The ECJ on Aslyum, Greece & the UK Protocol on the EU Charter

Last Wednesday, the European Court of Justice issued a flurry of judgments just before the Christmas break. Indeed, there were so many interesting and important decisions amongst the twenty or so handed down that seems foolish to consider any of them the ‘most important’. Nonetheless the judgment in NS and Others v SSHD (C-411/10) must be a contender for the title. The case concerns an asylum seeker in Britain who first entered the EU through Greece. The Dublin Regulation, which governs this aspect of EU asylum law, would ordinarily dictate that the applicant should be sent to Greece to have his asylum claim considered there. However, Mr Saeedi challenged his transfer to Greece, claiming that his human rights would be infringed by such a transfer as Greece would be unable to process his application. NS was joined with an Irish case, ME & Others v Refugee Applications Commissioner & MEJLR (C-493/10), which raised similar questions for EU law. Continue reading

Zagorski: US Executions, UK Law and European Human Rights

Any case involving the death penalty in the United States and European human rights is likely to pique the interest of legal observers. The death penalty – still an accepted part of the criminal justice system in the United States – is considered to be a violation of human rights in Europe. In Soering v UK, the European Court of Human Rights famously held that the extradition of the applicant from the UK to the US would result in a breach of Article 3. The Court held that

having regard to the very long period of time spent on death row in such extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, especially his age and mental state at the time of the offence, the applicant’s extradition to the United States would expose him to a real risk of [inhuman and degrading treatment].

The case of Zagorski & Baze, argued before the High Court in London last week and decided on Tuesday once more draws together US capital punishment, UK law and European human rights standards. Continue reading

Saeedi: The UK & the EU Charter of Fundamental Rights

Saeedi is a labyrinthine EU/UK case relating to whether it is permissible for the UK to transfer an asylum seeker to Greece under the Dublin Regulation notwithstanding the likelihood of ill-treatment there. It merits much more substantive comment than I am able to afford it here. However, one small point, conceded in the Court of Appeal on Monday and quietly announced on Doughty Street Chamber’s website yesterday is worth highlighting. The UK Protocol to the Lisbon Treaty relating to the Charter of Fundamental Rights is not, in the eyes of the Secretary of State for the Home Department, or the Court of Appeal, an opt-out. This would perhaps not be worth pointing out at all were it not for Justice Cranston’s finding to the contrary in the High Court.

It is clear from a plain reading of the Protocol that it is not an “opt-out” from the Charter but rather a clarification of its application in the UK. This was acknowledged by Lord Goldsmith, Attorney General for the UK when the Charter was first negotiated, in a speech at the British Institute of International and Comparative Law on 15 January 2008: Continue reading

EU Charter of Fundamental Rights after Kücükdeveci

ECJEarlier this year the European Court of Justice handed down its decision in Kücükdeveci – prompting a deluge of commentary from the EU blawgosphere (see some meta-blogging here).The case concerned a claim of age discrimination based on a German employment law that did not take periods of work served prior to the employee’s 25th birthday into account when calculating the notice period prior to dismissal. The German law was incompatible with the requirements of Directive 78/2000, the transposition period for which had passed prior to the applicant’s dismissal. However, as the respondant in the case was a private party, the general prohibition on allowing untransposed Directives to be relied upon against a private party would ordinarily have hindered Ms Kücükdeveci’s case. However, the Court of Justice held that the principle of non-discrimination on grounds of age was a general principle of EU law which was given “specific expression” in the Directive [para 21]. The Court also made reference to Article 21(1) of the EU Charter of Fundamental Rights which declares that “[a]ny discrimination based on … age … shall be prohibited” [para 22]. As a result the Court held that

It follows that it is the general principle of European Union law prohibiting all discrimination on grounds of age, as given expression in Directive 2000/78, which must be the basis of the examination of whether European Union law precludes national legislation such as that at issue in the main proceedings [para 27].

The Court proceeded to examine the matter at hand and concluded that the principle, as given expression by the Directive, precluded the German national legislation. The case has been much commented-upon as it appears to further erode the prohibition on the horizontal direct effect of directives. There were previously three ways in which that prohibition was eroded: (1) by the Court of Justice’s broad conception of the state; (2) by requiring national law to be interpreted in a manner that conforms with unimplemented directives (which was not possible in this case); and (3) by requiring national law to be set aside if it has not met with procedural or technical requirements laid down in a directive. To this list it is necessary to add the proviso that unimplemented directives may be implemented against private parties where they constitute the expression of a general principle of EU law. This has potentially wide-ranging implications and Adjudicating Europe claims that it is an example of the Court of Justice integrating Europe through law. The obvious question that arises is which general principles of EU law as given expression in which directives can be relied upon in proceedings between private parties? Adjudicating Europe has addressed the matter of private law, and it is not proposed to further consider private law principles here. Continue reading