Экзамен зачет учебный год 2023 / [Andreas_Fllesdal,_Birgit_Peters,_Geir_Ulfstein]-1

and the judges’ proposal concerned the level of pension to be allocated to judges after sixand twelve-year- terms, respectively (25 per cent and 50 per cent according to the judges’ proposal, 8 per cent and 16 per cent according to the Secretary General’s proposal). The disagreement was also on the installation allowance (amounting to one month’s remuneration for a judge who takes up residence in Strasbourg alone, and two months for judges whose spouse and children take up residence in Strasbourg, according to the judges’ proposal).132 Thus, in this case, the Court considered that the proposal failed ‘completely the test of comparability with other international Courts …’; it concluded that ‘in sum, the proposed substantial reduction in salary, the low level of pension resulting and the non-retroactivity of the scheme combine to make the SG’s proposal unacceptable to the Court’.133

Resolution 97(9) was replaced first in 2004, and finally in 2009.134 The preamble to the rules adopted in 2009 refers only to the proposal of the Secretary General, and still mentions article 16 of the Statute of the Council of Europe. The central element of this text is article 10 on pensions, which holds that: ‘Judges shall benefit from the pension Scheme for staff members which is in force at the Council of Europe at the time of their appointment, subject to any modifications rendered necessary by their particular status and conditions of service.’ According to this general regime, the rate of contribution is 9.2 per cent of the basic salary. So the reference is made to the rules applied to staff members of the Council of Europe, despite the fact that judges benefit from a ‘special status’ (article 1), as their independence is to be preserved.

The current discussions regarding the enactment of a statute for the Court concern the increased autonomy of the Court and the way to facilitate the amendment of provisions relating to organisational matters. This idea has started to take shape since the Izmir and Interlaken

132 See Committee of Ministers, ‘Response to the Secretary General’s Proposal for the Revision of Resolution (97)9 on the Status and Conditions of Service of Judges’, Appendix E, 7 April 2004, in Committee of Ministers, CM(2004)69, 26 April 2004, Review of Resolution (97)9 on the Status and the Conditions of Service of the Judges of the ECtHR, Proposal of the Secretary General.

133Ibid., Appendix E in fine (VII. Conclusions).

134Committee of Ministers, ‘CM/Res(2004)50 on the Status and Conditions of Service of Judges of the ECtHR’, 15 December 2004. Committee of Ministers, ‘CM/Res(2009)5 on the Status and Conditions of Service of Judges of the ECtHR and of the Commissioner for Human Rights’, 23 September 2009.

declarations.135 The independence of the Court should be enhanced, not reduced.136 At this stage, the content of the provisions that would be subject to the procedure is not clear. A committee of experts on a simplified procedure for amendment of certain provisions of the ECHR was set up; the Court is not represented, only the registry may send a representative(s) to meetings of this Committee.137

However, the issue is not so much about increasing the budget of the Court (the Court is aware of the financial crisis in Europe) as gaining more autonomy in the way the Court functions daily and uses its resources. The Interlaken Conference ‘calls upon States Parties and the Council of Europe to … grant to the Court, in the interest of its efficient functioning, the necessary level of administrative autonomy within the Council of Europe’. It also ‘invites the Court to continue improving its internal structure and working methods and making maximum use of the procedural tools and the resources at its disposal’. The Izmir Declaration states that the conference invites the Court ‘to present to the Committee of Ministers proposals, on a budget-neutral basis, for the creation of a training unit for lawyers and other professionals’! The conference even ‘notes with satisfaction the arrangements made within the Registry of the Court that have allowed better management of budgetary and human resources’. Evidently the functioning of the Court is under strict scrutiny by the CoM and by the States.

Consequently, more and more pressure is put on the Court for a better use of its resources in its daily functioning.

4. Concluding remarks

During the last few years, the ECtHR has become increasingly involved in diverse issues. This is particularly true for the election of judges (indirectly through the panel of experts) and for the implementation of its judgments; the attempt to gain more autonomy at administrative and financial levels has been a failure so far. These attempts go hand-in-hand with the increasing activities of the Court and the willingness of some

135‘Interlaken Declaration’, 19 February 2010, point G of the Action Plan. ‘Izmir Declaration’, 27 April 2011, point G of the Follow-up Plan.

136Speech of Former President Costa, Izmir, 26 April 2011: ‘Toutefois, l’objectif doit être de renforcer l’indépendance, non de la réduire, ce qui serait le cas si certaines dispositions de notre Règlement étaient remontées au niveau d’un Statut.’

137Committee of Ministers, GT-SUIVI.Interlaken(2010)7, Appendix V, at 16.

judges, some politicians and members of the registry of the Court to reform the European system for the protection of human rights towards a Court which would deal with a limited number of cases and have a constitutional role.138

Such attempts are also linked to a certain confusion of powers between the three main organs of the Council of Europe, Indeed, this analysis has revealed that the overwhelming number of cases the ECtHR has to deal with has been used as a pretext for the governments in Europe and for the various actors of the Council of Europe to join forces. Although this mobilisation is understandable, as remedies have to be found to the current problems faced by the Court, the point is that it has blurred the distinction between the powers of the three organs (the CoM, the PACE and the Court) as stated in the Statute of the Council of Europe and the ECHR. The separation of powers between the legislative, executive and judicial bodies of the Council of Europe is put into question. The crisis, which is a crisis of the implementation of human rights in the national States, and not a crisis of the Court or of the European system, is used to legitimate the involvement of the other organs, and in particular of the CoM, to interfere in judicial matters. The independence of the Court is threatened by the CoM. The Brighton Declaration even indicates how the Court shall deliver judgments in repetitive and structural cases!139 It is not surprising that the previous proposal to enact a statute of the Court was addressed in only a few words in the Final Declaration of Brighton.140 The most serious concern does not come from the lack of

138Steering Committee for Human Rights, ‘CDDH Contribution to the Ministerial Conference organised by the UK Chairmanship of the Committee of Ministers’, CDDH(2012) R74 Addendum III, 15 February 2012, para. 34.

139CoE, High Level Conference on the Future of the European Court of Human Rights, ‘Brighton Declaration’, 20 April 2012, para. 20 (c): ‘Expresses continued concern about the large number of repetitive applications pending before the Court; welcomes the continued use by the Court of proactive measures, particularly pilot judgments, to dispose of repetitive violations in an efficient manner; and encourages the States Parties, the Committee of Ministers and the Court to work together to find ways to resolve the large numbers of applications arising from systemic issues identified by the Court, considering the various ideas that have been put forward, including their legal, practical and financial implications, and taking into account the principle of equal treatment of all States Parties; d) Building on the pilot judgment procedure, invites the Committee of Ministers to consider the advisability and modalities of a procedure by which the Court could register and determine a small number of representative applications from a group of applications that allege the same violation against the same respondent State Party, such determination being applicable to the whole group.’

140Ibid., para. 37 in the ‘General and final provisions’ part.

an autonomous budget of the Court, but mostly from the involvement of the executive organ representing the governments to impose its will upon the Court, even in its daily functioning and judicial policy. In his speech at Brighton, the President of the Court affirmed that the judges are, ‘I have to say, uncomfortable with the idea that Governments can in some way dictate to the Court how its case-law should evolve or how it should carry out the judicial functions conferred on it’, concluding that

‘the need for the Convention and for a strong and independent Court is as pressing now as at any time in its history’.141

In the name of more efficiency of the European system of human rights, the current reforms represent a worrying infringement of the independence of the Court, which cannot be justified by the interference of the Court in the election process and in the implementation of its own judgments.

141CoE, High Level Conference, Brighton, 18–20 April 2012, Sir Nicolas Bratza, President of the European Court of Human Rights, Draft Speaking Notes.

mere juxtaposition. This is formally true, but only trivially so. In fact, the relationship has been asymmetrical. This merits clarification.

Prior to accession, the ECtHR has had no official legal relationship with the EU, in the sense that there are mutually obligatory arrangements which create specific institutional relations with the ECJ on a mutually agreed legal basis such as a treaty or other bior multilateral treaty. Formally, the ECtHR has no official legal relation to the EU. It cannot, therefore, scrutinise its actions as it can scrutinise those of the states which are a party to the ECHR. But from the perspective of the EU, the relationship is not so in the same manner.

1.1Asymmetric legal relations

In its case law, the ECJ unilaterally adopted a standard of fundamental rights protection based on two pillars: the rights of the constitutional traditions common to the member states and the rights of the human rights treaties to which the member states are party, in particular – but not exclusively – the ECHR. The rights found in these two pillars could neither be protected qua national constitutional rights nor qua treaty rights. The EU is not legally bound by national constitutions, nor is it legally bound by human rights treaties.2 The power of the ECJ is limited to the interpretation of EU law. As it is neither bound by national law, nor to human rights treaties to which only member states are bound, it has no formal legal role in guaranteeing those rights. Nevertheless, in order to achieve such protection, these rights had to be transformed into EU law. This was done by declaring them part of the general principles of Community law, now Union law. Resorting to this somewhat roundabout approach was made necessary by the combination of the absence of a bill containing classic human rights in the European founding treaties, and the EC/EU not being a party the ECHR, together with the repeated warnings by German courts referring cases to the ECJ. The warnings were made in those national courts’ explanation of the questions they posed in preliminary reference proceedings: if, in those instances, the ECJ were to refrain from taking a constructive approach to the protection of the rights in a manner equivalent to how they are protected under the German Grundgesetz, this would be reason for those German courts

2A recent exception is the Convention on the Rights of Persons with Disabilities (13 December 2006) 2515 UNTS 3, entered into force 3 May 2008, which the EU signed on 30 March 2007 and ratified on 23 December 2010.

no longer to grant direct effect to the disputed European law of which the compatibility with fundamental rights was in doubt.

Thus, via the convoluted route of the general principles of Union law, the ECHR rights became unilaterally incorporated into EU law, first in the ECJ case law only, and subsequently in the EU Treaty concluded in Maastricht in 1992 in a formula which we still find now in article 6(3) EU:

Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.

1.2 From fundamental rights rejection to full scrutiny

It should be emphasised from the outset that the ECJ has gradually improved the standard of scrutiny it upholds when confronted with a claim that an act under EU law is contrary to fundamental rights guarantees. In its early case law, the Court simply refused to consider such a complaint. It could do so the more easily, since plaintiffs relied on fundamental rights as contained in national bills of rights, in particular, German plaintiffs by relying on the Grundgesetz.3 As the Court is competent only to adjudicate on the basis of European law, not national law, the standard rejection was plausible. The turning point came in a series of German cases, of which the first is the case of a man called Erich Stauder, who wanted to remain anonymous and therefore did not want his name on the tickets for cheap butter for poor Germans to be handed in in shops – a European subsidised manner to reduce the quantity of over-produced butter stocked by the then EC to keep prices up at the time. The Court, incidentally, had the insensitivity not only of mentioning his name, making the man who sought anonymity famous among lawyers, but also of giving the precise details of his home address in Ulm.4 This and the subsequent line of case law confirmed the ECJ’s

3Case 1/58, 4 February 1959, Friedrich Stork & Cie v. High Authority of the European Coal and Steel Community; Joined Cases 36, 37, 38 and 40/59, 15 July 1960, Präsident RuhrkohlenVerkaufsgesellschaft mbH, Geitling RuhrkohlenVerkaufsgesellschaft mbH, Mausegatt RuhrkohlenVerkaufsgesellschaft mbH and I. Nold KG v. High Authority of the European Coal and Steel Community.

4Case 29/69, Erich Stauder v. City of Ulm – Sozialamt [1969] ECR 419.

power to protect such rights as general principles of Community law, but indeed, the scrutiny was lax. Mostly the Court found that a matter came within the scope of the right adduced, but that the measure which interfered with that right was taken in the interest of the Community and did not fully take away the core essence of the right, so was justified.5 In the course of time, this approach was criticised as not ‘taking rights seriously’.6

A quite definitive change in the intensity of scrutiny came in the Connolly judgment, an appeal against a judgment of the Court of First Instance on disciplinary measures against a Commission official who had written a book during a study leave on the many flaws of the making of the monetary union.7 In the book, he used what is conceived of on the continent as Europhobic invective, but which presumably might just as well be qualified as colourful hyperbole in a long-standing tradition of English writing on anything ‘European’.8 He not only wrote, but also published the book without the prior consent of his superiors in the Commission,9 under the title The Rotten Heart of Europe, with Manneken Pis (Petit Julien) weeing over the map of Europe on the cover. The fact that not everything in the book was kind, flattering or polite had – no doubt – added fuel to the conflict he had with his

5E.g., Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhrund Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125; Case 4/73, J. Nold, Kohlenund Baustoffgroßhandlung v. Commission of the European Communities [1974] ECR 491; Case 44/79, Liselotte Hauer v. Land Rheinland-Pfalz [1979] ECR 03727.

6J. Coppell and A. O’Neill, ‘The European Court of Justice: Taking Rights Seriously?’, Common Market Law Review 29:4 (1992) 669–92; and the riposte by N.J.S. Lockhart and J.H.H. Weiler, ‘“Taking Rights Seriously” Seriously: The European Court and its Fundamental Rights Jurisprudence’, Common Market Law Review 32:1 (1995) 51–94 (Part I), and 579–627 (Part II).

7Case C-273/99 P, Bernard Connolly v. Commission of the European Communities [2001] ECR I-1575.

8See M. Spiering, Englishness: Foreigners and Images of National Identity in Postwar Literature. Studia Imagologica: Comparative Literature and European Diversity (Amsterdam: Rodopi, 1992).

9Article 17 of the Staff Regulations, Regulation (EEC, Euratom, ECSC) No. 259/68 of the Council of 29 February 1968, OJ 56, 4.3.1968, pp. 1–7, as it then read: ‘An official shall not,

whether alone or together with others, publish or cause to be published without the permission of the appointing authority, any matter dealing with the work of the Communities. Permission shall be refused only where the proposed publication is liable to prejudice the interests of the Communities.’ This provision has been amended by Council Regulation (EC, Euratom) No. 723/2004 of 22 March 2004, OJ L 124/1, replacing prior consent with prior notification.

submit, constituted a revolution in the role of the ECJ as authentic fundamental rights umpire in the Union. Since then, overall the ECJ has lived up to the task of interpreting and applying the ECHR in line with the Strasbourg case law.

1.3 Factual relations between the two courts

The legal story on the state of affairs prior to the accession of the EU to the ECHR is not sufficient to sketch relations between the two courts.10 There is also the more factual aspect of relations between them. This concerns the judicial dialogue which takes the form of regular meetings between the members of the two courts, which enable them to discuss matters of common interest in a round table meeting, usually on the basis of two or three presentations by members of each court. These exchanges usually take place during the late autumn or winter. The courts take it in turn to host the meetings. As one former judge of the ECtHR once remarked, the judges from Luxembourg each travel with their individual car and driver provided by the ECJ; the judges from Strasbourg go by bus.

It is hard to find out exactly when these periodic meetings began, but presumably they have taken place since the 1990s, and they may have their origin in the establishment of more direct contacts between the two courts after a little accident in 1989. This occurred in the judgment of the ECJ of 21 September 1989 in Hoechst, which is a very interesting case also from the substantive point of view.11 In order to collect evidence of unlawful practices, the business premises of the company were searched by Commission officials under a warrant which ultimately had its basis in a piece of European legislation concerning such unlawful practices, and a fine was eventually imposed.12 In a case against the imposition of the fine by the Commission, the company held that

10There is a hausse in literature and conferences on both the judicial and the non-judicial ‘dialogue among judges’. Instead of many others, I refer to the ‘Special Issue on Highest Courts and Transnational Interaction’, Utrecht Law Review 8(2) (2012); especially the contributions by M. Claes and M. de Visser, ‘Are You Networked Yet? On Dialogues in European Judicial Networks’, at 100–14.

11Joined Cases 46/87 and 227/88, Hoechst AG v. Commission of the European Communities

[1989] ECR 2859.

12Article 14 of EEC Council Regulation No. 17: First Regulation implementing articles 85 and 86 of the Treaty (as amended).