EU accession to the ECHR:practical implications

Marie Demetriou QC

27 November 2014

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Brick Court Chambers

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3 main practical consequences

New grounds of substantive challenge (to the extent that the ECHR is different to

the EU Charter of Fundamental Rights)

A further remedy (before the Strasbourg Court)

Impact on case-law (convergence between EU CFR/ general principles/ ECHR)

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Current position

Limited ability to challenge EU measures before Strasbourg Court. Judicial

review is ‘indirect’.• See: Matthews v UK• Bosphorus v Ireland – “manifestly deficient” protection of human rights• Connolly v 15 Member States• Michaud v France

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Challenges to EU legislation/ acts of

institutions

Post accession: will be able to challenge EU legislation/ measures directly

Ultimate recourse to Strasbourg Court but ‘domestic remedies’ must first be

exhausted.

What does that mean?• Direct challenges; if standing to challenge directly must do so first before

EU Courts;• Indirect challenges; first exhaust remedies in national courts. If there has

not been a reference for a preliminary ruling, CJEU will first be given opportunity to consider the case

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National measures based on EU measures

New opportunities to:• Mount indirect challenge to the EU measures on ECHR grounds• Argue that the EU measure must be interpreted in light of the ECHR

Coherence to multi-targeted challenge

Strasbourg will be ultimate arbiter

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Impact on case-law

Convergence because greater cross-fertilisation between Strasbourg /

Luxembourg;

EU Courts already purport to apply Strasbourg jurisprudence

There is also ‘reverse effect’, see Kadi and Nada

Convergence will speed up

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Effect on English courts: a case-study

Dublin II returns

MSS v Belgium and Greece – transfer from Belgium to Greece under Dublin Reg

had infringed Art 3 ECHR

Cases 411 etc/10 NS v SSHD, 21 Dec ‘11• Duty on M Sts not to return asylum seeker to ‘responsible’ state if there

existed “a systemic deficiency in the asylum procedure and in the reception conditions of asylum seekers” in the responsible State

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EM(Eritrea) v SSHD

Is the existence of “systemic deficiencies” a necessary requirement

Court of Appeal: • Yes, because that’s proper interpretation of NS;• Inconsistent with Strasbourg jurisprudence;• But English courts must apply CJEU’s ruling.

Supreme Court:• No, the CJEU did not elevate ‘systemic deficiencies’ into a necessary

requirement. Nothing CJEU said was intended to deviate from the Soering test

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But now...

Case C-394/12 Abdullahi, 10 Dec ’13, at [62]:• “The only way in which the applicant for asylum can call into question [the

jurisdiction of the responsible state] is by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum” in that state.

• Where does that leave us?

Where would that leave the English courts post-accession?