Five years ago we posted a piece entitled ‘Church and State III – the European dimension’. Perhaps the title was misleading, but some people still don’t seem to be able to understand the difference between the Court of Justice of the European Union and the European Court of Human Rights, so the following is an updated version, without the references to freedom of religion and belief.
Introduction: the great divide
In the not-too-distant future, the Prime Minister will trigger Article 50 of the Treaty on the European Union and the UK will begin the process of withdrawal. EU law will cease to apply to the UK when the withdrawal agreement enters into force or two years after notifying the European Council of the intention to withdraw unless there is a unanimous agreement to extend the negotiations. The House of Commons Library has produced a helpful note on all this: see Brexit: how does the Article 50 process work?
Until 2019, however, we shall still be members of the EU – and the extent to which we shall be obliged to take account of judgments of the CJEU after Brexit is still something of an open question, depending on what kind of trade deals we negotiate. Likewise, it would appear that the Conservative Party might well include repeal of the Human Rights Act 1998 and, possibly, withdrawal from the European Convention of Human Rights in its manifesto for the 2020 General Election. (Although it is possible that a General Election could be held before this date, under the provisions of the Fixed Term Parliament Act 2011 that would raise a number of practical difficulties.)
As of now, we are still full members of both institutions; and what follows sets out the basic structure of the two major European institutions: the European Union (“EU”) and the Council of Europe (“CoE”). There also are other less well-known Europe-wide political institutions, such as the Organization for Security and Co-operation in Europe, but they are much less important terms of domestic law.
The EU and the CoE both have ministerial councils, permanent secretariats of officials, courts to determine disputes and assemblies of parliamentarians – but their functions, organisations and legal foundations are very different and you must not confuse the two.
The Council of Europe
The Council of Europe, based in Strasbourg, was established on 5 May 1949 by ten countries: the United Kingdom was one of the founder-members. It now includes 47 member states, ranging in size from the Russian Federation to San Marino, and covers virtually the whole of European continent – the exceptions being Belarus and the Vatican – and a large chunk of Asia stretching to Sakhalin in the North Pacific, which is an oblast of Russia.
It seeks to develop common and democratic principles throughout Europe based primarily on the Convention for the Protection of Human Rights and Fundamental Freedoms (commonly known as the European Convention on Human Rights or ECHR), for which it carries particular responsibility and to which all member states are parties. Like the EU, the CoE has a multiplicity of institutions:
- The Committee of Ministers, with a six-month rotating chairmanship;
- A permanent secretariat, headed by the Secretary General and the Deputy Secretary General;
- The Parliamentary Assembly: a purely deliberative body which is not directly elected but composed of delegates from the national legislatures of the member states;
- A consultative, bicameral Congress of Local and Regional Authorities;
- A consultative Conference of International Non-Governmental Organisations; and
- The European Court of Human Rights (“ECtHR”).
In addition, the Council of Europe maintains a permanent advisory expert group on constitutional matters for which there is no parallel among the institutions of the EU: the European Commission for Democracy through Law, otherwise known as the Venice Commission, conducts studies and gives expert opinions on specific issues, very occasionally ranging far beyond the confines of the Council of Europe: see, for example, its Opinion on the electoral legislation of Mexico.
The European Union
What is now the European Union developed in stages from the original European Coal and Steel Community established in 1951 with the principal intention of creating economic ties between France and West Germany in order to make future conflict less likely. The EU developed through agreements defined in a number of treaties relating to the member states within the EU and its method of operation. Today, the principal treaties are the Treaty on European Union (“TEU”) and the Treaty on the Functioning of the European Union (“TFEU”).
The EU operates through several distinct institutions, the most important of which, for our purposes, are as follows:
- The European Council is composed of the heads of government of the member states, its permanent President, Donald Tusk, and the President of the European Commission, Jean-Claude Juncker. The permanent High Representative for Foreign Affairs and Security Policy, Federica Mogherini, also takes part in its meetings.
Which is not to be confused with…
- The Council of the European Union (sometimes just called “the Council” and sometimes still referred to as “the Council of Ministers”) consists of ministers of the member states with a varying membership depending on the matters under discussion – ECOFIN, for example, is the regular meeting of finance ministers. The Presidency rotates every six months among the governments of the member states – except that the Foreign Affairs Council is chaired by the EU’s High Representative and, after the result of the Referendum on Brexit, the UK Government gave up its opportunity to preside at Council meetings during the second half of 2017.
- The European Commission, often described as “the Guardian of the Treaties”, is based in Brussels. (The term “Commission” is used to refer both to the members of the Commission appointed by the member states and Parliament and to the institution itself and its staff, who are organised into departments.) The Commission operates at a supranational level and has three major functions (Article 17 TEU):
- to initiate Community action by making legislative proposals;
- to police and enforce EU legislation; and
- to act as the executive of the Community.
- The European Parliament holds plenary sessions in both Strasbourg and Brussels and committee meetings in Brussels: an arrangement referred to as “the travelling circus” (and just to make life hell for officials, its secretariat is based in Luxembourg). It is directly elected by the people of the twenty-eight member states, each state determining its own method for electing its MEPs. The majority of decisions are now made by what used to be termed “co-decision” and is now called the ”ordinary legislative procedure”.
- The European Economic and Social Committee (“ECOSOC”) is a consultative body of representative of employers, workers and other interest groups.
- The Court of Justice of the European Union (“CJEU”) is based in Luxembourg and adjudicates disputes arising under EU law.
For the EU, human rights generally are enumerated in the Charter of Fundamental Rights of the European Union of December 2000, which came into full effect with the entry into force of the Treaty of Lisbon on 1 December 2009. Article 6 of the consolidated text of the Treaty on European Union (TEU) declares that
“1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.
2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms [ie, the European Convention on Human Rights]. Such accession shall not affect the Union’s competences as defined in the Treaties.
3. 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”.
The accession of the EU to the ECHR was derailed by the Full Court of the CJEU in Opinion 2/13  EUECJ Avis-2/13, which answered the question, “Is the draft EU agreement re: accession of the EU to the ECHR compatible with the Treaties?“, in the negative. The issue of accession is still unresolved.
In addition to its human rights provisions, in order to exercise the EU’s competences its Institutions are empowered to adopt a range of legislative acts: regulations, directives, decisions, recommendations and opinions (Article 288 TFEU):
- A regulation has general application, it is binding in its entirety and it is directly applicable in all member states.
- A directive is binding upon each member state to which it is addressed as to the result to be achieved but leaves to the national authorities the choice of form and methods.
- A decision is binding in its entirety: a decision which specifies those to whom it is addressed is binding only on them.
- Recommendations and opinions have no binding force.
The two courts: the ECtHR
The European Court of Human Rights in Strasbourg was established under the Convention of 1950 to monitor respect for human rights by states parties to the ECHR. Applications against states parties for human rights violations can be brought before the ECtHR by other states, by other parties or by individuals. (Previously, there was also a European Commission of Human Rights, elected by the Committee of Ministers, that acted as a filter mechanism for cases by deciding whether or not a petition to the Court was admissible: it was abolished when the ECtHR was restructured in 1998.)
The ECtHR consists of a judge from each member state. When a vacancy occurs, the government of the state concerned nominates three candidates for the empty seat; but it is the Parliamentary Assembly that fills the vacancy by electing one of the three nominated candidates. (Presumably, the reason why the British press frequently describes the members of the Court as “unelected judges” is because your average journo has never bothered to read Article 39 ECHR.)
The Court normally sits in Chambers of seven judges; but if a sectional Chamber feels that a particular case referred to it raises a serious question affecting the interpretation of the Convention or if there is a risk of inconsistency with a previous judgment of the Court, it may relinquish jurisdiction to the Grand Chamber of 17 judges, consisting of the Court’s President and Vice-Presidents, the Section Presidents and the national judge from the state in question (if not otherwise eligible), together with other judges selected by lot to bring up the number to 17.
After a Chamber judgment has been delivered, the parties may request referral of the case to the Grand Chamber. Such requests are accepted only exceptionally: a panel of judges of the Grand Chamber decides whether or not the case should be referred to the Grand Chamber itself for fresh consideration.
At the end of the hearing, the judges give their judgments: while one member of the Court will probably give the lead judgment for the majority, concurring and dissenting judgments are also delivered and recorded, in the same style as judgments in the UK and Ireland.
The two courts: the CJEU
The Court of Justice of the European Union (“CJEU”) was previously known as the European Court of Justice (“ECJ”). Its primary functions are to interpret EU law to ensure consistency across all EU countries and to settle disputes between member states and EU institutions – often as a result of “infraction proceedings” brought by the Commission against a member state. Individuals, companies or organisations can also bring cases before the Court if they believe that their rights have been infringed by an EU institution. In addition, a national court may interrupt a case and refer a point of EU law to the CJEU for an opinion.
As well as the CJEU itself, there is also a General Court (which used to be known as the Court of First Instance), with its own judges, to hear cases brought by private individuals, companies and some organisations and cases relating to competition law.
Each member state nominates one judge to the CJEU and one judge to the General Court. In addition, there are eight Advocates-General: the AG for a particular case presents an opinion to the Court as a kind of amicus curiae.
The Court may sit either as a Grand Chamber of 15 judges (including the President and Vice-President) or in chambers of three or five judges, though Grand Chamber sittings are rare. At the end of the hearing, the Court pronounces a single judgment: dissents are not recorded.
The two courts: the differences
EU law is binding on member states
“All … rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly…”
For an example in which the House of Lords held, in effect, that EU law overrode the provisions of the Merchant Shipping Act 1988 relating to ownership and registration of fishing boats see R v Secretary of State for Transport, ex p. Factortame Ltd (No. 2)  UKHL 13. And because EU law is binding, so are the judgments of the CJEU because they are part of EU law.
The domestic effect of judgments of the ECtHR is equivocal
Section 2(1) of the Human Rights Act 1998 (which, it should be remembered, is a statute of the UK Parliament about the domestic application of rights under the ECHR and has little if anything to do with UK membership of the EU) declares that:
“(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights…” [emphasis added].
Precisely what “must take into account” means in practice has been the subject of considerable domestic debate. In a famously-pithy judgment in the House of Lords the late, lamented Lord Rodger of Earlsferry dismissed the appeal in Secretary of State for the Home Department v AF & Anor  UKHL 28 like this:
“Even though we are dealing with rights under a United Kingdom statute, in reality, we have no choice: Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed.”
In his evidence to the House of Lords Constitution Committee in October 2011, however, the then Lord Chief Justice, Lord Judge, said this:
“Strasbourg should not always win… There is yet a debate to happen, it will have to happen in the Supreme Court, about what we really do mean in the Human Rights Act, what Parliament means… when it said that the courts in this country must take account of the European Court of Human Rights. I myself think it is at least arguable that having taken account of the decision of the court in Strasbourg our courts are not bound by them. Give them due weight and in most cases follow them, but not necessarily.”
Others have been much more fundamentally critical of what they see as a tendency for the ECtHR to give an insufficient margin of appreciation to national governments and domestic courts: see, for example, Jonathan Sumption QC (as he then was) in his FA Mann Lecture 2011:
“[T]he Strasbourg Court endeavours not only to interpret the Convention but to apply it in a uniform manner throughout the 47 states which subscribe to it. This approach conflicts with some very basic principles on which human societies are organised. National communities are diverse, even within a region such as Europe with a strong common identity. Their collective values are the product of their particular culture and history. Rights are necessarily claims against the claimant’s own community, and in a democracy, they depend for their legitimacy on a measure of recognition by that community. A principled objection to extreme exercises of state power, such as military government, torture or imprisonment without trial is no doubt common to every state party to the Convention. But the Strasbourg Court has treated the Convention not just as a safeguard against arbitrary and despotic exercises of state power but as a template for most aspects of human life. These include many matters which are governed by no compelling moral considerations one way or the other.”
References from domestic jurisdictions
National courts may refer issues to the CJEU for a ruling but there is currently no procedure for any such reference by a domestic court to the ECtHR.
Paragraph 12(d) of the Brighton Declaration of the High Level Conference on the Future of the European Court of Human Rights in April 2012 proposed that such a procedure should be introduced and, subsequently, provision was made for advisory opinions in Protocol No. 16 to the ECHR. Under the Protocol:
- The highest court or tribunal of a state party “may request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto”.
- The requesting court or tribunal may seek an advisory opinion only in the context of a case pending before it; it must give reasons for its request and provide the relevant legal and factual background of the pending case.
- The decision whether or not to accept a request will be made by a five-judge panel of the Grand Chamber, which will give reasons for any refusal to accept the request.
- If the panel accepts the request, the Grand Chamber will deliver the advisory opinion.
- Reasons shall be given for advisory opinions and separate opinions will be permitted.
Protocol No. 16 opened for signature in October 2013. It is not yet in force and, thus far, the UK has not signed it.
As we have seen, the procedure of the ECtHR provides for dissenting and concurring judgments while the procedure of the CJEU, following the civil law tradition, does not.
The difference in a nutshell
In the words of Lord Judge LCJ to the House of Lords Constitution Committee:
“the distinction is very clear. Luxembourg Communities—binding; Strasbourg Convention—’take account of’.”
And that remains the position.
EU law will cease to apply to the UK when the withdrawal agreement enters into force or two years after notifying the European Council of the intention to withdraw (unless there is a unanimous agreement to extend the negotiations). The Government’s intention is that the Great Repeal Bill should, in effect, “freeze” the application of EU at the point of our departure, so that the existing law will remain in force until amended or repealed – but future EU legislation will not apply to the UK. That much is obvious, except for this. My suspicion is that, inasmuch as we continue to trade with EU member states after Brexit, there will be aspects of EU law with which we shall have to comply in order to be allowed to trade at all.
One example of that possibility is the upcoming General Data Protection Regulation scheduled to come into effect in May 2018 – before our planned exit. As an EU Regulation, it will be directly binding on all member states – and in May 2018 the UK will still be one of them. Under the expected terms of the Great Repeal Bill, it will be “frozen” as part of UK law when we leave – but, at least in principle, we could then amend its provisions or repeal it altogether. My assumption is, however, that even after we have left the EU, trading partners within the EU will expect firms in the UK to maintain at least as high a standard of data protection as they do themselves, if only on grounds of good cyber-security. The Information Commissioner’s Office has already started a regularly-updated Overview of the General Data Protection Regulation.
If my surmise is correct then perhaps, post-Brexit, the UK courts will find themselves, on occasion, having to “take account of” at least some of the rulings of the CJEU, just as with the ECtHR.