Eleanor Sharpston on the EU‘s accession to the ECHR

Eleanor Sharpston, advocate general at the Court of Justice of the European Union, was in Prague, Czech Republic, on Friday 23 April 2010 to give a lecture at Charles University’s Faculty of Law. With a smile and the legendary English sense of humour on her lips, she spoke of an extremely serious and up-to-date issue: the future accession of the European Union to the European Convention on Human Rights.(1)

From the lecture
The biggest issue related to the accession of the EU to the ECHR seems to be its inevitable consequence: the Court of Justice in Luxembourg – mind you! – will come under the direct control of the Court in Strasbourg.
Eleanor Sharpston refuses to see things that way. To her, the question should not be: who is the top court? The question should be: does every court do its job properly? That, she said, is the principal meaning of the so lange doctrine formulated by some Member States‘ constitutional courts (German Bundesverfassungsgericht in particular) and expressed (in a slightly different way in Bosphorus) also by the European Court of Human Rights in Strasbourg(2). As long as (so lange) these three instances (Luxembourg, supreme courts in Member States and Strasbourg) do their job, i.e. make sure that individuals are duly protected, that there fundemantal rights are safeguarded, that justice is done, that triangle will be in perfect balance. That is what the so lange doctrine should be considered to be. It should not be considered a threat, it should be considered a challenge. A guarantee that all these courts will do their best in making sure that individuals are protected.

Reaction
Eleanor Sharpston’s words are inspiring. Future will show, however. The so lange doctrine has been something that is there up in the air, does exist, but is not likely to ever be used. As long as this as long as doctrine (sic!) is not used, everything will be just fine. But is the activation of the so lange doctrine really nothing but pure theory? There cases with the potential and no court likes to be said that its case-law is bad. A friend of mine, a judge, told me once that, in his beginnigs, the greatest difficulty was to cope with the fact that a higher instace can actually strike down his judgment. This was a local court judge. Now, imagine the reaction of a judge sitting in a constitutional court of a Member State.
And imagine the reaction of a judge in Luxembourg.
Can that delicate situation be avoided? Is there anything that could be done to prevent the Sword of Damocles from falling? Narrow, informal contacts between the two court could help. It is true, however, that informal discussions are one thing, but having to decide a particular case is a completely different thing. And then, judges in both Luxembourg and Strasbourg already have a lot to do, don’t they?
Thus, it could be that the sole solution is the one proposed by Eleanor Sharpston: that each of the courts simply does everything to protect fundamental rights of individuals properly. And let us hope that the war will never be declared.

(1) Article 6.2 of the Treaty on the European Union, as amended by the Lisbon Treaty, leaves no room for doubt: The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. That same provision also adds: Such accession shall not affect the Union’s competences as defined in the Treaties. The Protocol no 8 adds some further elements.
(2) Judgment in BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ v. IRELAND (application no. 45036/98) was delivered on 30 June 2005.

Codification: does it make sense?

In EU language, "codification" means a "procedure for repealing the acts to be codified and replacing them with a single act containing no substantive change to those acts" (definition taken from Interinstitutional Agreement of 20 December 1994 on accelerated working method for official codification of legislative acts).
That is what it is: you take Directive A, amended by Directive B and Directive C, you work the amendments into the original text and you publish the resulting text in the Official Journal as a new Directive N, repealing Directives A, B and C.
In its Communication on "Codification of the Acquis communautaire", adopted on 21 November 2001, the Commission wrote:
The codification of the Community’s secondary legislation forming part of what is known as the acquis communautaire complements the Commission's governance strategy and is totally in line with its spirit. It will allow citizens and the business sector, in both the EU and the Candidate Countries seeking membership to benefit from a more accessible and transparent legislative framework. The codification of that acquis will clarify the law by bringing together in a single new legal act all the provisions of the basic act and its subsequent amendments. This process also renders the law more accessible by the deletion of obsolete provisions and the harmonization of the terminology used. It enables the mass of the legislation to be reduced whilst maintaining its substance, yet facilitating its readability.
The thing is you can actually achieve the same result with... consolidation. The Commission writes on its website:
Consolidation of a legislative act, like codification, brings together a basic legislative act and all its amending acts in a single text. Although the resulting consolidated texts are not subject to formal decision-making and therefore do not have legal status, they greatly facilitate access to legislation and reduce the volume of texts.

The only difference? Consolidated texts are not published in the Official Journal, they are not official, they are not authentic and they are always introduced with the following sentence: "This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents."
But while lack of authencity is its only disadvantage, consolidation has a range of advantages: it is easy, quick (OPOCE takes just a couple of weeks from the publication of an amendment to upload in the Eur-Lex website an updated consolidated text of the amended act), is easily accessible and is made throughout the acquis.
Here is the question: does it make sense to codify today in the computerized ages of the Internet? I mean: who actually reads the Official Journal? Raise your hand please. Anyone?

Example of a codified text: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:249:0009:0011:EN:PDF
Example of a consolidated text: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2000L0053:20080826:EN:PDF

Frustration of a Legislator

They say that a vast majority of legislation adopted by parliaments in the Member States today is nothing but pure transposition and that, in these cases, national parliaments are reduced to “formal voting machines” and pass legislation “without thinking and without having a discussion”.
Given this, one can understand the frustration of the President of the Czech Republic who, using the expressions quoted above, vetoed a legislative proposal aiming at the transposition of Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community.
In his opinion, issued on 14 April 2010, the President complains that the way the proposal concerned was adopted (no thinking, no discussion) “negates the meaning of parliamentary democracy and is yet another step for the Czech Republic to cease to be a sovereign state”. According to the President, the proposal should have been thoroughly discussed, as “the emission trading system is another drastic interference with the economic freedom based on very doubtful grounds, since the global warming doctrine – in particular its scientific base – is in reality dead”.
In addition, the President points out that the Directive concerned is being transposed while the Commission is still to adopt its guidelines, the key document for the application of the legislation.
There might lie something in his last point (although it seems that the guidelines were adopted in the meantime), but the other points? Truly enough, national parliaments should not be reduced (and should not reduce themselves) to “formal voting machines”. Directives, however detailed, are still directives and leave some room for consideration (Article 288 TFEU: “A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.”). Within that room, the discussion is possible and indeed desirable. But outside that room, what can you do, the train is gone, the discussion was conducted in Brussels and is over. For that reason, the Protocol on the role of national Parliaments in the European Union is definitely a good thing. (dk)

Further reading:
1) text of the veto of the President (in Czech)
2) Commission: Aviation and Climate Change
3) Protocol on the role of national Parliaments in the European Union