3. Expressions of consistency in the practice of the European Court of Justice
3.4. Consistency between the interpretation of the CJEU and the ECtHR
in the CFREU and the ECHR and their interpretation by the CJEU and the ECtHR is
76 Bobek (n 74) 554.
77 C-220/88 Dumez France SA and Tracoba SARL v Hessische Landesbank and others, Opinion of AG Darmon.
78 C-53/96 Hermès International v FHT Marketing Choice BV, Opinion of AG Tesauro.
79 C-386/10 P Chalkor AE Epexergasias Metallon v European Commission – Judgment [2011] para 48.
From Consistency to Legitimacy in the European Union Regime i133 warranted. We may find examples when the CJEU interpreted the CFREU so as to
provide a level of protection corresponding to that of the Convention. In the Bougnaoui and ADDH v Micropole SA judgment the CJEU interpreted the term religion in Directive 2000/7880 in the same fashion as it is in both the CFREU and the ECHR.81 In the Florescu case the CJEU expressly referred to the ECtHR’s ruling in Ionel Panfile v Romania regarding legitimate expectations with respect to the right to property regarding the implementation of conditions set by the EU for financial assistance during a financial crisis.82 Also, in the Al Chodor and others case, when interpreting the terms detention and significant risk of absconding in a case concern ing asylum seekers, the CJEU accepted the findings of the ECtHR in its Del Ríó Prada v Spain case. All these instances show some kind of a positive attitude by the CJEU towards the jurisprudence of the ECtHR, and a willingness to approximate the approaches of the two courts.
The harmony was not that apparent, however, in the recent judgment of the CJEU in the case of FMS and Others v. Országos Idegenrendészeti Főigazgatóság and the corresponding opinion of Advocate General Pikamae. The judgment and the Advocate General’s opinion interpreted the notions of detention and deprivation of liberty under the CFREU and the ECHR with respect to four persons who have submitted asylum applications to the Hungarian refugee authority but were subjected to return to Serbia due to inadmissibility and were placed in aliens detention in the Röszke transit zone.
The decision followed the ECtHR’s judgment in the Ilias and Ahmed case concerning two Bangladeshi nationals who arrived to Hungary through the Röszke transit zone, having had their asylum applications processed for twenty-three days by Hungary while in the transit zone. Hungary eventually rejected the applications on the grounds that it considered Serbia, which they crossed before their arrival to Hungary, a safe third country.
Both courts had to adjudicate whether the situation of asylum seekers in the Röszke transit zone amounted to detention, and despite the similar facts of the cases, the ECtHR found no violation of art 5 ECHR,83 whereas the CJEU condemned Hungary for its violation of European asylum law.84 The main argument was the difference in sectors in which the applicants were placed. Whereas Ilias and Ahmed entered the transit zone in the sector for asylum seekers – based on which the ECtHR argued that they could
80 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, 32000L0078, Official Journal L 303, 02/12/2000 P. 0016 – 0022.
81 C-188/15 Asma Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole SA, ECLI:EU:C:2017:204 [2017] para 30.
82 C-258/14 Eugenia Florescu and Others v Casa Judeţeană de Pensii Sibiu and Others, ECLI:EU:C:2017:448, [2017] para 56.
83 Ilias and Ahmed v Hungary App no 47287/15 (ECtHR 21 November 2019).
84 Joined Cases C-924/19 PPU and C-925/19 PPU, FMS and Others v Országos Idegenrendészeti Főigaz gatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendészeti Főigazgatóság [2020], ECLI:EU:C:2020:367, Judgment [2020].
b134 arbara bazánTh
leave the transit zone towards Serbia and therefore were not in detention –, the applicants in the FMS case were placed by the authorities in the sector of third country nationals whose asylum request was denied,85 and therefore they could not lawfully leave this zone except to their country of origin, classifying their circumstances as detention.86 Although this might be true from a strictly legal point of view, in practice not even the applicants in the Ilias and Ahmed case could leave the transit zone in light of their ongoing asylum application process and the risk of having it rejected for leaving the zone.
The fact that the two courts delivered divergent decisions in the above cases raises the question whether these inconsistent outcomes concluded in spite of the correspond-ing provisions on the right to liberty included in art 6 of the CFREU and art 5 ECHR could affect the relationship between the two convention regimes, create some lacunae in the human rights protection of the countries of the EU and States adhering solely to the ECHR regime, and how it will affect the legitimacy of the ECtHR in light of the fact that the CJEU, a primarily not human right focused international court brought about a stricter approach that the Strasbourg court.
Conclusions
As we have seen above, there is no agreed role or definition of consistency under EU law. It can either be an objective set out in different provisions of the Lisbon Treaty, a value at the heart of the method of consistent interpretation, a goal behind the insti-tution of preliminary rulings, a value to be manifested through judicial interpretation and reasoning, or a hardship in reconciling the activities of the CJEU and the ECtHR.
Nevertheless, due to these various expressions, legal scholarship deems consistency to still remain an aspiration principle, a pointer to a number of different EU law obli-gations, and instrumental and institutional constructions.
What can be ascertained, however, based on the above analysed practice of the CJEU, is that, despite the legally inconclusive and undefined nature of consistency, parties from time to time tend to flag the inconsistency in the CJEU’s jurisprudence in order to substantiate their position. The question is how the CJEU handles such arguments and how this affects legitimacy issues surrounding the CJEU. We may see the influence in two different regards. On the one hand, normative debates surround judicial activism as to the results-oriented approach of the CJEU87 and its poor legal
85 FMS and Others (n 84) para 72.
86 FMS and Others (n 84) para 74.
87 Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Oxford: Hart, 2013) 447; Hjalte Rasmussen, On Law and Policy in the European Court of Justice (Brill-Nijhoff, 1986).
From Consistency to Legitimacy in the European Union Regime i135 reasoning failing to explain the the arguments put forward and the logic behind the
outcome of the decisions.88 This affects the CJEU’s normative legitimacy.89
On the other hand, empirical evidence may also be found as regards the sociolog-ical legitimacy of the CJEU. A glaring example of such evidence is the study con-ducted by Caldeira and Gibson in the 1990s assessing and seeking to explain the public legitimacy of the CJEU by examining the public’s opinion regarding the CJEU’s work and its outcomes via a series of questions designed to measure both the public salience of the CJEU as well as awareness of the CJEU.90 The study suggests that public opinion appears not to respond to controversial rulings of the CJEU, which might be inter-preted to support Caldeira and Gibson’s argument that public trust in the CJEU is at best weakly related to the actual behaviour of the judges and derives instead from more general attitudes toward the EU and the rule of law.91
Based on these findings it can be concluded that inconsistencies and controversies in the decision-making of the CJEU may more likely impact the normative legitimacy than the sociological legitimacy of the CJEU. Nevertheless, this does not mean that its sociological legitimacy is not affected negatively especially given the uncertain and hardly measurable nature of public opinion. Therefore, what can be concluded is that strengthening the status of consistency so that it becomes something more than just an aspiration principle would certainly help the CJEU in safeguarding its fragile legitimacy – let it be normative or sociological.
88 Mitchel de S.-O.-l’E. Lasser, Judicial Deliberations: A Comparative Analysis of Transparency and Legitimacy (Oxford University Press, 2009) 107.
89 Mark A Pollack, ‘The Legitimacy of the European Court of Justice: Normative Debates and Empirical Evidence’ in Harlan Grant Cohen, Andreas Føllesdal, Nienke Grossman and Guir Ulfstein (eds), Legitimacy and International Courts (Cambridge University Press, 2018), 150, 155.
90 James L. Gibson and Gregory A. Caldeira, ‘The Legitimacy of Transnational Legal Institutions: Compliance, Support, and the European Court of Justice’ (1995) 39(2) American Journal of Political Science 459–89;
James L. Gibson and Gregory A. Caldeira, ‘Changes in the Legitimacy of the European Court of Justice:
A Post-Maastricht Analysis’ (1998) 28 British Journal of Political Science 63; James L. Gibson and Gregory A. Caldeira, ‘The Legitimacy of the Court of Justice in the European Union: Models of Institutional Support’
(1995) 89 American Political Science Review 356.
91 R. Daniel Kelemen, ‘The Political Foundations of Judicial Independence in the European Union’ [2012] Journal of European Public Policy, 19(1), 43–58, 49; M. Pollack, ‘The Legitimacy of the European Court of Justice:
Normative Debates and Empirical Evidence’ in Harlan Grant Cohen, Andreas Føllesdal, Nienke Grossman and Guir Ulfstein (eds), Legitimacy and International Courts (Cambridge University Press, 2018), 150, 169.
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---ISBN 978-963-489-384-4
The Inseparable Triangle:
Democracy, rule of law anD Human rigHts in tHe eu
E L T E EÖTVÖS K I A D Ó
Human rights, democracy and rule of law have been regarded as a mu-tually reinforcing ensemble by many legal theorists to date. This book contains a selection of papers from the webinar on ‘The Inseparable Triangle: Democracy, Rule of Law and Human Rights in the EU’ held at ELTE Faculty of Law in 2021, and represents relevant collection of chapters about the interconnected areas of human rights and European law. The webinar was oraganised as a part of the Jean Monnet Module
‘The Legal Enforcement of the basic Values of the European Union’.
This book, through various chapters, attempts to give an insight on how the EU and the Council of Europe must try to strike a balance be-tween diverging interests and priorities of the nation states, and should implement a firm strategy to protect human rights. The book contains chapters providing an overview and comparison of different existing practices with constructive suggestions for future development, as well as chapters dealing with more specific issues related to human rights and democracy.
PRoCEEDIngs oF THE WEbInaR HELD aT ELTE FaCULTy oF LaW In 2021
sáRa HUngLER (ed)
sá R a H Ung LE R
(ed)th e in sep ar ab le tr ian gl e: D em oc ra cy , r ul e o f la w an D H um an ri gH ts i n t He eu
hungler_borito.indd 1 2021.09.10. 12:26:37