European Fundamental Rights Law Literature Notes – Week 4: The ECHR and the EU
Article 6 TEU; Protocol No 8 relating to Article 6, paragraph 2 TEU; Declaration No 2 on Article 6,
paragraph 2 TEU
Article 6 TEU
1. The Union recognises the rights, freedoms, and principles set out in the Charter of Fundamental rights […],
which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way
the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter
shall be interpreted in accordance with the general provisions in Title VII of the Charter […] and with due regard
to the explanations referred to in the Charter.
2. The Union shall accede to the ECHR. Such accession shall not affect the Union’s competences as defined in
the Treaties.
3. Fundamental Rights, as guaranteed by the ECHR and as they result from the constitutional traditions
common to the Member States, shall constitute general principles of the Union’s law.
Protocol (No 8) Relating to Article 6(2) TEU on the Accession of the Union to the ECHR
Article 1
The agreement relating to the accession of the Union to the ECHR under Article 6(2) TEU shall make provision
for preserving the specific characteristics of the Union and Union law, in particular with regard to: (a) the
specific arrangements for the Union’s possible participation in the control bodies of the ECHR; (b) the
mechanisms necessary to ensure that proceedings by non-Member States and individual applications are
correctly addressed to Member States and/or the Union as appropriate.
Article 2
The agreement under Article 1 shall ensure that accession of the Union shall not affect the competences of the
Union or the powers of its institutions. It shall ensure that nothing therein affects the situation of Member
States in relation to the ECHR, in particular in relation to the Protocols thereto, measures taken by Member
States derogating from the European Convention in accordance with Article 15 thereof (derogations in times of
emergency) and reservations to the ECHR made by the Member States in accordance with Article 57 thereof
(reservations to specific Convention provisions).
Article 3
Nothing in the agreement referred to in Article 1 shall affect Article 344 TFEU (Member States shall not submit
a dispute on the interpretation or application of the Treaties to any method of settlement other than those in
the Treaties).
Declaration (No 2) on Article 6(2) of the Treaty on European Union
The Conference agrees that the Union’s accession to the ECHR should preserve the specific features of Union
law. […] [The] regular dialogue between the CJEU and the ECtHR could be reinforced when the Union accedes
to that Convention.
ECtHR, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v Ireland, Application no.
45036/98, decision of 30 June 2005
Issue: an aircraft leased by the applicant company to a Yugoslavian company was impounded in 1993 by the
Irish authorities under a Community Regulation giving effect to IN sanctions against the Federal Republic of
Yugoslavia.
Findings of the Court:
The Court took the view that Ireland had merely complied with its legal obligations flowing from
membership of the European Community.
Furthermore, and most importantly, it held that it was not necessary to examine whether the measure
had been proportionate to the aims pursued, given that “the protection of fundamental rights by
Community law [is] “equivalent” to that of the Convention system” (para 165). Accordingly, “the
presumption [arose] that Ireland did not depart from the requirements of the Convention when it
implemented legal obligations flowing from its membership of the European Community” (para 165).
, Lecture:
The Court ruled that a state is allowed to trust that the international organisation whose decision it is
implementing complies with the Convention or at least offers equivalent protection. From this, the
presumption of equivalent protection arises. Thus, if the Member State has no discretion, and does
nothing more than implement its obligation, it is presumed not to have violated the ECHR.
Individuals, however, need to show that there is a manifest deficiency in the protection of their
fundamental rights.
ECtHR, Michaud v France, Application no. 12323/11, decision of 6 December 2012
Issue: The case concerned the obligation on French lawyers to report their “suspicions” regarding possible
money laundering by their clients. Among other things, the applicant submitted that this obligation, which
resulted from the transposition of European directives, was in conflict with Article 8 (right to respect for private
life) of the Convention, which protects the confidentiality of lawyer-client relations.
Findings of the Court:
The Court held that it was required to rule on this question, since the “presumption of equivalent
protection” was not applicable in this case.
The Court further held that there had been no violation of Article 8 (right to respect for private life) of
the Convention in the present case. It stressed the importance of the confidentiality of lawyer-client
relations and of legal professional privilege.
It considered, however, that the obligation to report suspicions pursued the legitimate aim of
prevention of disorder or crime, since it was intended to combat money laundering and related
criminal offences, and that it was necessary in pursuit of that aim.
On the latter point, it held that the obligation to report suspicions, as implemented in France, did not
interfere disproportionately with legal professional privilege, since lawyers were not subject to the
above requirement when defending litigants and the legislation had put in place a filter to protect
professional privilege, thus ensuring that lawyers did not submit their reports directly to the
authorities, but to the president of their Bar association.
Lecture:
The Court ruled that Bosphorus did not apply, since the Directive did not leave discretion to France.
However, the applicant had asked for a preliminary reference to be made by the highest French court,
against whose decisions there is no appeal. This meant that under EU law, it had the obligation to
make a reference, which it had not done. This, the ECtHR ruled was problematic because it was
contrary to the Bosphorus doctrine.
In turn, this meant that a second condition arisen, in order for this doctrine to apply: the legal system
must have been exhausted.
ECtHR, M.S.S. v Belgium and Greece, Appl. No. 30696/09, judgment of 21 January 2011
Issue: The applicant in question was an Afghan national who entered the EU via Greece before arriving in
Belgium, where he applied for asylum. In accordance with the Dublin II Regulation, the Belgian Aliens Office
asked the Greek authorities to take responsibility for the asylum application. The applicant complained in
particular about the conditions of his detention and his living conditions in Greece, and alleged that he had no
effective remedy in Greek law in respect of these complaints. He further complained that Belgium had exposed
him to the risks arising from the deficiencies in the asylum procedure in Greece and to the poor detention and
living conditions to which asylum seekers were subjected there. He further maintained that there was no
effective remedy under Belgian law in respect of those complaints.
Findings of the Court:
In respect of Belgium:
o There had been a violation of Article 3 (prohibition of degrading treatment) ECHR because the
Belgian authorities had wrongly assumed that the applicant would bee treated in conformity
with the Convention standards and should have verified how the Greek authorities applied
their asylum legislation in practice.
Article 6 TEU; Protocol No 8 relating to Article 6, paragraph 2 TEU; Declaration No 2 on Article 6,
paragraph 2 TEU
Article 6 TEU
1. The Union recognises the rights, freedoms, and principles set out in the Charter of Fundamental rights […],
which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way
the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter
shall be interpreted in accordance with the general provisions in Title VII of the Charter […] and with due regard
to the explanations referred to in the Charter.
2. The Union shall accede to the ECHR. Such accession shall not affect the Union’s competences as defined in
the Treaties.
3. Fundamental Rights, as guaranteed by the ECHR and as they result from the constitutional traditions
common to the Member States, shall constitute general principles of the Union’s law.
Protocol (No 8) Relating to Article 6(2) TEU on the Accession of the Union to the ECHR
Article 1
The agreement relating to the accession of the Union to the ECHR under Article 6(2) TEU shall make provision
for preserving the specific characteristics of the Union and Union law, in particular with regard to: (a) the
specific arrangements for the Union’s possible participation in the control bodies of the ECHR; (b) the
mechanisms necessary to ensure that proceedings by non-Member States and individual applications are
correctly addressed to Member States and/or the Union as appropriate.
Article 2
The agreement under Article 1 shall ensure that accession of the Union shall not affect the competences of the
Union or the powers of its institutions. It shall ensure that nothing therein affects the situation of Member
States in relation to the ECHR, in particular in relation to the Protocols thereto, measures taken by Member
States derogating from the European Convention in accordance with Article 15 thereof (derogations in times of
emergency) and reservations to the ECHR made by the Member States in accordance with Article 57 thereof
(reservations to specific Convention provisions).
Article 3
Nothing in the agreement referred to in Article 1 shall affect Article 344 TFEU (Member States shall not submit
a dispute on the interpretation or application of the Treaties to any method of settlement other than those in
the Treaties).
Declaration (No 2) on Article 6(2) of the Treaty on European Union
The Conference agrees that the Union’s accession to the ECHR should preserve the specific features of Union
law. […] [The] regular dialogue between the CJEU and the ECtHR could be reinforced when the Union accedes
to that Convention.
ECtHR, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v Ireland, Application no.
45036/98, decision of 30 June 2005
Issue: an aircraft leased by the applicant company to a Yugoslavian company was impounded in 1993 by the
Irish authorities under a Community Regulation giving effect to IN sanctions against the Federal Republic of
Yugoslavia.
Findings of the Court:
The Court took the view that Ireland had merely complied with its legal obligations flowing from
membership of the European Community.
Furthermore, and most importantly, it held that it was not necessary to examine whether the measure
had been proportionate to the aims pursued, given that “the protection of fundamental rights by
Community law [is] “equivalent” to that of the Convention system” (para 165). Accordingly, “the
presumption [arose] that Ireland did not depart from the requirements of the Convention when it
implemented legal obligations flowing from its membership of the European Community” (para 165).
, Lecture:
The Court ruled that a state is allowed to trust that the international organisation whose decision it is
implementing complies with the Convention or at least offers equivalent protection. From this, the
presumption of equivalent protection arises. Thus, if the Member State has no discretion, and does
nothing more than implement its obligation, it is presumed not to have violated the ECHR.
Individuals, however, need to show that there is a manifest deficiency in the protection of their
fundamental rights.
ECtHR, Michaud v France, Application no. 12323/11, decision of 6 December 2012
Issue: The case concerned the obligation on French lawyers to report their “suspicions” regarding possible
money laundering by their clients. Among other things, the applicant submitted that this obligation, which
resulted from the transposition of European directives, was in conflict with Article 8 (right to respect for private
life) of the Convention, which protects the confidentiality of lawyer-client relations.
Findings of the Court:
The Court held that it was required to rule on this question, since the “presumption of equivalent
protection” was not applicable in this case.
The Court further held that there had been no violation of Article 8 (right to respect for private life) of
the Convention in the present case. It stressed the importance of the confidentiality of lawyer-client
relations and of legal professional privilege.
It considered, however, that the obligation to report suspicions pursued the legitimate aim of
prevention of disorder or crime, since it was intended to combat money laundering and related
criminal offences, and that it was necessary in pursuit of that aim.
On the latter point, it held that the obligation to report suspicions, as implemented in France, did not
interfere disproportionately with legal professional privilege, since lawyers were not subject to the
above requirement when defending litigants and the legislation had put in place a filter to protect
professional privilege, thus ensuring that lawyers did not submit their reports directly to the
authorities, but to the president of their Bar association.
Lecture:
The Court ruled that Bosphorus did not apply, since the Directive did not leave discretion to France.
However, the applicant had asked for a preliminary reference to be made by the highest French court,
against whose decisions there is no appeal. This meant that under EU law, it had the obligation to
make a reference, which it had not done. This, the ECtHR ruled was problematic because it was
contrary to the Bosphorus doctrine.
In turn, this meant that a second condition arisen, in order for this doctrine to apply: the legal system
must have been exhausted.
ECtHR, M.S.S. v Belgium and Greece, Appl. No. 30696/09, judgment of 21 January 2011
Issue: The applicant in question was an Afghan national who entered the EU via Greece before arriving in
Belgium, where he applied for asylum. In accordance with the Dublin II Regulation, the Belgian Aliens Office
asked the Greek authorities to take responsibility for the asylum application. The applicant complained in
particular about the conditions of his detention and his living conditions in Greece, and alleged that he had no
effective remedy in Greek law in respect of these complaints. He further complained that Belgium had exposed
him to the risks arising from the deficiencies in the asylum procedure in Greece and to the poor detention and
living conditions to which asylum seekers were subjected there. He further maintained that there was no
effective remedy under Belgian law in respect of those complaints.
Findings of the Court:
In respect of Belgium:
o There had been a violation of Article 3 (prohibition of degrading treatment) ECHR because the
Belgian authorities had wrongly assumed that the applicant would bee treated in conformity
with the Convention standards and should have verified how the Greek authorities applied
their asylum legislation in practice.
