Editor’s Comment: The adequacy of the ECJ jurisprudence in the area of human rights has been the subject of extensive critical comment in recent times, not least since its much commented upon decision in Opinion 2/13. I have invited one of the most authoritative, knowledgeable and sober voices in the EU law interpretative community, Daniel Sarmiento to contribute a Guest Editorial on this topic. We are honoured to publish it in this issue.
‘We are not a human rights court.’ This phrase has been repeated over and again by judges and advocates general of the Court of Justice of the EU for many years. To the question of why does the Court not rely more on Strasbourg case law on human rights in the field of, say, competition, the reply was a classic: ‘we are not a human rights court’. If the Court was accused of ignoring international human rights instruments in cases with a strong tie with international law, the response sounded familiar: ‘we are not a human rights court’. If human rights were put aside or restricted in the name of free movement rules, the explanation was always ready to go: ‘we are not a human rights court’.
Indeed, the Court of Justice was not designed in its early days to be a human rights court, but its current role as the lead player of the European judicial landscape has put it in an unprecedented situation. There is no area of policy that escapes the scrutiny of the Court of Justice: the digital world has found in the Court an uncompromising upholder of private life that will not tolerate intrusions in the sphere of individuals’ privacy; the effectiveness of asylum policy depends on the Court’s readiness to interpret asylum rules as procedural or substantial guarantees in light of human rights; consumers throughout the continent rely on the Court’s judgments to rule on how banks, digital titans or retailers treat their clients; criminal procedures have come under the umbrella of EU harmonization instruments, putting the Court in a privileged position to set standards and guarantees of criminal procedure in all Member States.
These are only a few examples of how the Court has been transformed from a modest international jurisdiction into a supranational hegemon, whose decisions have a direct and significant impact on the rights and lives of millions of Europeans.
The transformation has been particularly intense in the field of human rights. Ever since the entry into force of the Charter of Fundamental Rights of the EU, the Court of Justice has faced thousands of preliminary references from national jurisdictions searching for interpretative help on human rights. For the very first time, the Court has begun to be systematically confronted with human rights questions in a way that cannot be solved through its traditional syllogistic and apodictic reasoning. The case of freedom of religion is paradigmatic: in scarcely two years, the Court has been confronted with the interpretation of the Charter’s rules on freedom of religion and equality in cases concerning the use of the headscarf in the workplace, the use of private slaughterhouses for the Islamic Feast of the Sacrifice, the collection of private data by Jehovah’s Witnesses when preaching on the doorstep, or the recruitment criteria of management based on the grounds of the candidate’s religious beliefs. No matter how predominant the internal market and its rules might be, the argument that ‘we are not a human rights court’ has dramatically run out of steam since the entry into force of the Charter.
But is the Court solely to be blamed for its lack of enthusiasm in embracing its human rights responsibilities?
The European legal community is broad and intellectually powerful, exerting at the same time a significant influence over the Court of Justice, its judges, its advocates general, its legal secretaries and all the actors that play a role in the decision-making process in Luxembourg. The ‘legal community’, understood as academics, commentators, practitioners and civil servants from the EU Institutions and the Member States, has hardly engaged with the Court in its new capacity as a human rights jurisdiction. For the past years since the entry into force of the Charter, academia has been more concerned, to give a few but revealing examples, in criticizing the Court’s decision to reject the agreement on the accession of the EU to the European Convention on Human Rights, or in arguing how unworkable its interpretation of Article 51 of the Charter, and the criteria to determine its scope of application in Member States, is for national courts. In the meantime, national courts, particularly constitutional courts, have kept themselves busy playing a European cat-and-mouse game, with the aim of dealing with a Freudian obsession about power, prominence and fatherly authority. The price we have paid is an academic community increasingly out of touch with the crucial task of contributing to a European common legal project, and a judiciary too obsessed with power and setting the terms of the dreary question of the final word
Thus, the Court of Justice cannot be solely blamed for having little appetite to become a human rights court: the legal community has given her scarce materials to reflect on, not many scholarly utensils to construe a human rights discourse with intellectual added value. For the time being, EU legal scholarship has provided the Court with some valuable works, but also many complaints about competence creep and lack of sensitivity. Hardly the material on which an incipient human rights court can feed on.
This outcome is closely linked to a change in the approach towards EU law that took place in the late 1990s. As European legal scholarship took a critical turn, a negative narrative about European justice and integration emerged in academic circles in various Member States. Constitutional pluralism, and particularly its strand of radical pluralism, was the most sophisticated manifestation of this critical trend, in which the Court of Justice was seen as an unreliable hegemon, too powerful to be left alone with no supervision from national constitutional courts. The economic crisis and the rise of a Eurosceptic wave throughout Europe, in which arguments about austerity, democratic deficits, German diktat and technocracy, among others, turned a critical stance towards European integration and law into a sceptical undercurrent that impregnated much of the literature on EU law and integration. When the time came to turn the Court of Justice into a human rights court, many of those who criticized the Court in the 1980s for not doing enough, were now accusing the Court for being activist, insensitive and intrusive with national identities.
For all its faults and defects, the Court of Justice is a remarkable institution that has produced one of the most relevant legacies of European legal culture. However, no matter how remarkable this jurisdiction might be, it cannot construe on its own a case law as complex and ambitious as the current circumstances now demand. If the Court is to assume its role as a human rights court, it needs, inter alia, constitutional courts to provide useful contributions on the scope and interpretation of human rights, and not gratuitous reminders of how powerful and self-important constitutional courts can be. In this regard, the recent judgment in M.A.S. is very a positive development, whereby the Italian Constitutional Court has engaged with the Court of Justice in a genuine dialogue not so much about power, but about striking, in a common and noble effort, the right standard of protection in interpreting a fundamental right (Case C-42/17, M.A.S and M.B. (EU:C:2017:936)).
The same applies to academia. The critical turn of many commentators has hardly helped the Court to find a helpful hand in scholarly writings as of late. For a jurisdiction trying to assert the effective enforcement of a new but intrusive legal order in closed and self-centred national legal systems, the discourse of radical pluralism is an unmanageable tool that puts the Court before an impossible dilemma to which it cannot reply. Radical pluralists have still not come to grips with the fact that their claims are not only unassumable, but hardly understandable for a jurisdiction whose mission is to ensure a coherent and uniform interpretation of EU law.
However, it is possible to construe a positive working relationship in which all parties retain their independence while nevertheless contributing positively to facilitating the Court’s full transit into its new skin. In the same way that the Italian Constitutional Court has put aside its discourse on the controlimiti on EU law and has embraced a shared effort in the interpretation of human rights, hand in hand with the Court of Justice, legal scholarship should assume that there is a lot of work ahead of us that is better construed with the Court, rather than confronting it. The critical turn is a useful guide in pointing towards where we should not head, but it cannot be the main guiding light in the academic legal discourse. As the saying goes, plan beats no plan.
No matter how flawed Opinion 2/13 might be, or how disappointing the Court’s reluctance towards international law was in Kadi, or how frustrating the Court’s interpretation of the Charter’s horizontal provisions can be, legal scholarship has a duty to engage constructively with the Court, not against it. This is not an invitation to blindly accept whatever comes from the Court, quite the contrary. It’s simply an invitation to support the Court in its struggle to speak its name loud and clear, so that it can soon be in a position to unashamedly say ‘we were not a human rights court, but we are one now’.