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EU external action and the Rule of Law: ensuring the Judicial Protection of Human Rights beyond the Right of Access to Judicial Protection

Chiara Cellerino, Docente a contratto di EU Law, Libera Università Maria
SS. Assunta di Roma.

Con il progressivo ampliamento delle competenze e delle funzioni esterne esercitate dall’Unione, aumenta altresì la domanda di tutela giurisdizionale rispetto agli atti adottati dalle istituzioni aventi effetti extraterritoriali. Con la conseguenza che si rende necessario valutare la conformità di tali atti, inter alia, con gli standard di tutela dei diritti fondamentali vigenti a livello di diritto dell’Unione, senza tuttavia che la Corte di giustizia interferisca con le complesse valutazioni di natura politica, che caratterizzano le scelte di politica estera da parte delle istituzioni. L’articolo fornisce un’analisi dello stato di tutela giurisdizionale dei diritti umani garantito nel contesto dell’azione esterna dell’Unione, con particolare riferimento alla recente prassi della Corte di giustizia, e tenendo in considerazione il regime di accesso alla giustizia previsto dai Trattati, dopo la riforma di Lisbona. L’Autore ritiene che, anche quando i Trattati non consentono all’individuo un accesso diretto alla giustizia dell’Unione, altri strumenti garantiscono la generale conformità del sistema nel suo complesso al principio dello Stato di diritto. Ciononostante, si auspica il massimo impegno della Corte di giustizia ad assicurare, tutte le volte che ciò è possibile, una cognizione e tutela effettiva dei diritti umani nel­l’ambito dell’azione esterna, con tutti gli strumenti a disposizione.

PAROLE CHIAVE: azione esterna - politica estera - sicurezza comune - stato di diritto - diritti umani - accordi internazionali - obblighi di diritto internazionale - tutela giurisdizionale - misure restrittive - rinvio pregiudiziale - azione di annullamento

With the widening of EU external competences, powers and functions, the call for judicial review of acts of institutions having extraterritorial effects is increasing. This entails the need to adjudicate conformity of EU acts also with human rights standards, while at the same time avoiding undue interference of the Court in discretionary choices of EU institutions, when conducting complex assessments and balancing of interests, such as those involved in foreign policy decisions. The paper provides a critical appraisal of the state of judicial protection of human rights in the context of external action of the EU, with a particular focus on some recent practice of the Court of Justice and taking into account the system of access to judicial protection shaped by the Treaties after the Lisbon reform. The Author concludes that, also in cases where direct access to judicial protection cannot be granted under the Treaties, other tools exist that ensure the overall compliance of the system with the rule of law. Yet, the utmost engagement of Court of Justice in effective judicial cognition and protection of human rights within EU external action is advocated whenever possible, and through all available means.


I. Introduction. - II. External action and human rights obligations stemming from EU law. - III. The Court of Justice contribution to EU international actorness. - IV. Limits (and counter-limits) to Court of Justice jurisdiction in CFSP. - V. The judicial review of human rights in cases of restrictive measures against individuals. - VI. Some recent cases calling for judicial review of human rights in other fields of external action. - VII. The (disappointing) case of the EU-Turkey Agreement addressing the migration crisis. - VIII. Conclusions. - NOTE

I. Introduction.

Since its early cases, the Court construed the EU legal order as a system of rights: not only individuals were entitled to rely on directly applicable fundamental freedoms, but also their human rights, as protected by the (especially in those years) common [2] constitutional traditions of the Member States and international instruments, were incorporated into EU legal order and, within the scope of application of EU law, were safeguarded under the system of judicial review afforded by TEU and TFEU. In parallel with this development, the principle of rule of law, based inter alia on the judicial review of all acts of EU institutions [3], was progressively sculpted into the CJEU jurisprudence and, together with the democratic principle, became a structuring element of the system, later codified in primary law (art. 2 TEU). The above shapes today a unique integrated constitutional space, where EU competences are exercised according to a balanced interplay of (vertically) distributed and (also horizontally) limited powers [4], subject to scrutiny of legality by the Court of Justice of the EU [5]. This relatively new “constitutional” space is jealously protected also from “external” interference, as shown by the Kadi judgement, where it was clarified that «the review, in principle the full review, of the lawfulness of all European Union acts in light of fundamental rights» had to be ensured by EU courts and tribunals also with regard to acts designed to  give effects to resolutions generated outside the EU legal order, and namely adopted by the Security Council under Title VII of the Charter of the United Nations [6]. In this respect, as it will be argued in greater detail below, it can be assumed that the obligation to respect human rights equally applies to EU institutions when they act in the internal and external coté of EU law (see infra, par. II). Against this background, however, the judicial practice on human rights adjudication in the context of external action has been rather limited, at least until recent times [7]. This is only partly due to the fact that, in a relevant area of EU external relations i.e. Common Foreign and Security Policy (“CFSP”), the jurisdiction of the Court is expressly and generally excluded by primary law [8]. In fact, also outside CFSP domain, the judicial cognition of [continua ..]

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II. External action and human rights obligations stemming from EU law.

A preliminary issue of our analysis is to establish whether, as a matter of EU law, human rights obligations apply to EU institutions in the first place, when they act in the context of external action. Reference is made in particular to acts of institutions, adopted according to internal procedures, having extraterritorial effects (such as, for example, the decision to conclude an international agreement, or to establish an international sanction against a third State or an individual) [11]. According to the Charter of Fundamental Rights of the European Union (hereinafter also the “Charter”) freedoms and principles laid down therein bind «the institutions, bodies, offices and agencies of the Union» as well as «Member States when they are implementing Union law» (art. 52 of the Charter). Indeed, in a case regarding CFSP measures against Al Quaeda, the Court acknowledged that the wordings of the Treaties and of the Charter clearly suggest that «the duty to respect fundamental rights is imposed … on all the institutions and bodies of the Union» and it bears «also on Union measures giving effect to resolutions of the Security Council». Although the case regarded the specific case of targeted sanctions, it can be assumed that the Court intended the obligation at stake to apply irrespective of whether institutions are exercising their powers with “domestic” or “external” effects [12]. The possibility to apply human rights obligations to EU institutions independently from the activity they are performing seems further supported by the statements of the Court in the Ledra case, where it was established that the Charter applies to the EU institutions even when they act outside the EU legal framework [13]. In light of the above, the point can rather safely be made that the Charter applies as a parameter of validity of all acts of EU institutions, including those adopted in the context of external action[14]. This conclusion is further strengthened by some other textual elements, namely art. 3(5) and art. 21(1) and (2) TEU, according to which rule of law, universality and indivisibility of human rights and fundamental freedoms as well as respect for human dignity are also guiding principles of EU’s action on the international scene, and should be upheld, promoted and pursued as objectives of common policies and actions, including [continua ..]

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III. The Court of Justice contribution to EU international actorness.

Moving to the role of the Court of Justice, it can be noted that in a classical perspective, which can be traced back to the Westfalian State system, foreign policy was mainly a domain of the executive, and therefore of the King. Quick reactions and fast engagement of various resources necessary to protect the most fundamental interests of the State vis-à-vis external threats were in fact considered incompatible with a substantial involvement of other powers (be it legislative or judicial) in foreign policy decisions. This would also allow States to appear as unitary actors in the international scene, avoiding to show externally the internal divisions deriving from fragmentation of powers and conflicting poles of interests typical of any organized community of individuals [20]. This explains why, also in modern constitutional systems, the role of the legislature in decision-making regarding foreign relations is often limited [21]. Likewise, an attitude of self-restraint of courts in reviewing foreign policy acts of the executives is frequently found in domestic judicial practice. Reference is made, primarily, to the so called “political question doctrine” elaborated by the US Supreme Court in the famous case Baker v. Car, where the American judges pointed out the lack of «judicially discoverable and manageable criteria» to assess the legitimacy of government choices in this field [22]. Although EU legal order was to some extent reflecting a similar pattern in the past, after the entry into force of the Lisbon Treaty the role of the European Parliament in the field of external action increased considerably; its approval is today necessary for the conclusion of the majority of international agreements by the EU, according to the procedure set out in art. 218 TFEU. Similarly, the role of the Court is wider than in other sovereign systems: on one hand, it has the power to assess ex ante the compatibility of international agreements with primary law, according to the preliminary opinion procedure set out in paragraph 11 of art. 218 TFEU [23]; on the other hand, it has the exclusive competence to interpret and review the legality of all act of EU institutions, including those relating to the conclusion of international agreements [24]. No doubt that these powers conferred upon the Court by the Treaties resulted in a pivotal role of this institution in building and, at the same [continua ..]

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IV. Limits (and counter-limits) to Court of Justice jurisdiction in CFSP.

considered this very feature of EU law so fundamental as to undermine, inter alia, the legitimacy of the accession of EU to the said Convention, in particular to the extent that such accession would determine the judicial review of another Court (i.e. the European Court of Human Rights) on CFSP acts of EU. The reasoning of the Court in the mentioned opinion can be once again explained under the general priority to preserve the effectiveness of EU legal order – including its less “rule of law based” features – vis-à-vis “dangerous” interferences from other legal systems (supra, para III). To use a trendy expression nowadays, the Court seem to put “EU first” [30]. On the other hand, it should be noted that the same Court of Justice interprets this exclusion narrowly, as it is an exception to the general rule of art 19 TEU [31]. Indeed, because the Union is founded on the rule of law, the very existence of effective judicial review constitutes a pillar of the system [32]. As a consequence, the Court has progressively policed the boundaries of this exception, based on a case-by-case approach. So, for example, in H v. Council (EUPM to Bosnia-Herzegovina) and Elitaliana cases, the Court established that the exclusion does not cover administrative activity carried out by EU CFSP missions, in particular relating to staff management decisions [33] and decisions regarding procurement contracts by EU missions [34]. Furthermore, as anticipated above in para. III, in the Maritius and Tanzania cases, the Court did not hesitate to adjudicate the compatibility of agreements concluded on a CFSP legal basis with the procedural requirements established in art. 218 TFEU, reflecting the democratic principle in the conclusion of international agreements in this domain [35]. The above even if, in principle, also such international agreements can be considered “acts adopted on the basis” of CFSP provisions. However, in those cases, the judicial review exercised by the Court was possible under Art. 40 TEU, another express exception to the immunity of CFSP acts from CJEU jurisdiction [36]. Yet, the most significant “counter-limit” to the exclusion of the jurisdiction of the Court ex art. 275 TFUE is represented by “decisions providing for [continua ..]

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V. The judicial review of human rights in cases of restrictive measures against individuals.

The challenge of individual sanctions has been activated several times since the entry into force of the Lisbon Treaty [46]. The abundant case-law deriving therefrom represents today one of the most productive fields in which a substantive human rights review is carried out by the Court of Justice, with regard to external action. A full appraisal of such case-law would exceed the purposes of this writing; however, some general features need to be pointed out. In the first place, the Court has been generous in granting direct access to judicial review for individuals, through a reasonably wide application of the admissibility criteria of actions in this field. More precisely, if restrictive measures resemble measures of general application, in that they impose a certain prohibition on a category of addressees determined in a general and abstract manner, they are nevertheless considered as individual decisions affecting entities listed in their annexes [47]. In other words, the mere fact of being “listed” as an addressee of the sanction has been held sufficient basis for being considered directly and individually concerned by the measure at stake, and therefore allowed to bring an action for annulment under Art. 263(4) TFEU: «given its significant negative impact on the freedoms and fundamental rights of the person or of the entity concerned … any inclusion in a list of persons or entities subject to restrictive measures … allows that person or entity access to the Courts of the European Union, in that it is similar, in that respect, to an individual decision, in accordance with the fourth paragraph of Article 263 TFEU» [48]. However, the fact that direct access to the Court is granted to a satisfactory extent to individuals does not necessarily mean that any claim for violation of fundamental rights is successful. Indeed, different categories of rights have obtained different degrees of protection. In particular, since the Kadi cases, the Court applies a strict review of procedural rights. A special focus is placed on the obligation of statement of reasons, as a corollary of right to defence, and in particular on the need for the Council adopting the restrictive measure «to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested to [continua ..]

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VI. Some recent cases calling for judicial review of human rights in other fields of external action.

Some recent cases seem to indicate that, as EU international activity increases, the CJEU is progressively faced with individual claims enforcing human rights obligations of the EU, against acts of its institutions having extraterritorial effects, also outside the specific sector of smart sanctions analysed in the previous paragraph. Particularly relevant is the recent (and so far isolated) case of the EU-Morocco Agremeent (Fronte Polisariocase) [59], in which the National Liberation Movement for Western Sahara (Front Polisario) – a non self-governing territory administered de facto by the Kingdom of Morocco – sought annulment of the EU Council decision adopting the EU-Morocco Agreement on agricultural, processed agricultural and fisheries products, in so far as this agreement allegedly applied to the disputed territories of Western Sahara, thus violating fundamental right to self-determination, exploitation of natural resources and human dignity of the Saharawi people, including their right to be heard in accordance with Art. 41 (2) of the Charter. The case addresses the extraterritorial effects of the decision to conclude the mentioned agreement, in so far as exporters established in the territory of Western Sahara were affected by the regime established by such agreement. In this respect, in line with the mentioned case-law on discretionary powers of institutions in complex political assessments, the General Court recognized at the outset the wide discretion that institutions enjoy in the decision to conclude international agreements. Yet, the General Court also recognized a (procedural) duty of the Council to examine all the elements of the case, including risk that the conclusion of such agreement would go to the detriment of Saharawi inhabitants and would violate their fundamental rights. More precisely, according to the General Court reasoning, «if the EU allows the export to its Member States of products originating from this other country [Morocco] that have been made or obtained in conditions that do not respect fundamental rights of the population of the territory from where they originate, it risks indirectly encouraging these violations or benefitting from them» [60]. As a consequence, the General Court granted the application for annulment of the contested decision to the extent it approved the application to Western Sahara of the agreement at [continua ..]

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VII. The (disappointing) case of the EU-Turkey Agreement addressing the migration crisis.

A very different approach was followed by the General Court in the recent cases regarding the EU-Turkey (alleged) agreement addressing the migration crisis [73]. More precisely, three applicants – an Afghan national and two Pakistan nationals – brought actions for annulment of the mentioned agreement claiming in particular that the agreement exposes them to risks of refoulement to Turkey, with the further risk of being detained there or being expelled to their countries of origin, where they feared persecution and serious harm to their persons. Leaving aside the merits of the asylum policy of the EU, which is the origin of a very specific case-law also with regard to human rights enforcement in the EU [74], it is worth underlining that the General Court declared the claims inadmissible, for the contested EU-Turkey statement establishing the new regime of management of the migration flows between EU and Turkey was to be attributed to the Heads of States and Government of the Member States, and not the European Council, in its quality of EU institution. As a consequence, because the Court lacks jurisdiction to rule on the lawfulness of an international agreement concluded by the Member States [75], the General Court dismissed the actions. Both the outcome and the reasoning of the judgment are not particularly convincing: the Court seems to turn a blind eye on the questionable practice of Member States to “use” the framework of EU institutions to act in the international scene «exploiting the potentialities offered by international law as an alternative decision-making procedure within the EU legal system» [76], also in areas, such as migration and asylum policies, where an EU competence exists and has been exercised through the adoption of harmonizing rules [77]. This in turn allows the same Member States to: i) circumvent the procedural (democratic) safeguards for the conclusion of international (even mixed) agreements, as laid down in art. 218 TFEU; ii) claim immunity from the system of judicial review afforded by the Treaties. The above seems even more disappointing if one considers that the agreement at stake seems, at least prima facie, to interfere with the application of such common rules, with a tendency to lower the standards of human rights protection afforded therein [78]. It is therefore legitimate to wonder if the “avoidance” technique engaged [continua ..]

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VIII. Conclusions.

With the widening of EU external competences, powers and functions, the call for judicial review of acts of institutions having extraterritorial effects is now stronger than ever. This includes the need to adjudicate conformity of EU acts also with human rights standards, while at the same time avoiding undue interference of the Court in discretionary choices of EU institutions, when conducting complex assessments and balancing of interests, such as those involved in foreign policy decisions. The system of judicial protection afforded by the Treaties after the Lisbon reform opens up new spaces for the Court to review the merits of a wide and challenging area of EU foreign policy, namely that of international individual sanctions, which was previously precluded to the jurisdiction of the Court. This has led, in the last years, to a flourishing case-law which contributed substantially to reinforce individuals’procedural safeguards, and therefore compliance with the rule of law and human rights, in this specific area of EU external action. However, the Court remains prudent when assessing the validity of acts of general application such as decisions regarding the conclusions of international agreements by the EU vis-à-vis individual challenges based on art. 263 TFEU. Likewise, the Court has so far denied the award of non-contractual damages, as alleged consequence of EU acts on the international plane. If this necessarily preserves the policy discretion of institutions and, with it, the same credibility of EU as an effective international actor, it could sometimes be at odds with the right to an effective access to justice, as laid down also in art. 47 of the Charter. However, such provision «is not intended to change the system of judicial review laid down by the Treaties» [80]. Furthermore, when individual access to the Court of Justice is not granted by EU law, other tools exist that seem to ensure the overall compliance of the system with rule of law and democratic principles, such as the protection afforded by the judicial systems of the Member States [81] and the role of the Parliament in the conclusion of international agreements. In addition, as happened in the Front Polisario case, the Court might find ways to police the respect of human rights in the external action also without granting direct and individual access to justice to the affected parties (above, § 8). In [continua ..]

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