6.).

THE MAIN FEATURES RELATING TO THE DEVELOPMENT OF POSITIVE OBLIGATIONS BY THE ECtHR

This chapter aims to bring together the conclusions of part I of this study, regarding the concept of positive obligations within the context of the Convention. This chapter focuses on some of the topics that will be especially relevant for part II of this study, which examines whether a similar development of positive obligations can take place within the EU ‘ s system of fundamental rights protection. Keeping that objective in mind, it is especially important here to formulate some conclusions regarding the definition of the concept of positive obligations in combination with the distinction that applies between positive and negative obligations (section 5.2.), as well as regarding the different types of positive obligations that can be identified in the case-law of the ECtHR (section 5.3.). The rationales used by the ECtHR for accepting the different types of positive obligations together with the possible effects of positive obligations are explained (section 5.4.). The main points of criticism related to this development are discussed (section 5.5.) and, lastly, some final remarks are provided with respect to the analysis presented in part II (section 5.6.).

THE DEFINITION OF POSITIVE OBLIGATIONS AND THE DISTINCTION BETWEEN POSITIVE AND NEGATIVE OBLIGATIONS

The ECtHR broadly defines a positive obligation as a requirement for states to take active measures to protect fundamental rights. It also has been seen in the preceding chapters that the ECtHR oft en applies the term ‘ positive obligations ‘ in its judgments to indicate the obligations that states must fulfil to ensure the protection of a fundamental right within the relations between individual parties, and in its own relations with individuals. To some extent, it appears to be difficult to arrive at a more clear and helpful definition of the concept of positive obligations. The definition necessarily needs to be broad to cover the different types of positive obligations which are recognised by the ECtHR (see section 5.3.).

INCORPORATING POSITIVE OBLIGATIONS TO PROTECT FUNDAMENTAL RIGHTS IN EU LAW?

The main purpose of this study was to establish whether there is scope for recognition of a concept of positive obligations to protect fundamental rights under EU law and, if so, in what manner the ECJ could develop a doctrine of positive obligations in its case-law. To find answers to these questions, this study, first, has drawn inspiration from the case-law of the ECtHR. Part I of this study has explained in what way states can incur positive obligations to protect fundamental rights under the Convention, and what the effects are of the recognition of such positive obligations by the ECtHR. In addition, part I has dealt with the criticisms related to this development. It has inter alia explained that states ‘ obligations in relation to the protection of fundamental rights have been expanded on the basis of the recognition of positive obligations; these obligations may require burdensome measures to be taken by states; the development of positive obligations creates a certain amount of legal uncertainty; and the establishment of positive obligations by the ECtHR may come close to political decision-making. These types of criticism have (partially) been overcome by the principles that have been established by the ECtHR in its case-law. The ECtHR has explained that positive obligations form part of the effective protection of fundamental rights, and that states nowadays have the power to influence the enjoyment of individual ‘ s fundamental rights. The ECtHR also recognises that states are given discretion when choosing the measures to provide protection, and that certain limits apply to the scope for positive obligations under the Convention. These principles, as well as their more specific elaborations, have been held to be of special interest if the ECJ were to recognise similar kinds of positive obligations.

Part II of this study has explored the system of EU fundamental rights protection and some of its specific limitations, in order to find out whether, and to what extent, this allows for a similar development of positive obligations to take place. Specific attention was paid to the ECJ ‘ s own institutional characteristics and its judicial culture; to the issue of the limited competences of the EU; and to the limited scope of application of EU fundamental rights.

INTRODUCTION

This chapter aims to portray and further discuss the examples of positive obligations that are present in the case-law of the ECJ. Some of these examples have already been addressed in the discussions in part II. Here, an overview is given of these and other examples of positive obligations so that some further insight can be given into the kinds of positive obligations that can be recognised within the context of EU law. In addition, a selection of five case are reviewed further and assessed in light of the conclusions reached in part II on the scope of, and the limits on, the development of positive obligations under EU law (see chapter 10). This analysis aims to establish whether (if at all) the development of positive obligations by the ECJ raises conflict with the specific principles of EU law.

The following section first briefly explains how the distinction between the concepts of positive and negative obligations can be made within the context of EU law and for what specific reasons it is relevant to make this distinction (section 11.2.). Aft er that, an overview of the different examples of positive obligations from the case-law of the ECJ is given (section 11.3.). On the basis of this overview, the types of positive obligations that can so far be recognised within the current case-law of the ECJ are identified (section 11.4.). A further examination is then made of some specific judgments of the ECJ to find out whether or not the ECJ has overstepped the specific limits of EU law, or whether the approach adopted is too restrictive (section 11.5.). The chapter is rounded up by a conclusion (section 11.6.).

THE DISTINCTION BETWEEN POSITIVE AND NEGATIVE OBLIGATIONS WITHIN THE CONTEXT OF EU LAW

The ECtHR also has contrasted the recognition of negative obligations which, more traditionally, follow from the protection of fundamental rights, with the recognition of positive obligations. The ECtHR in principle adopts a different approach when examining whether states have complied with their negative or positive fundamental rights obligations.

INTRODUCTION

The scope of application of EU fundamental rights is of great significance. It is of importance to determine at what point fundamental rights matters fall within the scope of Union law, because then the ECJ becomes competent to exercise judicial review and to set fundamental rights standards. This has implications for the powers that can be exercised by the EU institutions and the member states in the respective areas. Moreover, if the ECJ were to apply EU fundamental rights to situations where there are no rules of EU law, and therefore no powers for the EU, this would have the effect of unacceptably extending the EU ‘ s powers. The scope of application of EU fundamental rights is also of particular importance for exploring the (potential) development of positive obligations on the basis of EU law. The main question to be asked in that respect is to what degree it can be expected that positive obligations could indeed fall within, or rather outside, the scope of application of EU law.

In answering this question, the meaning of Article 51 of the Charter is of central concern. This chapter discusses, first, how scholars have interpreted the meaning of this provision (section 9.2.). What scope and what limits do they derive from this provision for the protection of fundamental rights by the ECJ, and how do they expect the ECJ to accommodate a notion of positive obligations into EU law on the basis of this provision? By finding answers to those questions, a theoretical framework for a development of positive obligations is set out which aims to respect the limits laid down in Article 51. Next, it is examined how the ECJ itself has interpreted and applied Article 51 of the Charter (section 9.3.). In this regard, three types of situations which the ECJ has found to fall within the scope of application of EU fundamental rights will be discussed. It is submitted that the EU in fact enjoys different types of powers in these three types of situations. The existence of these different types of powers needs to be acknowledged when assessing whether it would be possible for the ECJ to develop positive obligations in its case-law.