5.2.1 Complementarity and Structural Focus

On the one hand, Review Bodies advance access to justice through two distinct features. Review Bodies complement but do not replace ‘classic’ judicial protection. Today, Review Bodies are a widespread albeit imperfect accountability mechanism complementary to actions in front of EU courts.Footnote ³ Review Bodies are complementary in the sense that formally they are neither courts nor block the path to judicial review.Footnote ⁴ Nonetheless, the practice of some Review Bodies, namely Boards of Appeal, could be described as adjudication, even though they are not ‘courts’ in the sense of EU constitutional law.Footnote ⁵ All Review Bodies are designed as ‘independent’ institutions yet belong, in one way or another, to the typical ecosystem of a contemporary administrative state.Footnote ⁶ Generally speaking, Review Bodies have less formal authority than courts, meaning most of them cannot ‘bindingly decide’ or offer immediate ‘relief’. This weaker formal authority then impairs Review Bodies’ public authority (Boards of Appeal might be an exception here, see below). However, differences from the judicial process also offer advantages. Often, Review Bodies are specialised adjudicators, have, or at least claim to have, additional expertise compared to courts, and may entertain a more lenient standing regime than courts.Footnote ⁷

Second, Review Bodies focus on structure and not (only) on legality.Footnote ⁸ Whereas courts often focus on the legality of specific executive actions in individual cases, Review Bodies have a broader, perhaps at times even better, perspective on the root causes of problematic executive behaviour. Although most Review Bodies respond to individualised complaints, their review often appears more focused on the structural practices, set-ups, and circumstances that lead to fundamental rights violations in the first place. This is important. Serious and repeated fundamental rights violations do not emerge primarily from isolated, unusual incidents. Rather, such offences reflect deeper-rooted problems entrenched in governance architectures, behavioural patterns, and organisational set-ups.Footnote ⁹ Against that backdrop, Review Bodies’ focus on structure appears crucially important to improve EU executive governance. EU courts, aching under heavy caseloads, may, sometimes, underestimate how strongly the effective protection of fundamental rights depends on structural factors like organisation, personnel, and funding.

5.2.2 Functional Differentiation

On the other hand, Review Bodies reflect the ongoing functional differentiation of EU law.Footnote ¹⁰ Europe faces inherently globalised and transnational challenges that cannot be effectively met domestically. Markets, digitisation, the climate crisis – the key to, somehow, successfully approaching these issues lies, also, in EU law. Thus, EU law will deal with more and more issues, each more complicated than the next. ‘Dealing’ with these issues then regularly spawns complex normative material and novel institutions.Footnote ¹¹ Between the 1990s and the late 2010s, inspired by New Public Management and alongside the overall ascent of ‘governance’, these novel institutions were typically ‘agencies’.Footnote ¹² However, agencies still need accountability, especially when vested with the power to make legally binding decisions in highly complex and financially sensitive matters. Thus, to protect (fundamental) rights and control these agencies, Review Bodies beyond courts became, in one form or another, the ‘tool of choice for European lawmakers’.Footnote ¹³ As a rule of thumb, Review Bodies emerge wherever the EU exerts administrative power over individuals or legal persons. The more specialised an area, the more likely we will encounter a Review Body.

In principle, that is a very positive development. The very existence of Review Bodies points to a crucial legitimacy asset of the European Union: self-control.Footnote ¹⁴ Even as the Union’s administrative power diversifies and complicates, it does not do so in an ‘uncontrolled’ manner as some demagogues or critics might argue. In contrast, the Union’s executive expansion remains chaperoned by various guardians, some in Luxembourg, others spread all over the continent.

5.2.3 Tripartite Government

Further, the functional differentiation of the Union’s executive power has a crucial but undertheorised side effect: it challenges a traditional reading of the notion of tripartite government.Footnote ¹⁵ Most Review Bodies do not ‘organically’ fit into broad categories like executive or judicial. Expressed in the reverse, Review Bodies’ low public profile is partly owing to the fact that they challenge these widespread ‘organic’ understandings of the separation of powers in the European Union. This aspect is particularly relevant for Boards of Appeal. They adjudicate but are nonetheless not formal courts. Intuitively, many still conceptualise tripartite government, or, in other words, the separation of powers, as a distinct separation of institutions or, to borrow from Koen Lenaerts, ‘organs’ (i.e., parliament, ministerial bureaucracy, courts).Footnote ¹⁶ Review Bodies transgress such a model of distinct branches of government. For example, Review Bodies may be not formally judicial but nonetheless adjudicate. Equally, they may be ‘organically’ executive but (largely) independent of political control. However, as Lenaerts argued, ‘an organic understanding of the separation of powers is not practicable in the European Community.… In view of this, the understanding of the separation of powers principle should not in the first place be an organic one, but a functional one’.Footnote ¹⁷ This is important. Review Bodies offer accountability and, at least in the case of Boards of Appeal, do so in a quintessentially adjudicative fashion. The fact that no BoA is considered a court under Union law seems therefore puzzling. Consequentially, many argue that BoAs would be ‘administrative in nature’ and are ‘not judicial bodies’ because, inter alia, many currently do not live up to the standards established by the right to an effective remedy as enshrined in Article 47 Charter of Fundamental Rights of the European Union (CFR).Footnote ¹⁸ From an institutionalist – or ‘organic’ to use Koen Lenaert’s words – reading of the principle of tripartite government this makes sense.

However, simultaneously, the same string of literature considers BoAs increasingly ‘judicialized’.Footnote ¹⁹ Only a functionalist perspective explains what otherwise appears to be a contradiction. On the one hand, judicial functions may very well be embedded into administrative organisational contexts. From a comparative and historical perspective, this is even the norm rather than the exception. Many legal regimes feature guardian institutions that are not part of the judiciary but nonetheless adjudicate executive power.Footnote ²⁰ In turn, judicial review of administrative action historically developed ‘organically’ (largely) out of the executive branch and not from courts or the judicial branch, the example of France being the most illustrious one.Footnote ²¹ Therefore, conceptualising the overall ‘nature’ of a phenomenon in stylised categories like ‘administrative’ or ‘judicial’ risks obscuring rather than elucidating the phenomenon’s actual operation.Footnote ²² On the other hand, the argument that a Review Body cannot be ‘judicial’ because it does not sufficiently comply with (the CJEU’s reading of) the criteria of effective remedies in Article 47 CFR can be turned on its head. Maybe BoAs indeed operate in quite a ‘judicial’ way – hence the inevitable discussions about ‘judicialization’ – but are imperfect and need reform to comply with their normative goal, that is, providing an effective remedy. Simply put, non-compliance with Article 47 CFR does not render BoAs ‘administrative in nature’ but imperfect to fulfil their adjudicative function.

5.2.4 The Peril of Ceremony

Lastly, Review Bodies are important yet ambivalent in terms of legitimacy as they cloak the Union’s burgeoning transnational executive in publicly legitimising notions of accountability and rights protection. Review Bodies reflect increasingly institutionalised narratives of ‘accountability’, ‘transparency’, and ‘good governance’.Footnote ²³ Therefore, Review Bodies have diffused as a ‘quick fix’ to accountability deficits and, by extension, legitimacy deficits in the EU executive.Footnote ²⁴

However, the extent to which Review Bodies indeed deliver on their promises of expertise, independence, and ‘(administrative) justice’ is not always clear. Review Bodies’ faint authority, reliance on non-binding measures, relatively scant funding, and low public profile might impede their ability to effectively identify and weigh into the root causes of recurring offences. Then, Review Bodies would not complement judicial accountability but remain timid bystanders. In such a case, the very existence of a Review Body might even thwart long-term improvement, as an existing but ultimately ‘toothless’ Review Body might bolster the false impression of accountability. Submitting complaints to a Review Body could then be understood as mere ceremony, without real-world effects.Footnote ²⁵ Thereby, Review Bodies might disguise scarcely accountable, rights-endangering governance. For example, the recent trend to establish ‘Fundamental Rights Officers’ in the area of migration could be criticised as partly ceremonial. For more than a decade now, we have been aware of the ‘systemic’ problems in some Member States and, arguably, also the Union’s own executive structures.Footnote ²⁶ Establishing a new but rather weak institution, the FROs, to make serious and systemic fundamental rights abuses more transparent instead of overhauling the structures that lead to these offences, might have been the only politically feasible compromise. However, from a normative perspective, such Realpolitik may end up delivering only a ceremonial mimicry of justice but neither structural improvement nor effective remedy in individual cases.

The risks of that trend are palpable. Setting up new, perhaps merely ceremonial institutions instead of addressing deeper rooted governance problems perpetuates, rather than remedies structural flaws. Eventually, this may trade the public appearance of accountability and rights protection for the erosion of substantive legitimacy, which hinges upon effective – and not merely ceremonial – accountability and rights protection.

5.2.5 Interim Conclusion

To summarise, Review Bodies exist in almost any administrative context. In court-focused systems like the EU, they reflect functional differentiation, complementing the accountability mechanisms provided by EU courts through offering more specialised, more structure-focused, or more accessible forums to challenge the Union’s burgeoning executive power. Yet some Review Bodies may be more of a ‘quick fix’, responding to current discourses about transparency and accountability instead of establishing stringent protection of fundamental rights. Review Bodies with weak authority in particular risk remaining ceremonial actors advancing the perception but with no actual practice of legitimating accountability and rights protection. Today, Review Bodies are an ambivalent new normal in a Union that increasingly transcends its traditional executive federalism and incrementally morphs into a multifaceted administrative behemoth.

5.3.1 The European Ombudsman

The European Ombudsman, established in 1995, follows the most generalist approach of all Review Bodies presented here.Footnote ²⁷ According to Article 228(1) Treaty on the Functioning of the European Union (TFEU), the ‘European Ombudsman’ shall investigate and remedy ‘maladministration’ by the European Union. Individuals may file complaints with the Ombudsman to investigate specific administrative proceedings. Further, the Ombudsman may conduct investigations of its own, called ‘own initiative inquiries’ as well as ‘strategic inquiries’.Footnote ²⁸ The latter two often focus on suspected structural problems such as Frontex’s handling of transparency and accountability.Footnote ²⁹ The Ombudsman’s key advantage vis-à-vis most other Review Bodies is its welcoming standing regime.Footnote ³⁰ While other Review Bodies require Plaumann-inspired, neatly individualised standing requirements, the Ombudsman is open to complaints from almost anyone dealing with the EU administration.Footnote ³¹ Further, the Ombudsman’s mandate is also general in the temporal dimension. While most individual complaints seek to remedy past maladministration, the Ombudsman, ex officio, may also investigate more political, ongoing matters of general concern.Footnote ³²

5.3.2 Boards of Appeal

The biggest and most diverse group of Review Bodies beyond courts are Boards of Appeal (for short, as introduced above, ‘BoAs’).Footnote ³³ Terminologically, ‘Boards of Appeal’ is an imperfect umbrella term as most but not all such bodies go by that name.Footnote ³⁴ To avoid overly complicating things, we will however stick to the term. In a broad sense, Boards of Appeal are specialised, independent bodies that review agency actions vis-à-vis individual and legal persons.Footnote ³⁵ Although their precise authority, mandate, and institutional practices differ, all Boards of Appeal offer appellants an independent second look at the facts and law of each case.Footnote ³⁶ Typically, BoA decisions are legally binding.Footnote ³⁷

Recent reforms of the statute of the Court of Justice elevated BoAs’ institutional status. Since 2019, the Court of Justice does not hear cases reviewed already by the ‘independent board(s) of appeal’ of four specified agencies and the General Court, unless they touch upon foundational issues. Thereby, four BoAs – namely those attached to the European Union Intellectual Property Office, the Community Plant Variety Office, the European Chemicals Agency, and the European Union Aviation Safety Agency – effectively became first instance adjudicators below the General Court. However, for the time being, the EU has refrained from rebranding these BoAs as specialised courts according to Article 257 TFEU.Footnote ³⁸ Much in the same vein, the General Court underscored the adjudicative function of BoAs in 2019, when it applied Article 47 CFR instead of the much lower standards of Article 41 CFR to a BoA for the first time.Footnote ³⁹ In the medium term, this might trigger procedural reforms at the BoAs. Whether those will be for the better remains to be seen. Some BoAs follow an inquisitorial model, which is typical (and sensible) for adjudicative review of administrative actors but at odds with the otherwise adversarially structured EU judicial process.Footnote ⁴⁰

5.3.3 Fundamental Rights Officers

The newest and perhaps most peculiar type of Review Bodies are Fundamental Rights Officers (for short, as introduced above, ‘FROs’). FROs are attached to the two agencies dealing with migration, namely the European Border and Coast Guard Agency, commonly known as Frontex, and the European Union Agency for Asylum (EUAA), which is a vastly expanded version of the European Asylum Support Office.Footnote ⁴¹ Fundamental Rights Officers emerged as new institutions in the 2010s in response to increasing concerns about the fundamental rights record of the Union’s border regime.Footnote ⁴² In the law and ‘governance’ of asylum in and migration to Europe, traditional ‘executive federalism’ gave way to ad hoc, make-shift arrangements veiled by diffused responsibilities, informality, and externalisation.Footnote ⁴³ One result of these tendencies is an overall lack of properly working review mechanisms, especially at the EU border itself.Footnote ⁴⁴

FROs shall be ‘independent in the performance of his or her duties’ and ‘shall be responsible for ensuring the Agency’s compliance with fundamental rights in all its activities’.Footnote ⁴⁵ FROs’ existence reflects the – tacit – acknowledgement that there is a structural problem with fundamental rights abuses in European migration governance.

Apart from overseeing and advising their respective agencies in fundamental rights matters, FROs are ‘responsible for handling’ complaints by individuals who are adversely affected by the respective agency.Footnote ⁴⁶ Remarkably, the Frontex FRO is even responsible for helping the agency to ‘set up and further develop’ its complaint mechanism.Footnote ⁴⁷ That is potentially a significant divergence from common practice in other fields, where one would assume that procedures to protect fundamental rights are thoroughly detailed in law and not incrementally developed in internal rules, guidelines, and practices.

5.4.1 Orientation towards Public or Individual Interest

The first axis distinguishes between Review Bodies oriented mainly towards protecting individual interests and those looking out more for the public interest. Albeit remedying individual interests advances the rule of law and, thereby, also the public interest, distinguishing individual interest–oriented bodies from public interest–oriented bodies offers analytical value. In particular, variations in standing regimes are best understood as tailored towards the needs of reviewing public or individual interests.Footnote ⁴⁸ For example, BoAs review individual agency decisions vis-à-vis individual natural or legal persons. In these procedures, BoAs may nullify the agency decision and, depending on the BoA’s authority, even replace it with their own decision. Such a procedure serves, predominantly, individual interests, that is, the exercise of property rights. Because of this individual interest orientation, standing requirements before Boards of Appeal reflect those before formal EU courts.Footnote ⁴⁹ In contrast, European Ombudsman proceedings, even when initiated by individual complaints, generally also look towards improving the administrative procedures that led to individual instances of maladministration in the first place. Since the European Ombudsman cannot nullify or otherwise bindingly interfere with the EU executive but seeks to generally advance good administration, standing requirements to file a complaint to the European Ombudsman are very lenient: any EU citizen or resident may file complaints about any ‘instance of maladministration’ by the EU.Footnote ⁵⁰

The Fundamental Rights Officers operate somewhere in between these two positions. On the one hand, FROs’ main task is to advise and oversee their respective agency’s fundamental rights track record. Their oversight is independent of individual petitions and is more reminiscent of the Fundamental Rights Agency’s mandate.Footnote ⁵¹ On the other hand, Fundamental Rights Officers are also ‘responsible for handling complaints’ vis-à-vis the agencies.Footnote ⁵² Against Frontex, such complaints may be filed by ‘anyone who is directly affected’ by the ‘actions or failure to act on the part of staff involved in [e.g.] a joint operation’.Footnote ⁵³ Many such operations aim to remove or exclude individuals from EU territory. Although this might not formally exclude those individuals from EU jurisdiction, physical absence from EU territory complicates or practically prevents the exercise of EU fundamental rights.Footnote ⁵⁴ Hence, the complaint mechanisms’ practical feasibility remains questionable. In 2021, only twenty-seven complaints were filed, only six of which were deemed admissible.Footnote ⁵⁵

5.4.2 Authority and Measures

Perhaps the most decisive characteristic of each Review Body is its authority. Authority is important to effectively remedy fundamental rights violations and is closely related to the type of measures a Review Body takes. The introduction anticipated that, typically, we consider courts to be the guardians of fundamental rights. Consequently, the typical measure to remedy fundamental rights violations would be a judgment, that is, a legally binding normative act issued by a judicial institution to decide an individual case. However, courts already operate with various other normative tools, such as settlements or more structure-oriented forms of judicial control.Footnote ⁵⁶ Since most Review Bodies cannot adjudicate, BoAs being again the exception, the European Ombudsman or Fundamental Rights Officers use various tools to exert oversight and (attempt to) remedy fundamental rights violations. Since the Review Bodies presented here complement the Union’s judicial process, their measures are often distinctly different to those obtainable in court. Nevertheless, we shall use a court judgment as a reference point to illustrate the kinds of measures Review Bodies might take.

We begin with those bodies that appear like the EU courts’ extended family: Boards of Appeal. BoAs share many characteristics with ‘classic’ (whatever that means) judicial institutions. Often conceptualised as ‘quasi-judicial’, many Boards of Appeal are vested with the authority to issue legally binding decisions.Footnote ⁵⁷ Depending on the respective BoA’s procedural framework, its decisions may nullify or entirely replace agency decisions. However, in practice, BoAs’ authority varies greatly.Footnote ⁵⁸ Although various specialised Review Bodies have emerged in EU governance, only some have generated meaningful amounts of case law over the years, while others show only a very marginal, perhaps even declining influx of cases.

One particularly peculiar member of that extended family is the ‘Administrative Board of Review’ that oversees the European Central Bank’s supervisory function. Just like BoAs, the Administrative Board of Review offers independent, specialised review.Footnote ⁵⁹ However, unlike ‘classic’ Boards of Appeal, the Administrative Board of Review only ‘express[es] an opinion’ that is not legally binding.Footnote ⁶⁰ Nonetheless, one could argue that Administrative Board of Review decisions have normative influence as, on the one hand, the CJEU relies on them in its decisions and, on the other hand, the expertise and independence of Administrative Board of Review members lends a certain authority even to non-binding ‘opinions’.Footnote ⁶¹ Further, neither the Administrative Board of Review’s deliberations nor its decisions are public.Footnote ⁶² These procedural and institutional arrangements again highlight the overall thrust towards functional differentiation – perhaps even fragmentation – in EU administrative law.Footnote ⁶³ While confidentiality and non-bindingness appear questionable from an overarching rule of law perspective, they might be justified for practical necessity and the specific organisational requirements for effective financial oversight.Footnote ⁶⁴

Now we leave the extended family of courts. Except for BoAs, the Review Bodies presented here issue normative material that is formally non-binding. Hence, we leave the realm of adjudication behind us and leap towards the complex – some might say weaker – authority of recommendations, guidelines, reports, and the like. The other Review Bodies studied here, the Ombudsman and Fundamental Rights Officers, are more on this ‘weaker’ side of the axis. However, given their expertise, non-binding normative material may still have some degree of authority. That authority is best understood as ‘relative’ to the legitimacy assets (e.g., legal bindingness, expertise, publicity, etc.) each body mobilises.Footnote ⁶⁵

We start with Fundamental Rights Officers. FROs are relatively novel institutions, attached to the reformed and expanded Frontex as well as the EU Agency for Asylum.Footnote ⁶⁶ FROs protect fundamental rights in the migration context. However, arguably inspired by the European Ombudsman and, perhaps, the Fundamental Rights Agency, FROs focus more on documenting structural governance problems than reviewing or remedying individual grievances. One key element of the Frontex FRO’s practice is situational embeddedness. The FRO, represented by observing and advising staffers, the so-called Fundamental Rights Monitors, follows EU agencies and Member States to the field.Footnote ⁶⁷ Fundamental Rights Monitors could be described as the eyes and ears of the FRO and ‘shall constantly assess the fundamental rights compliance of operational activities, provide advice and assistance in that regard and contribute to the promotion of fundamental rights’ at the European borders.Footnote ⁶⁸

Although FROs form part of the agency’s ‘complaint handling mechanisms’, they only review the ‘admissibility’ and not the merits of complaints against agency behaviour.Footnote ⁶⁹ Admissible complaints are only ‘forward[ed]’ to the agency.Footnote ⁷⁰ Instead of remedying complaints, FROs only ‘register and ensure follow-up by the Agency’.Footnote ⁷¹ In essence, FROs’ authority to ‘handl[e]’ individual complaints means to distribute but not to remedy complaints.Footnote ⁷² Further, the Frontex FRO at least faces continuing challenges in the field. For example, in one instance, Member State authorities simply deleted potentially incriminating camera recordings that the FRO had requested as evidence.Footnote ⁷³ Thus, the FRO’s slim operational authority might endanger the Frontex FRO, and their team’s ability to fulfil their mandate, which is to ‘be responsible for handling complaints … in accordance with the right to good administration’.Footnote ⁷⁴

Further, apart from complaints filed by affected individuals, the Frontex FRO also handles an internal complaint mechanism, called ‘serious incident reporting’.Footnote ⁷⁵ In simple terms, the serious incident reporting scheme enables people working for the participating actors – especially FRO staffers that observe agency and Member State action in the field, so-called fundamental rights monitors – to report fundamental rights violations committed by Frontex or co-operating state actors.Footnote ⁷⁶ So far, roughly one serious incident per week is reported (sixty-two in 2021, a stark increase from only ten in 2020).Footnote ⁷⁷ However, the serious incident reporting scheme’s start has been bumpy. Several actors, especially Member States, flat-out rejected the accuracy of reported fundamental rights violations with the argument that said violations would be ‘incompatible with applicable procedures governing their operational activities’.Footnote ⁷⁸ Further, the FRO highlighted that Frontex’s operational staff (border guards etc.) had an ‘inhibition threshold’ to report fundamental rights violations.Footnote ⁷⁹

Crucially, in the migration context, informalisation, tacit ignorance of fundamental rights abuses, and diffused responsibilities of Member States, EU actors, and, as the Frontex FRO ominously calls it, other ‘assets’, pose a challenge to fundamental rights of their own.Footnote ⁸⁰ Any kind of review only works if practice – like a push-back – links to responsibility.Footnote ⁸¹ That link is not a legalist formality. As Melanie Fink showed in painstaking detail, EU agencies and Member States have ‘far-reaching possibilities to influence the course of action’ at the European borders.Footnote ⁸² Similar things could be said about the EUAA and its ‘assistance’ in status determination. Inevitably, this influence entails legal responsibility. Obscuring attribution and severing legal and political links between legitimised actors and, perhaps, illegitimate actions would be a dangerous experiment.

Fundamental Rights Officers are hardly the silver bullet against structural flaws nestled within the EU’s migration regime. Quite the contrary, installing predominantly transparency-oriented bodies that lack the authority to grant relief only highlights that structural problems exist – not that a solution has been found. Therefore, that the EU decided to invest considerable funds (two million Euro in 2021) and personnel (between sixty and a hundred people) in the task of making Frontex more fundamental rights–sensitive invites simultaneously criticism and praise. It could be criticised as a mere ceremonial fig leaf, signalling that the problem is taken care of. While the actors who should take care of the problem, the FRO and its monitors, lack meaningful authority to remedy complaints or weigh into abusive practices.Footnote ⁸³

However, perhaps, a fault confessed is half redressed. FROs’ potential lies in identifying structural problems that lead to repeated fundamental rights violations and recommending possible solutions. For example, in its 2021 annual report, the Frontex FRO assessed ‘serious fundamental rights concerns’ in six EU Member States and one co-operating state (Albania).Footnote ⁸⁴ Further, the Frontex FRO identifies – in broad language, but nonetheless – structural practices that lead to repeated fundamental rights violations by the agency itself and Member States. Such structural practices range from ‘a lack of female officers deployed in almost all areas’, to a lack of translators, or ‘limited visibility … of the Complaints Mechanism’.Footnote ⁸⁵ Further, the Frontex FRO explicitly criticises the ‘risk’ that ‘Frontex staff and assets’ are involved in ‘illegal individual or collective expulsions of migrants’, especially at the Greek and Bulgarian border.Footnote ⁸⁶ Further, the FRO directly criticises ‘collective expulsions of migrants and the violation of the non-refoulement principle by Lithuanian border guards’.Footnote ⁸⁷ In that context, the body also laments that Frontex ‘risk(s)’ being complicit through a ‘failure to act’.Footnote ⁸⁸ None of this is news. Yet, as a much-needed, more fundamental rights–oriented overhaul of the EU asylum complex appears politically impossible, the FROs might offer bits and pieces of transparency and incentives for incremental reforms from within. Crucially – but from a transparency perspective perhaps problematically – the FRO’s influence comes not via grand reports or naming and shaming. Instead, as the Frontex FRO put it in a conversation with the author, they seek to advance a fundamental rights–oriented ‘trajectory of cultural changes’ within Frontex.Footnote ⁸⁹

That being said, the European Agency for Asylum got its very own FRO as part of a major institutional reform in 2022. Once fully operational, the EUAA will be by far the largest EU agency in terms of workforce and, arguably, fundamental rights exposure. However, its FRO lacks many of the Frontex FRO’s institutional abilities. The EUAA regulation does not explicitly provide for a serious incident reporting scheme, nor does it offer Fundamental Rights Monitors, i.e. ‘eyes and ears’ of the FRO on the ground. Presumably, the EUAA will not engage in physical border protection like Frontex. The EUAA focuses more on the bureaucratic side of handling asylum requests.Footnote ⁹⁰ Therefore, the risk for fundamental rights violations like physical push-backs or collective expulsions may be smaller for the EUAA compared to Frontex. However, the EUAA’s powers are only vaguely delineated. The agency shall provide ‘operational and technical assistance’ to the Member States to handle requests for ‘international protection’.Footnote ⁹¹ How exactly the EUAA’s ‘operational and technical assistance’ or ‘facilitation’ will manifest remains unclear.Footnote ⁹² Given the thrust towards informalisation and lack of transparency, such forms of administrative ‘assistance’ and ‘facilitation’ might risk eroding fundamental rights guarantees.Footnote ⁹³ For example, we learned from Mariana Gkliati’s empirical work that the Appeal Committees, which dealt with appeals by individuals stranded on Greek islands in 2016 and 2017, often transferred their reasoning ‘word-by-word from one decision to [an]other, even when the committees are composed of different members’.Footnote ⁹⁴ Such habits and shortcuts may be inevitable in large administrative and judicial operations (highlighting, again, how similar judicial and administrative practices often are).Footnote ⁹⁵ However, review degenerating to mere rubber-stamping would violate the individual’s fundamental rights to an individual status determination envisaged by Article 18 CFR and the 1951 Geneva convention and its 1967 protocol.Footnote ⁹⁶ Such rubber-stamping practices would epitomise the kind of structural and organisational problems that Review Bodies can identify and, through expertise and advice, perhaps help remedying. That the EUAA FRO apparently lacks ‘eyes and ears’ might substantially undermine its capacity to do so.

Lastly, we turn to the authority of the Ombudsman. The Ombudsman’s general mandate to ‘uncover maladministration’ comes with the authority to issue only non-binding decisions. In turn, the Ombudsman’s decade-long presence, political gravitas, and discursive ability incrementally vested it with what could be described as political authority. In contrast to legal authority, which their recommendations lack, the Ombudsman builds largely on public pressure and strategically piggybacks political discourses. ‘Own initiative inquiries’ and ‘special reports’ in particular seldom occur in a political and discursive vacuum but reflect, lend weight to, and substantiate pre-existing concerns. Assessing the Ombudsman’s authority, therefore, should not be reduced to that of its specific recommendations but also its ability to weigh into political debates and make informed calls for change.

Further, as Krajewski noted, the Ombudsman’s non-binding and structure-focused approach constitutes perhaps the institution’s ‘greatest strength’ as it reflexively allows for broad accessibility.Footnote ⁹⁷ The Ombudsman seeks to remedy not only individual grievances but also to pierce the veil and help overcome the structural preconditions that lead to maladministration and, potentially, fundamental rights violations. To do so, the Ombudsman combines thorough legal analysis – like that exercised by EU courts – with predominantly process- and institution-focused advice.Footnote ⁹⁸ For separation of powers reasons, many courts may be reluctant to spell out specific institutional or procedural measures that would improve administrative dealings. In contrast, the Ombudsman, which is not a judicial institution, brings the necessary expertise and authority to aid administrators in effectively operationalising legal requirements.

For example, circling back to the asylum complex, the Ombudsman’s strategic inquiry into Frontex advised how Frontex should revise aspects of its organisational set-up.Footnote ⁹⁹ Much in the same vein, that the 2019 overhaul of Frontex’s founding regulation included a – however imperfect – complaint mechanism can be traced back to two strategic inquiries by the Ombudsman. Those inquiries investigate Frontex’s lack of individualised accountability mechanisms in 2012 and 2014.Footnote ¹⁰⁰ This struggle highlights both the potentials and the pitfalls of the Ombudsman’s authority. Ultimately, it was the European legislator – especially the European Parliament – and not Frontex itself that established the complaint mechanism. On its own, the Ombudsman could not ‘implement’ their recommendations. Yet, leveraging its political authority, the Ombudsman managed to infuse their ideas into the political process. Therefore, on the one hand, after several years and via the detour of the legislative overhaul, the Ombudsman’s recommendation led to structural reform. On the other hand, the now implemented complaint mechanism is far from perfect and its use negligible. Further, that Frontex (and some Member States) would ignore the two Ombudsman recommendations and then, later, as described above, only grudgingly accommodate the Ombudsman’s recommendations shows that structural change only through Review Bodies might often be an illusion. Review Bodies may be supporting actors in a broader play of accountability forums, as also including courts, parliaments, the press, and public discourse. However, as it will be argued in more detail below, Review Bodies are most efficient when teaming up with other accountability forums and contributing their specific substantive and organisational knowledge of structural governance problems.

In conclusion, we see that the legal authority of Review Bodies, except Boards of Appeal, is different – one could say weaker – than that of courts. All bodies analysed here, in one form or the other, respond to individual petitions. Yet neither the Ombudsman nor Fundamental Rights Officers can bindingly stop fundamental rights violations. However, if we take a more nuanced look, Review Bodies incrementally construe their very own authority relative to their organisational setting, public perception, and legal mandate. The measures Review Bodies use to operationalise their authority range from adjudication (BoAs) to non-binding normative material (FROs, Ombudsman), internal advice (FROs, presumably also the Ombudsman), and public pressure campaigns and political mingling (Ombudsman).

5.4.3 Expertise and Funding

The substantive and organisational knowledge of Review Bodies brings us to the last axis of this taxonomy. One of Review Bodies’ key characteristics and – if used strategically – main advantages is their expertise. Unlike EU courts, which have general jurisdiction, Review Bodies often exercise specialised jurisdiction and, therefore, employ more specialised experts than EU courts. This has two downstream effects. On the one hand, many Review Bodies have, especially when compared to courts, extra knowledge in the substantive fields they oversee.Footnote ¹⁰¹ For example, BoAs are typically staffed with people who have special knowledge of the specific regulatory field covered by their respective agency. Similarly, FROs are, at least partly, staffed with people who have a background in fundamental rights and asylum law. We may call this substantive expertise. On the other hand, Review Bodies accumulate expert knowledge about EU executive structures themselves. In other words, Review Bodies are also experts in the institutionalised practices and (in)formal habits entrenched into EU executive power. We may call this organisational expertise.

Although all Review Bodies entertain these two expertise dimensions, we may again distinguish among the actors presented here. BoAs are predominantly on the substantive expertise side of the spectrum. Even though their review also ventures into the organisational and structural aspects of their respective agencies, BoAs are designed as substantive experts in the regulatory area of their agencies.Footnote ¹⁰² Most founding regulations for agencies that feature a BoA state that board members and the, usually few, members of staff shall have the ‘necessary expertise’ to review the agency acts.Footnote ¹⁰³ A paradigmatic example is the Joint Board of Appeal of the European Supervisory Authorities. It reviews agency action regulating financial services. According to Article 58(2) of the three respective regulations, members of the Board of Appeal ‘shall be individuals of high repute with a proven record of relevant knowledge of Union law and of having international professional experience, to a sufficiently high level in the fields of banking, insurance, occupational pensions, securities markets or other financial services’.Footnote ¹⁰⁴ However, since many BoAs are rather small institutions with few (if any) full-time employees, safeguarding that expertise might not always be easy. As Krajewski noted for at least one BoA, ‘the Commission and co-legislators wrongly assumed that just one technically qualified member is capable of guaranteeing the necessary level of expertise’.Footnote ¹⁰⁵ EU agencies deal with immensely complex regulatory matters. Therefore, offering high-quality review of these matters is complex in and of itself.Footnote ¹⁰⁶ However, low funding and a small workforce might impair some BoAs’ ability to offer comprehensive expertise-based review.

Picking up the thread of funding as a necessary prerequisite for expertise, the Frontex Fundamental Rights Officer and the European Ombudsman seem to have more robust funding than at least some BoAs. For example, Frontex allocated two million Euros to ‘fundamental rights activities’ in its 2022 budget.Footnote ¹⁰⁷ According to Jonas Grimheden, then Frontex FRO, all or most of this money went to the FRO, which had a staff of roughly sixty-five people in spring 2023 but aimed at expanding to more than a hundred.Footnote ¹⁰⁸ Remarkably, in 2020, Frontex allocated no funds to ‘fundamental rights activities’ and roughly 780,000 Euros in 2021.Footnote ¹⁰⁹ That sharp increase in personnel and funding indicates at least some financial underpinning and, by extension, the workforce required to develop the Frontex FRO into a serious player for incremental improvements of European asylum governance.

Circling back to the two poles of substantive and organisational expertise, FROs are squarely in the centre. FROs intrinsically combine substantive and organisational expertise. FROs’ substantive expertise is to understand the organisational practices (and problems) at Frontex and the new Asylum Agency.Footnote ¹¹⁰ On the one hand, FROs focus on how the respective agencies conduct their operations, which gives them a thorough understanding of the agencies’ organisational practices. On the other hand, the Frontex FRO’s ‘monitors’ in particular look at this practice from a substantive fundamental rights perspective. In general, however, FROs mainly seek to make Frontex actions more transparent and, by extension, more accountable.

Lastly, the European Ombudsman leans strongly towards the organisational expertise pole. The Ombudsman’s expertise focuses exclusively on organisational expertise as its mandate is to remedy maladministration.Footnote ¹¹¹ The Ombudsman does not review the substantive accuracy of agency decisions but analyses the procedures through which decisions are made and, if needs be, whether a procedure might have endangered fundamental rights. With a budget of just over twelve million Euros and a staff of between seventy-three (permanent) and a little under a hundred (including trainees), the Ombudsman’s budget is larger than that of the FRO and most to all BoAs.Footnote ¹¹² However, mirroring the challenges of other Review Bodies, the Ombudsman’s expertise, workforce, and funding must be seen in perspective. As mentioned above, the Ombudsman has a general mandate, spanning potential maladministration by any EU actor. That is a multitudinous and chaotic universe of actors with tens of thousands of employees. From that perspective, the Ombudsman’s budget might be large relative to more specialised BoAs but still small relative to its humongous task.

Further, if the Frontex FRO expands as projected, the size of its workforce might eclipse that of the Ombudsman. This, again, provokes queries. If the workforce of the Frontex FRO and the Ombudsman are roughly the same (both between 50 and 100), and both review EU executive actors for maladministration or even fundamental rights violations, why is the Ombudsman’s budget six times that of the Frontex FRO (more than twelve million Euros compared with two million Euros)? Vice versa, what does it tell us about the state of fundamental rights at one single agency if the office overseeing said agency’s fundamental rights record employs as many people as the body overseeing the whole European Union for any kind of maladministration?

5.4.4 Interim Conclusion

The outlined taxonomy offers several key takeaways. On the one hand, Review Bodies’ authority emerges only incrementally. While courts’ authority rests on their legal power as well as their position at the cusp of our socio-cultural imaginary (remember Dworkin’s Herculean judge?), Review Bodies must build their authority from scratch. Consequentially, they also use a broader panoply of measures to oversee and control executive behaviour. Many of these measures are indirect and certainly not ‘binding’ in a legalist sense of the word. However, indirect, non-binding measures may point to the structural root causes of fundamental rights violations. That would be a crucial factor in eventually fixing those structural errors.

On the other hand, none of the Review Bodies covered here is fully convincing from an access to justice perspective. The Ombudsman does important work but some of their recommendations are ignored or watered down in the political process. Fundamental Rights Officers highlight rather than solve the grave fundamental rights problems at the Union’s governing of asylum and migration. That is not to say that FROs can do no good. Yet one cannot help but characterise FROs at least in part as ceremonial legitimation of otherwise structurally flawed practices at the Union’s borders. BoAs offer a well-established and much needed extra layer of adjudication. Nonetheless, BoAs would require and, I would argue, deserve a more prominent place in discussions about the Union’s administrative justice architecture. Lastly, all bodies appear to offer considerable expertise in their respective fields. Yet, to further advance that expertise, all bodies would arguably need more funding.

5.5.1 Teaming Up

This chapter premised that recurring fundamental rights violations reflect structural problems nestled within organisational practice. Remedying structural problems requires more than occasional judicial review. Courts focus mainly on reviewing the legality of individual acts and seldom focus on the structural forces that might drag organisations towards violating fundamental rights. Here, Review Bodies – despite their many shortcomings – have a crucial advantage. Because they are not bound by the judicial process’ narrow focus on individual legality, Review Bodies may develop a more thorough understanding of the structural issues in each governance context. In other words, Review Bodies might help individual petitioners only mediately, for example, through recommendations, investigations, and public statements (BoAs are an exception here). However, Review Bodies may be crucial in identifying and eventually reforming the structural root causes that lead to fundamental rights violations. They can do so precisely because their normative output is, usually, non-binding.

Nonetheless, effectively implementing Review Bodies’ often consultative and non-binding output hinges strongly on the goodwill of the EU institutions. Although internal communication, public recommendations, or naming and shaming may work to a degree, executive actors retain the last word over any bit of structural reform short of legislative overhaul. Yet structure-focused but non-binding review that merely seeks to ‘gently civilise’ recalcitrant offenders is not enough if those offenders – for whatever reason – simply do not wish to change.

This highlights a mismatch in the Union’s access to justice architecture. On the one hand, Review Bodies might thoroughly understand what might go wrong in the Union’s executive. Yet Review Bodies lack the authority to weigh in. On the other hand, those institutions that could weigh in, courts, mostly focus on vindicating individual grievances through individualised measures (reinstatement, financial compensation, etc.) instead of helping executive actors to remedy structural flaws that might lead to repeated fundamental rights violations. But how to reconcile these two strings of justice?

Therefore, the main take away from this chapter is that Review Bodies and other accountability forums should team up. Together, courts and Review Bodies would combine judicial authority with Review Bodies’ structural and substantive expertise. Combining these two elements would advance justice in a more comprehensive way than either of those two mechanisms could on its own. Currently, complementarity too often translates to isolated attempts to remedy fundamental rights violations by courts and Review Bodies. Thus, a pragmatic path forward would be to combine the analytical and recommendatory capabilities of Review Bodies with binding, authoritative judicial review. On their own, neither judicial review nor structural but non-binding review can do away with the root causes nestled into problematic governance structures, internal cultures, and organisational habitus. However, if courts and other Review Bodies team up, both actors’ capabilities increase significantly. Recently, Daniel Halberstam and Sina von der Boegart called on EU courts to begin issuing ‘structural injunctions’.Footnote ¹¹⁵ Review Bodies could contribute crucial substantive and organisational expertise for these injunctions.

Teaming up could take various forms. For example, Review Bodies could be heard as experts (Article 25 CJEU Statute) or file third-party interventions (Article 42 CJEU Statute) in annulment proceedings. If the Court of Justice espouses the Review Bodies’ recommendations, the Court could include them, in one way or the other, in its judgment.

Further, Review Bodies should also actively engage with political actors and leverage their expertise to push for structural improvements. A case in point is the Ombudsman’s ‘special report’ to the European Parliament from 2013, after Frontex ‘rejected’ a recommendation by the Ombudsman. Crucially, the Ombudsman criticised the fact that the agency ‘had no mechanism in place by which it could deal with individual incidents of breaches of fundamental rights alleged to have occurred in the course of its work. The Ombudsman saw the lack of an internal complaint mechanism as a significant gap in Frontex’s arrangements’.Footnote ¹¹⁶ A decade later, an overhaul of the Frontex regulation introduced such a complaint mechanism – even though in a largely impractical form. This tells us two things. On the one hand, remedying structural flaws requires various fundamental rights-oriented players – courts, Review Bodies, parliamentarians, the Fundamental Rights Agency, NGOs, the press – to team up. On the other hand, at least in the asylum complex, access to justice hinges upon political will and not on idealised legal guarantees.

5.5.2 More Money, More Wit

One common thread running through this chapter is that Review Bodies need more funding and more publicity. Arguably, the latter depends on the former. If Review Bodies are better funded, they could invest further in their expertise, which would be a legitimacy asset and, if operationalised well, might make them more publicly known. Except for BoAs, the Review Bodies studied here will continue to have little or no authority to issue legally binding decisions. Apart from jumping, in one way or the other, onto the court’s bandwagon, Review Bodies should leverage their role as guardians more confidently and, crucially, more publicly. Accountability and oversight are not only questions of formal mandates and dry reports but can be effectively orchestrated through public messaging.Footnote ¹¹⁷ Also courts construe(d) their authority through performative iterations of power. As a consequence, the public incrementally acquiesced to courts’ pre-eminent role in guarding fundamental rights.Footnote ¹¹⁸ Mutatis mutandis, Review Bodies should learn from that example. Therefore, Review Bodies should engage more directly in the public discourse to ramp up public and political pressure wherever reasons for fundamental rights abuses occur. That is particularly important in front of the backdrop of the EU’s still fragmented public sphere and independent executive actors’ lack of electoral accountability.

6.2.1 The Availability of Rights to Challenge EU Acts

The catalogue of rights that litigants could potentially claim against a violation by the EU is certainly not small. Citizens, groups, and companies can draw on national, EU, or international sources of rights. At the EU level, the primary source has been the Charter of Fundamental Rights since its entry into force in 2009 and, beyond the EU, the European Convention on Human Rights, the European Social Charter, and various international human rights treaties. In addition, individuals, groups, and companies could rely on rights derived from national law. Which of these sources would national courts be likely to enforce against an EU act? Of course, following the CJEU’s understanding of the hierarchy of European legal norms, national courts should not have the power to review EU acts at all. This understanding is contested. However, there seems to be little evidence that national courts are open to claims against EU acts that rest on international, European, or higher EU legal norms. In this regard, national courts appear to follow the Foto-Frost doctrine that the CJEU established in 1987.Footnote ⁶ Following this doctrine, while national courts have some leeway to independently interpret EU law as a standard of review for national conduct,Footnote ⁷ the CJEU requires all national courts, including lower courts, to refer questions about the validity of EU law to the CJEU for a preliminary ruling, even where the CJEU’s answer may be obvious. Chapter 4 in this volume deals with the opportunity for national courts to refer questions about the validity of an EU rule or act to the CJEU so I will not pursue this here.

The legal basis on which national courts have shown a willingness to review EU acts is national fundamental rights. Here, we move into the contested area of the hierarchy of legal norms in Europe. The CJEU takes the view that EU law has primacy over national law,Footnote ⁸ even national constitutional law.Footnote ⁹ National courts have not always reacted enthusiastically to this doctrine. National apex courts, and constitutional courts in particular, have frequently reserved the final word for themselves.Footnote ¹⁰ The catalogue of rights that potential litigants could rely on to challenge EU acts therefore depends on which rights are protected by national law. Comparative constitutional scholarship has highlighted substantial variation in the catalogue of rights contained in national constitutional documents or bills of rights. Some of this is related to age: older constitutions primarily encompass ‘first generation rights’ – mainly civil and political rights – whereas newer, post-WWII constitutions often additionally contain ‘second generation rights’ of a socio-economic nature.Footnote ¹¹ Whilst all EU Member State constitutional documents guarantee first generation rights such as freedom of expression, freedom of assembly, property rights, and the right to vote, only some contain second generation rights such as a right to housing, health-care, or work. A wider catalogue allows for greater creativity on the part of litigants challenging EU acts. In addition, national apex courts have developed new rights and procedures for national citizens especially in light of possible intrusions by the EU. Most prominent among these is ‘ultra vires control’ – a legal review of whether the EU has overstepped its delegated competences, first developed by the German constitutional court in its ruling on the Treaty of Maastricht.Footnote ¹² More recently, this court has additionally identified national ‘constitutional identity’ as a red line to the intrusion of EU law.Footnote ¹³ Litigants have since relied on these concepts to contest EU acts and other European apex courts have incorporated them into their own catalogues.Footnote ¹⁴ The development and acceptance of these doctrines, however, does not seem to follow a discernible logic and appears largely contingent on the idiosyncrasies of the national courts in question. Potential litigants in different Member States are thus faced not only with different catalogues of rights but also a varying responsiveness of national judiciaries to claiming these rights against EU acts. This structures the opportunities for judicial remedies against EU fundamental rights violations and offers potential explanations for cross-national patterns in rights claims.

6.2.2 Access to Courts

Where potential litigants have identified both a source of rights that they can claim against an EU act and a national court that may be open to accepting such a claim, they need to have standing in this court to pursue it. First, this requires that the EU act in question has a national component. This is usually the case – directives need to be transposed into national law, and even directly effective EU law gains life on the ground through the action of national bureaucracies. Nonetheless, national legal systems differ widely in the type of access they grant individuals, groups, and companies to their judicial system.

In ordinary courts, standing is generally not a problem if the plaintiff can demonstrate personal and immediate harm. Greater variance exists when it comes to public interests. The Scandinavian, German, and Austrian legal systems have traditionally been very restrictive towards public interest litigation, whereas countries such as the United Kingdom, Ireland, France, Spain, and Portugal have been more open.Footnote ¹⁵ However, ordinary courts are not generally in the habit of accepting rights claims against EU acts. Rather, this tends to be the remit of apex courts, and constitutional courts in particular. These courts have special jurisdiction in fundamental rights issues and special review powers. National variation in the exact combination of access and review powers is again large.Footnote ¹⁶ Crucial for the present purposes is access for civil society actors (citizens, groups, and companies). Some constitutional courts can only be accessed by political actors (office-holders, political parties, Members of Parliament) or review cases referred by ordinary courts. Other constitutional courts allow for citizen access but limit the degree of judicial review. Constitutional complaint procedures allow for the widest degree of citizen access.Footnote ¹⁷ Such procedures are available in Germany, Austria, and Spain and were adopted in some Central and Eastern European countries after democratic transition.

6.2.3 Litigant Characteristics

Even systems with very open legal opportunity structures need litigants to use these opportunities. Some of the factors that encourage citizens, groups, and companies to do so are idiosyncratic (like group resources or normative dispositions towards courts as venues for political contestation), while others are more widely shared. Legal culture, while hard to quantify, plays a role in shared discourses about the role of law and its uses in society – how prevalent rights claims are in political discourse.Footnote ¹⁸ Potential litigants need to conceive of their grievance as a rights issue. The prominent role of the constitution in US political discourse, for example, increases the consciousness that rights exist and can be activated.Footnote ¹⁹ Next to venerated constitutions, legal systems with a prominent and respected apex court will probably create a greater shared sense of legal opportunity than systems without such courts. Where citizens conceive of their grievances as rights issues, they also need to believe that there can be judicial solutions. In places like Germany, where the constitutional court has a prominent place within the political system, a rights claim may seem like an obvious choice to potential litigants, whereas in places characterised by more judicial deference to political decisions, such as the Scandinavian countries,Footnote ²⁰ this might be much less so. This kind of legal consciousness can also be triggered by focusing events, like prominent legal cases with unexpected outcomes – see the recent wave of climate litigation after a series of much discussed if largely symbolic legal victories by individuals and civil society organisations focused on the fight against climate change.Footnote ²¹

Finally, given legal opportunity and legal consciousness, individuals, groups, and companies need to meet the resource demands of litigation. Even in legal systems with generous access to constitutional review and low cost barriers, the chances of a successful legal challenge will be all the greater the better the legal quality of the complaint. With regard to alleged rights violations by the EU, this requires particular expertise in EU law. The rise of multinational law firms specialising in EU law has made this expertise available to all with the means to hire such counsel, but historically ‘Euro-lawyers’ were far and between.Footnote ²² Potential litigants with lesser means have to rely on a different form of ‘support structure’Footnote ²³ – pro bono lawyers and legal clinics or organised interests with either in-house expertise or the means to purchase it elsewhere. Broadly speaking, a more active, organised civil society is more likely to produce such a structure. More specifically, this support structure is likely larger where EU law is part of regular legal curricula, which produces a greater pool of knowledgeable legal activists.

The factors listed above are not randomly distributed. Rather, they cluster in some legal systems and are absent in others. The prominence of Germany in the discourse on the relationship between national and EU law, for example, is no coincidence. Several factors combine to provide fertile ground for the legal contestation of EU acts. A large and comprehensively educated legal profession combines with comparatively generous material resources, an organised civil society, prominence of the constitution and a strong constitutional court in political discourse, the receptivity of this court to rights-based arguments against the EU, and comparatively low barriers of access to constitutional review (while litigants need to demonstrate individual concern, the constitutional court has been open to receiving ‘mass constitutional complaints’ – bundles of individual complaints that can number in the hundreds of thousands).Footnote ²⁴

It is difficult to gauge which of these factors is individually most predictive of rights-based litigation against EU acts. Where a system of constitutional adjudication is missing (such as in the Netherlands), litigants will need to seek remedies through administrative courts on a narrower basis of available procedures and sources of law. An organised civil society with a strong support structure for rights claims, however, may partially compensate for this disadvantage. Member States on the EU’s southern and eastern periphery may have comparatively favourable legal opportunity structures, but litigants may not find the same support structure or receptive national judges. Research has started to address such factors, but much remains to be learned.Footnote ²⁵

6.3.1 Economic Rights: Challenges to EU Trade Regimes

A story of national remedies against EU rights violations is necessarily also a story of EU violations of fundamental rights. The potential nature of such violations is closely tied to what the EU does. For the first four decades,Footnote ²⁸ this has largely been the construction of a customs union and a common market for goods, labour, services, and capital. It follows that the first rights-based challenges against EU acts related to such efforts to build a common market, and in particular against rules that regulated and constrained market activity in ways not previously experienced under national rules. These challenges therefore had a market-liberal bent, and they were brought by companies and entrepreneurs. The first prominent example in this vein was litigation initiated by Internationale Handelsgesellschaft, a German import/export company. In the late 1960s, this company was in the business of exporting cereals to countries outside the EU (then the European Economic Community). In accordance with EU rules on the cereal market, companies wishing to do so needed to apply for export licences. In order to secure such licences, companies needed to pay a deposit to the national authority tasked with disbursing such licences. Internationale Handelsgesellschaft followed this procedure in order to export 20,000 tons of maize meal. The business paid the deposit but ended up unable to export the full 20,000 tons. The responsible German authority then declared part of the deposit (of about 17,000 Deutsche Mark) to be forfeited.Footnote ²⁹

What remedies would be available to Internationale Handelsgesellschaft in this situation? According to the Plaumann doctrine, which the CJEU developed in 1963, Internationale Handelsgesellschaft would not have standing to challenge the validity of the EU policy on export licences before the CJEU because they were not directly and individually concerned by the rule itself. They were directly and individually concerned by the forfeiture, but this decision was taken by a German authority. Internationale Handelsgesellschaft appealed this decision to an administrative court in Frankfurt. Since the German authority had merely followed the stipulations of the EU rules on cereal markets, Internationale Handelsgesellschaft could only argue that the EU rule breached a higher norm. In the event, they argued that the EU rule infringed on their economic rights guaranteed by the German constitution, in particular the right to conduct a business and the principle of proportionality that governs restrictions to this right. The administrative court referred the question of the validity of the EU rules on deposits and forfeiture to the CJEU, pointing out that such a rule likely ran counter to German constitutional law. The CJEU used this case to develop notions of EU fundamental rights but ultimately confirmed the validity of the EU norm and insisted on its supremacy over German constitutional law.Footnote ³⁰ Back in Frankfurt, the administrative court then referred the case to the German constitutional court for its say on the constitutionality of deposits and forfeitures (ordinary courts in Germany cannot rule on constitutionality). The German constitutional court famously went on to admonish the solution found by the CJEU and to assert the German constitution as the higher standard against which it would measure EU law ‘as long as’ (solange, in German) the EU had no fundamental rights catalogue of its own that would be a worthy equivalent of the rights accorded by the German constitution.Footnote ³¹

This ruling significantly expanded the opportunity structure for constitutional rights claims against EU rules in Germany, but very few claims seem to have materialised. Perhaps this is a product of the somewhat restrictive procedure the German constitutional court had devised for such scenarios: a litigant would bring a claim to a lower German court, which would then have to refer the issue to the CJEU for a first ruling on validity. If the CJEU were to uphold the validity, the lower court could then refer the question to the German constitutional court for a final review. Internationale Handelsgesellschaft had lost its deposit in 1969, the German constitutional court issued its final decision five years later, and it went against Internationale Handelsgesellschaft in substance. While the Solange principle may have sounded favourable, it was probably of limited practical use as a remedy against contested administrative decisions in day-to-day business operations. Very few cases therefore followed this model.

One such case concerned a German authority’s refusal to grant a property owner permission to plant vines, following EU rules aiming to cut excess capacities on the wine market. The property owner (Liselotte Hauer) objected to this decision claiming an infringement of her constitutional right to occupational freedom, in addition to her property rights (to the prospective vineyard). The administrative court of Neustadt an der Weinstraße followed the procedure mandated by the German constitutional court: it referred the question to the CJEU,Footnote ³² which upheld the validity of the EU rule.Footnote ³³ Restrictive publication practices of the German constitutional court make it impossible to ascertain whether Mrs Hauer subsequently lodged a constitutional complaint. In any case, court records contain no such reference.

Another case led the German constitutional court to reverse its Solange doctrine. The plaintiff this time, Wünsche Handelsgesellschaft, was a company active in the import of agricultural products from third countries. At issue was a decision by a German authority to deny this company a licence to import preserved mushrooms from Taiwan, based on a Commission regulation protecting the European market in mushrooms. Wünsche first appealed the decision of the German authority to the Frankfurt administrative court on factual grounds. The first instance court confirmed the validity of the Commission regulation without submitting questions to the CJEU and rejected Wünsche’s claim. Wünsche appealed this ruling to the German federal administrative court, who in turn referred the question to the CJEU. The EU court confirmed the validity of the Commission regulation.Footnote ³⁴ Unhappy with this outcome, Wünsche claimed that the CJEU had ignored important arguments and therefore deprived Wünsche of its right to a fair trial. In consequence, it asked the federal administrative court to either re-refer the issue to the CJEU or to refer the fundamental rights claims to the German constitutional court. When the federal administrative court refused both options and dismissed its appeal, Wünsche lodged a constitutional complaint with the German constitutional court, claiming this time that the federal administrative court had infringed its constitutional right to a fair trial. The German constitutional court accepted the case for decision but dismissed it on the merits.Footnote ³⁵ In doing so, it reverted from the Solange doctrine and stated that it no longer reserved the right to review EU rules on the basis of the German constitution, as long as the EU upheld effective fundamental rights protection. This closed the opportunity for rights claims against EU rules in German courts for a number of years.

This new reading was tested a few years later in yet another case concerning trade in agricultural products. The import company this time was the Atlanta group, which did much of its business in the import of bananas. Its business model was affected by a reorganisation of the European market for bananas that gave preferential treatment to bananas produced in overseas territories of the Member States or African, Caribbean, and Pacific (ACP) countries that were party to EU partnership agreements. Germany had previously not had import restrictions, and the new rule set strict import quotas from third countries. Atlanta now had to apply for an import licence with the responsible German authority and the quota it was assigned was significantly lower than its imports of previous years. Atlanta challenged this decision before the Frankfurt administrative court. Like companies before it, Atlanta claimed a breach of its constitutional right to property and its occupational freedom. Its warehouses and ripening stations were running at reduced capacity, and it had to let go of workforce. The Frankfurt administrative court referred the question to the CJEU, which upheld the validity of the regulation.Footnote ³⁶ Unhappy with this result, Atlanta requested a referral of the case to the German constitutional court for a review of the validity of the EU regulation based on German constitutional principles. The German constitutional court rejected Atlanta’s claims, reaffirming its revised Solange doctrine.Footnote ³⁷

6.3.2 Social Rights: Challenges to EU-Induced Austerity

Section 6.3.1 outlined how private litigants (companies and entrepreneurs) leveraged national economic rights against EU trade regulation that in some way restricted their economic activity. This section in turn deals with litigants that claim social rights – such as rights to social security, housing, or education – against EU-induced measures that limited welfare benefits and labour protections during the European sovereign debt crisis.Footnote ³⁸ The EU’s response to this crisis consisted of creative new legal instruments – ‘new forms of law’Footnote ³⁹ – that simultaneously existed outside the ‘regular’ legal order of the EU and had concrete and dire consequences in countries that had to make use of the EU’s sovereign loan programmes. At the core of the legal challenges was the establishment of the European Stability Mechanism (ESM) and its predecessors, an embodiment of the EU’s dual objective to extend fiscal solidarity and impose strict budgetary discipline. Governments of EU Member States set up the ESM as a facility to guarantee that distressed sovereign debt would be serviced and defaults prevented. In return, recipients of bailouts were required to sign Memoranda of Understanding (MoU) that outlined measures these governments committed to in order to regain creditworthiness. These were strictly focused on measures to reduce budget deficits and to deregulate labour markets. They included cuts to public pensions, welfare benefits, public sector pay and entitlements, and limits to employment protections and collective bargaining rights.Footnote ⁴⁰

Legal challenges against such measures faced two central obstacles: the unclear allocation of responsibility between the EU, the ESM, and the national level and the dearth of rights to claim against them. Both obstacles were intertwined: while the EU Charter of Fundamental Rights offers social and economic rights, the Plaumann doctrine restricts access to EU courts and the applicability of the Charter to MoUs rests on the question of whether these count as EU law in the first place. National constitutions, on the other hand, vary widely in the degree to which they grant social rights.Footnote ⁴¹ Legal challenges to MoU-induced austerity measures thus varied by access to courts and the availability of rights to draw upon. In November 2010 and April 2011, a Greek public sector union brought annulment actions before the General Court against measures contained in Council decisions within the Excessive Deficit Procedure that mandated cuts to holiday bonuses, increased the retirement age, and reduced pension levels.Footnote ⁴² The General Court found these actions inadmissible – it did not find the Council decisions of direct concern to the union. It instead pointed out the possibility of an indirect challenge via the preliminary reference procedure. However, in preliminary reference cases brought by a Romanian police union,Footnote ⁴³ an employee of a Romanian municipal theater,Footnote ⁴⁴ and Portuguese unions for employees of the bankingFootnote ⁴⁵ and insuranceFootnote ⁴⁶ sectors against cuts to pay and entitlements, the CJEU found that the measures in question, being national measures based on an MoU, lacked a direct connection to EU law and it therefore lacked jurisdiction. These judgments in effect cut off the option of a remedy in EU courts.

This left litigants with national courts and national sources of law. In Latvia, citizens made use of their access to constitutional complaint procedures against legal statutes to claim social rights contained in the Latvian constitution (such as a right to social security and children’s rights). Several citizens brought such complaints against cuts to pensions,Footnote ⁴⁷ parental benefits,Footnote ⁴⁸ and the salary of judges,Footnote ⁴⁹ with some success in particular regarding pension cuts.Footnote ⁵⁰ In Greece, civil society organisations (trade unions and professional associations) and individuals claimed their right to property (an economic right, here repurposed as a right to social entitlements) in litigation before the highest administrative court against Greek cuts to public pensions.Footnote ⁵¹ The court was not receptive to this claim but rather held that the right to property did not protect pension benefits of a specific amount and the cuts served the legitimate goal of shoring up Greek public finances.Footnote ⁵² Unions also challenged government measures that reduced minimum wage levels and labour protections,Footnote ⁵³ claiming several social rights contained in the Greek constitution, such as a right to a decent living or the principle of collective autonomy.Footnote ⁵⁴ Litigation in Greece did not include challenges against other cuts to welfare entitlements, such as housing or family support, a fact that observers attribute to the lack of civil society mobilisation in this field.Footnote ⁵⁵ Similarly, the absence of rights-based litigation against austerity measures following bailout conditionality in Ireland has been linked to the lack of a culture of rights in economic and social issues.Footnote ⁵⁶ In Portugal, despite a comparatively broad catalogue of social rights (the Portuguese constitution contains rights to social security, health care, decent housing, a safe environment, protection of the family, parenthood, and children’s rights), litigation was largely brought by political actors (opposition MPs and the Portuguese president) in abstract review proceedings, to which civil society actors have no access.Footnote ⁵⁷ Here, too, commentators have highlighted the absence of a culture of rights and litigation in civil society.Footnote ⁵⁸ The Portuguese constitutional court, however, did prove responsive to some of the rights challenges brought by political actors, relying in particular on the principle of equality in invalidating austerity measures that – in the view of the litigants – placed an undue burden on the public sector.Footnote ⁵⁹ The Romanian constitutional court, too, invalidated measures contained in the country’s MoUs for breaches of fundamental rights. These cases were, as in Portugal, largely brought by opposition MPs in abstract judicial review cases, who had relied on social rights such as a right to a decent standard of living.Footnote ⁶⁰

6.3.3 Civil Liberties: Challenges to EU Intrusions on Personal Liberties

The EU’s historic focus on market regulation did not give rise to many occasions where EU acts would intrude on civil liberties, such as the right to life, human dignity or privacy, or the freedom of expression or assembly. Economic actors (companies, mostly) affected by concrete EU acts, such as ‘dawn raids’ in anti-trust enforcement, usually had recourse to judicial review before EU courts. Such acts are of direct and individual concern to those targeted, which will grant standing under the Plaumann doctrine.Footnote ⁶¹ With the expansion of EU competences into policy fields beyond the common market, however, personal liberties became a more pressing issue. EU acts in areas of border control, migration, and defence are evidently more likely to cause immediate personal harm than trade regulation (and, arguably, austerity) – and are hence more likely to violate civil liberties. Claimants in these areas face multiple barriers. Unclear chains of delegation and allocation of responsibility make it harder for those affected to show direct and individual concern to gain standing before EU courts. Moreover, they are generally individuals of limited means and rely on legal aid from law clinics or organised civil society. They are often unaware of the opportunities offered by the legal system, and even where they are, such opportunities are narrow.

The involvement of Frontex, the EU’s border and coast guard agency, in maritime operations in the Mediterranean is one of the most vigorously debated instances of potential rights violations by EU agents. Frontex assists national border guards in their operations, mainly in the deterrence of undocumented migration. This scenario gives rise to many occasions in which the agency has been accused of infringing the personal liberties of migrants. The nature of the agency’s cooperation with national agencies, however, diffuses accountability and makes it difficult to contest individual action.Footnote ⁶² While affected persons and their support network (mostly NGOs and pro bono legal clinics supporting migrants)Footnote ⁶³ have addressed rights claims to national courts, they rarely challenge Frontex directly. Of the several cases that Pijnenburg and van der Pas report being brought in Italian courts, only one specifically included the conduct of EU officials in a shipwreck that resulted in a substantial number of fatalities.Footnote ⁶⁴

A similar scenario unfolds in the context of EU foreign missions. Potential claimants here face the additional hurdle that foreign policy in the EU – like in many national settings – is largely exempt from judicial review. Stian Øby Johansen describes litigation by the relatives of nine ethnic Serbs who were killed in Kosovo between 1999 and 2000.Footnote ⁶⁵ The litigants targeted the EU mission in Kosovo for its failure to investigate these crimes, claiming an infringement of their right to life and the prohibition of torture and inhuman or degrading treatment or punishment under the EU Charter of Fundamental Rights. After several unsuccessful attempts in international legal fora, including the EU General Court, the claimants turned to British courts, where their action resulted in a noteworthy judgment by the English High Court.Footnote ⁶⁶ However, they ultimately failed to overcome the obstacle of finding a national (in this case, English) source of rights to claim before an English court. Following the CJEU’s Foto-Frost doctrine, the English High Court refrained from adjudicating on the conformity of an EU act with a higher EU legal norm.Footnote ⁶⁷

6.3.4 Political Rights: Challenges to EU Policies and EU Integration as Such

The final group of rights reviewed here that have been claimed by litigants against EU acts are political rights, here understood as rights to political participation, and in particular the right to vote. Litigation that relied on such rights generally did not target individual EU measures but rather broad EU policies, such as the EU’s financial rescue mechanisms during the Eurozone crisis or EU integration as such. Cases again almost exclusively originated in constitutional complaints before the German constitutional court, which were brought by a comparatively small group of prominent repeat litigants. Such litigation has its origins in a prominent case concerning the German ratification of the Treaty of Maastricht. A former EU Commission official and a number of members of the German parliament for the party Bündnis 90/Die Grünen claimed that the ratification of this treaty entailed a transfer of legislative competences to the EU level that essentially rendered domestic elections meaningless. This, they claimed, constituted a violation of their constitutional right to free and fair parliamentary elections.Footnote ⁶⁸

The German constitutional court accepted this claim in principle, even if it did not invalidate the ratification as such. The German judges reserved for themselves the authority to review the conformity of EU acts with the principle of conferral. In this reading, the right to vote not only entails participation in universal, free, and fair election but also that elected representatives can make meaningful choices about public policy – it entails, in a sense, a right to democracy.Footnote ⁶⁹ This ability would be impaired if an excess of essential legislative competences were transferred to the EU or if EU institutions were to take decisions outside of their mandate that could tie the hands of future legislators.Footnote ⁷⁰ This interpretation gave creative litigants extensive leeway in challenging EU policies. Litigants could now employ constitutional complaints against EU acts that, in their view, were not covered by EU competences circumscribed by primary EU law. Such complaints have since become a regular feature of major EU projects: the introduction of the Euro,Footnote ⁷¹ the Treaty of Lisbon,Footnote ⁷² EU responses to the Eurocrisis,Footnote ⁷³ and the EU rescue mechanisms established in reaction to the COVID-19 pandemic.Footnote ⁷⁴ Litigants not only challenged EU legislation but also acts of the Europan Central Bank (ECB) and judgments of the CJEU. So far, only the complaints against the ECB’s public sector purchase programme (PSPP) have had – famously – some degree of success. The German court created deep controversy by rejecting a previous CJEU ruling and ordering the ECB to give reasons for its programme of quantitative easing that reflected potential negative socio-economic effects (such as a potential real estate bubble).Footnote ⁷⁵ Compare this to a similar challenge by two Belgian activists before the Belgian constitutional court,Footnote ⁷⁶ which that court rejected because the litigants could not show individual concern.Footnote ⁷⁷

Given the German constitutional court’s openness to such broad challenges, organised interests have discovered the mobilising potential of filing ‘mass constitutional complaints’ against EU acts.Footnote ⁷⁸ The group ‘Europolis’ around lawyer and academic Markus C. Kerber filed at least five complaints against various bailout measures.Footnote ⁷⁹ ‘Bündnis Bürgerwille’, a group surrounding the AfD-founder Bernd Lucke, filed a constitutional complaint against the ECB’s public sector purchasing programme in the name of some 1,700 applicantsFootnote ⁸⁰ and a complaint against the EU’s pandemic recovery fund NextGenerationEU co-signed by 2,275 individuals.Footnote ⁸¹ Another group, ‘Mehr Demokratie’, committed to promoting direct democracy, brought together 11,718 individuals to challenge the ESM.Footnote ⁸² The largest single constitutional complaint to date was lodged in 2016 by ‘Mehr Demokratie’ in cooperation with the groups ‘Campact’ and ‘Foodwatch’, who assembled 125,000 individuals to challenge the constitutionality of CETA, the EU’s trade agreement with Canada.Footnote ⁸³ A concurrent complaint by private activist Marianne Grimmenstein assembled another 68,000 complainants.Footnote ⁸⁴ The complainants held that the CETA committee system, which has certain autonomous rule-setting powers, infringed on their right to vote.Footnote ⁸⁵

7.2.1 External Remedies Filling Two Protection Gaps

Accession obviously has the immediate effect of providing natural or legal persons with the possibility to complain before the ECtHR. Currently they experience a gap in the protection of their ECHR rights in two different ways: the inability to complain about acts or omissions of the EU as well as the (near) impossibility to address the implementation of EU law by EU Member States when the latter have no margin of discretion. Accession will remedy these deficiencies and enables individual complaints in both scenarios. Accession even allows applications in relation to EU primary law.Footnote ¹⁷ This is noteworthy because the CJEU itself cannot annul or declare primary EU law invalid.Footnote ¹⁸ With respect to the first scenario, it is currently impossible to complain about fundamental rights violations (allegedly) committed by the EU and its institutions.Footnote ¹⁹ Without EU accession to the Convention, the EU cannot be held liable under the ECHR. One well-known example is Connolly. This was a case brought by a European Commission official challenging a disciplinary procedure resulting in suspension following the publication of a book. He criticised the reasons for his dismissal as infringing his freedom of expression. The ECtHR declared the case inadmissible ratione personae, which means that the alleged violation of the ECHR was not committed by (or to be attributed to) a contracting State Party.Footnote ²⁰ Another example of the broadening of the possibility for accountability of the EU concerns civilian and military missions launched in the context of the CFSP (Section 7.4 will discuss this more extensively). Accession will make it possible to complain before the ECtHR about alleged fundamental rights violations in the context of such missions.

The inability to make a complaint against the EU before the ECtHR prior to accession does not preclude the possibility that the EU Member States themselves are held responsible for violations of the Convention arising from their EU law obligations. Connolly, for example, not only complained against the EU but also the fifteen EU Member States at that time. The ECtHR, however, noted that at no time did any of the EU Member States in question intervene, directly or indirectly, in this dispute. Hence, there was no action or omission by these States that would be such as to engage their responsibility under the Convention. Where no Member States are involved in an infringement, the ECtHR also has no jurisdiction.Footnote ²¹

Connolly illustrates that the accountability deficit can in principle be overcome by targeting EU Member States when they are (in)directly involved. Aside from pure EU acts or omissions, in many situations there is such involvement, because EU law frequently depends on the implementation by national authorities. Nonetheless, it is currently impossible to complain against EU Member States when they implement EU law without any discretion.Footnote ²² This relates to the Bosphorus doctrine developed in a case dealing with an alleged violation of the right to property following the seizure of an aircraft by Ireland on the basis of a strict obligation contained in an EU regulation with no discretion.Footnote ²³ On the basis of this doctrine, the ECtHR presumes that the ECHR is not violated when the Member State had no discretion on the basis of EU law and when the full potential of the EU’s supervisory mechanism and system of legal protection had been employed. This presumption can be rebutted if the protection of ECHR rights was manifestly deficient.Footnote ²⁴ The Bosphorus presumption reflects the difficult position of Member States in situations in which there is no room for manoeuvre for Member States and, hence, no possibility to reconcile or pragmatically weigh conflicting obligations.Footnote ²⁵ The presumption is also seen as an illustration of the willingness of the ECtHR to show comity and respect for the CJEU.Footnote ²⁶ The ECtHR has only once rebutted the presumption since its Bosphorus judgment of 2006. In Bivolaru and Moldovan, the ECtHR determined for the first time that the presumption did not apply even though it did not find a breach of Article 3 ECHR because the French judge had applied the EU legal framework correctly.Footnote ²⁷

There is a burgeoning discussion in the literature whether accession means an end to the Bosphorus presumption. Most commentators think this is the case.Footnote ²⁸ They argue that there is no reason to extend a preferential treatment to the EU that diverges from other regular ECHR contracting parties.Footnote ²⁹ The ECtHR is expected to apply a more rigorous review of EU action instead of the more deferential Bosphorus presumption.Footnote ³⁰ Timmermans, however, notes that it is ironical that the presumption existing before accession is abandoned after accession. He also argues that the CJEU is not comparable to supreme courts of Member States.Footnote ³¹

In sum, accession provides external remedies that close two protection gaps. One might wonder how big the gaps are and, thus, in how many cases fundamental rights accountability remains a dead letter. Answering these questions is obviously highly speculative. The few declarations of inadmissibility by the ECtHR tell very little, because complaints against the EU are by definition unsuccessful and thus probably only the tip of the iceberg. Based on the case law of the CJEU, one could argue that there are only a limited number of violations committed by EU institutions.Footnote ³² One competition law example is Baustahlgewebe in which the CJEU held that the proceedings before the Court of First Instance were excessively long. It, hence, lowered the fine for the respective company.Footnote ³³ A similar tendency can be reported for declarations of invalidity of EU law. In the last decade, there have been less than a handful of cases such as Digital Rights Ireland and Schrems in the context of data protection and privacy.Footnote ³⁴ Once again, these numbers tell very little. They are more a reflection of the high thresholds for the fulfillment of the conditions for non-contractual liability of the EU or the strict locus standi requirements for legal and natural persons in relation to the action for annulment.

7.2.2 Greater Coherency between the EU and ECHR

At a more abstract level, accession has the consequence that the ECtHR becomes the ‘ultimate arbiter’. The CJEU will be – in hierarchical terms – subject to the jurisdiction of the ECtHR.Footnote ³⁵ The judgments of the ECtHR are binding on all EU institutions including the CJEU, following Article 46 ECHR.Footnote ³⁶ The ECtHR can thus ‘correct’ the CJEU when the latter provides more limited protection.Footnote ³⁷ The ECtHR has the last word and could solve a conflict between case law of both courts.Footnote ³⁸ A consequence is that the ECHR acts as a clear ‘minimum benchmark’.Footnote ³⁹ The EU will no longer be ‘the ultimate repository of meaning’ with respect to fundamental rights in relation to EU law, at least to the extent that these rights are covered by the ECHR.Footnote ⁴⁰ Also, from a substantive perspective, the meaning of these rights and their balance with other interests will eventually be made by Strasbourg.Footnote ⁴¹ Accession might lead the CJEU to offer less relative weight to market objectives.Footnote ⁴²

The hierarchical relationship minimises the risks of conflicting case law.Footnote ⁴³ Even though real conflicts have almost never occurred,Footnote ⁴⁴ the threat has been ‘ever present’.Footnote ⁴⁵ Currently, there is a lot of debate within the literature as to the possibility of diverging standards of judicial independence.Footnote ⁴⁶ It also remains to be seen whether the ECtHR will follow the two-step test that the CJEU developed in the context of criminal cooperation marked by mutual trust. In Aranyosi, the CJEU held that the execution of a European arrest warrant has to be postponed if a national court finds that there are, firstly, systemic or generalised deficiencies as to the detention conditions in the issuing Member State and, secondly, a real risk for the individual of inhuman or degrading treatment.Footnote ⁴⁷ The CJEU has extended this two-step test to situations involving the fundamental right to a fair trial.Footnote ⁴⁸ The CJEU has declined the possibility of postponement where an individual risk cannot be proven.Footnote ⁴⁹ It also ruled out the possibility to examine such an individual risk without any systemic or generalised deficiencies.Footnote ⁵⁰ It is unclear whether this approach is in line with the ECHR and the case law of the ECtHR.Footnote ⁵¹ Nothing precludes the ECtHR from finding an individual case when there are no structural problems. Such divergences are less likely to occur after accession.

Given the binding nature of ECtHR judgments, accession could also ‘cement more firmly’ the role of ECtHR judgments in the EU legal order.Footnote ⁵² Accession could lead to a more deliberative and substantive engagement and dialogue with the ECtHR replacing the current discretionary, selective, and instrumental engagement with Strasbourg.Footnote ⁵³ The CJEU treats ECtHR judgments currently as ‘mere’ useful sources of inspiration that are regularly taken into consideration. After accession, the CJEU can apply the ECHR directly, without a ‘detour’ via general principles of EU law in the sense of Article 6(3) of the Treaty on European Union (TEU).Footnote ⁵⁴ Nonetheless, the question remains whether the CJEU will indeed treat the ECHR and ECtHR case law in the way outlined above. An option could be that it treats the ECHR in the same way as all international agreements and hence places the ECHR below the EU Treaties, as some ECHR Member States do in relation to their own constitution.Footnote ⁵⁵

In conclusion, accession is beneficial from the perspective of legal certainty and coherence.Footnote ⁵⁶ It reduces the current complexity in the operation of these two legal orders.Footnote ⁵⁷ Gragl aptly observed that ‘the adverse effects of two parallel and juxtaposed legal regimes will be overcome’ after accession.Footnote ⁵⁸ Accession thus has an ‘anti-patchwork effect’.Footnote ⁵⁹ This is also desirable for national courts who are sometimes struggling with differing standards.

7.2.3 The Substantive Effects of Accession in Practice

The foregoing leads to the question of what substantive effects accession will have on the level of fundamental rights protection. Several commentators doubt whether accession will have a substantive impact, in part because the level of protection in relation to several ECHR rights is more limited.Footnote ⁶⁰

Much depends on the way in which the ECtHR will proceed after accession with respect to its intensity of review. Four aspects can be discerned. First, to what extent will the ECtHR grant the EU a different or broader margin of appreciation than the margin for ‘regular’ ECHR Member States? Even though the Bosphorus presumption will probably disappear, this margin enables the ECHR to take the special sui generis nature of the EU into consideration, including, for example, the fact that EU legislation is the result of choices of twenty-seven Member States.Footnote ⁶¹ It could be that the ECtHR is more reluctant to thwart a particular balance between conflicting rights and public interests that are the result of a careful legislative process involving various EU institutions and twenty-seven Member States. If the EU enjoys the same margin as regular state parties, it remains to be seen whether the balance struck by the EU legislature and CJEU falls within the margin. The balance struck between trade union rights and the freedom of services by the CJEU in Viking/ Laval has, for example, been questioned.Footnote ⁶² It is also far from certain whether the CJEU has stayed within the margin with its decision in Achbita balancing freedom of religion in the workplace and the freedom to conduct a business.Footnote ⁶³

A second uncertainty related to the ECtHR’s intensity of review concerns the doctrine of positive obligations. It is unclear to what extent and how the ECtHR will extend its case law on positive obligations under the ECHR to the EU and apply it to a failure on the part of the EU to take (legislative or executive) action.Footnote ⁶⁴ If the ECtHR does not differentiate between the EU and ‘regular’ Member States, the substantive impact of accession is arguably bigger. Extending the doctrine of positive obligations to the EU is not entirely risk-free from an EU perspective, in part because the CJEU has not yet accepted in full the doctrine.Footnote ⁶⁵ The only exception is the CJEU’s judgment in La Quadrature du Net of 2020 that positive obligations under the Charter may justify national legislation that requires providers of electronic communications services to retain particular data about communications.Footnote ⁶⁶ An all too expansive adoption of positive obligations could be in tension with the principle laid down in Article 51(2) of the Charter of Fundamental Rights of the European Union (CFR)Footnote ⁶⁷ and Article 6(1) TEU. According to this principle, the Charter does not extend the field of application of Union law beyond the powers of the Union, does not establish any new power or task for the Union, and does not modify the powers and tasks as defined in the Treaties. The question is to what extent the ECtHR will extend its doctrine in situations in which the EU has no or very limited competences.Footnote ⁶⁸

A third aspect relating to the intensity of review by the ECtHR deals with the rather procedural Dhahbi case law.Footnote ⁶⁹ There is an abundant body of ECtHR case law on the duty to state reasons for decisions of national courts not to refer a case for a preliminary ruling to the CJEU. On several occasions, the ECtHR has found a violation of Article 6 ECHR in cases where the highest national court –despite a sufficiently clear and substantiated request by one of the parties in the proceedings – failed to make a preliminary reference.Footnote ⁷⁰ In these cases, the violation consists of a failure to comply with the duty to state reasons under Article 6(1) ECHR. This failure concerns in essence a more formal or procedural violation of the right to effective judicial protection. The ECtHR underscored in these judgments:

Nonetheless, even prior to accession, the ECtHR adopted a more substantive analysis in Dangeville and – more recently – Spasov. In the latter Romanian case, the ECtHR for the first time held that there was a ‘denial of justice’ and thus a violation of Article 6(1) ECHR due to a manifest error of law by a national court regarding the interpretation and application of EU law.Footnote ⁷² One would expect that after accession the ECtHR will adopt this more substantive approach and also scrutinse the application of EU law by national courts in more depth, obviously subject to the earlier mentioned margin of appreciation.

A fourth question concerns whether the ECtHR will ‘accept’ the strict locus standi requirements in relation to the action for annulment (Article 263 TFEU) and action for failure to act (Article 265 TFEU).Footnote ⁷³ It is well known that direct access to the CJEU is difficult. When an act is not addressed to them, natural or legal persons have to show that they are directly and individually concerned (see Chapter 1).Footnote ⁷⁴ Ever since the 1963 Plaumann judgment, the CJEU requires persons to show that the ‘decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed’.Footnote ⁷⁵ AG Jacobs, the Court of First Instance (currently the General Court), and several commentators have argued for a relaxation of the CJEU’s interpretation of individual concern because they were of the opinion that a strict reading violates Article 6 and/or Article 13 ECHR.Footnote ⁷⁶ The CJEU has, however, consistently resisted the temptation to reconsider its case law on individual concern, especially with a reference to the entire system of EU remedies and the possibilities for individuals to indirectly access the CJEU via the preliminary reference procedure (Article 267 TFEU). It famously held: ‘To that end, the FEU Treaty has established, by Articles 263 and 277, on the one hand, and Article 267, on the other, a complete system of legal remedies and procedures designed to ensure judicial review of the legality of European Union acts, and has entrusted such review to the Courts of the European Union.’Footnote ⁷⁷ The CJEU has also explicitly ruled out that the possession of an individual right leads to the establishment of standing as such.Footnote ⁷⁸ It is not unthinkable that individuals will turn to the ECtHR after an inadmissibility decision and claim a violation of Articles 6 and 13 ECHR. In Posti and Rahko v Finland, the ECtHR held:

In the earlier mentioned Bosphorus case, the ECtHR nonetheless concluded, after recognising that access of individuals to the CJEU is ‘limited’, that the protection of fundamental rights is equivalent to the ECHR.Footnote ⁸⁰ Judge Ress, however, stressed in his concurring opinion that this determination does not mean that the limited access via Article 263 TFEU is necessarily in accordance with the ECHR.Footnote ⁸¹ The Aarhus Compliance Committee determined, albeit only with respect to environmental matters, that the standing requirements are too severe to comply with the Aarhus Convention.Footnote ⁸²

In sum, this subsection shows that the impact of accession from an effective judicial protection perspective depends on the approach taken by the ECtHR. The eventual substantive effects also depend on possible (internal) procedural rules to be decided by the EU as to the implementation of ECtHR judgments. ECtHR judgments are ‘only’ declaratory in nature and do not as such invalidate secondary EU law.Footnote ⁸³ The question from the perspective of EU law is whether a separate CJEU judgment annulling the respective provision(s) of the EU law instrument is subsequently necessary or whether the EU legislature can amend legislation so that it is in conformity with the ECHR without such an intermediate step. There are no guidelines for the CJEU (yet) on how to deal with ECtHR judgments.Footnote ⁸⁴

7.3.1 ECtHR Admissibility Requirements

The most obvious starting point for a procedural overview of the consequences of accession is admissibility. Applicants must overcome two procedural admissibility hurdles before the ECtHR delves into the merits of their case. First, following Article 34, only persons, non-governmental organisations, or groups of individuals may bring a complaint against the EU before the ECtHR.Footnote ⁸⁷ Second is the requirement to exhaust all ‘domestic’ remedies under EU law, following Article 35 ECHR.Footnote ⁸⁸ This reflects the subsidiary nature of the ECHR system, giving national courts the opportunity to first reflect on the compatibility of their national laws with the ECHR.Footnote ⁸⁹ The ECtHR described the exhaustion rule as ‘one that is golden rather than cast in stone’.Footnote ⁹⁰ The rule is not applied, amongst others, when the applicants can show that a remedy was not available in practice or that the remedy was inappropriate, ineffective, or unreasonable.Footnote ⁹¹

Applying this logic to the EU ‘complete system of legal remedies’, accession enables natural and legal persons to access the ECtHR after having started and exhausted an action for annulment (Article 263(4) TFEU), action for failure to act (Article 265(3) TFEU), or action for damages (Articles 268 jo. 340 TFEU). The same holds true for civil service disputes between the EU and its staff (Article 270 TFEU) and disputes in relation to arbitration clauses in contracts concluded by or on behalf of the Union (Article 272 TFEU). Since the General Court has jurisdiction to hear and determine these actions at first instance, persons should in theory have made it all the way up to the Court of Justice. This is obviously subject to the aforementioned caveat that an appropriate and effective remedy was available. One unresolved question in this context is whether the ECtHR will require an individual to start an action for annulment even though it is evident that he does not satisfy the earlier discussed strict locus standi requirements.Footnote ⁹² Third party interveners are also expected to benefit from accession. This could include persons who (unsuccessfully) appealed the substantive decision of the General Court before the Court of Justice but also those who were refused leave to intervene by the General Court and Court of Justice.Footnote ⁹³

This overview indicates that persons cannot directly turn to the ECtHR in relation to CJEU judgments rendered in the context of the preliminary reference procedure (Article 267 TFEU), as the explanatory report to the AA makes clear as well.Footnote ⁹⁴ Individuals can, however, complain before the ECtHR vis-à-vis the national court’s judgment implementing the CJEU’s preliminary ruling, obviously subject to the domestic exhaustion rule.Footnote ⁹⁵ This means that where a reference was made by a lower court, the persons should appeal to the higher or highest court(s) before they can complain before the ECtHR. Note that the person concerned can in this way indirectly ‘challenge’ the underlying CJEU ruling including the CJEU’s interpretation of EU law and its pronouncements on the validity of EU law before the ECtHR. The ECtHR is subsequently in a position to review whether EU law, as interpreted by the CJEU, is in conformity with the ECHR. The EU can become a co-respondent in such a situation, as will be discussed in Section 7.3.2. One question is whether the ECtHR will require the applicant, in a case in which a reference was made, to have put forward the fundamental rights violations in their submissions before the referring court and the CJEU in the same way as the ECtHR has required applicants in ‘regular’ cases against an ECHR contracting party. Is it enough that the applicant merely alluded to the EU Charter of Fundamental Rights, or should the claims also have been couched in ECHR terms? There are indications in the case law that the ECtHR might be(come) strict(er), albeit only in a few UK cases.Footnote ⁹⁶ The applicant is not required to have requested a reference for a preliminary ruling before the national court. A reference is generally not seen as a domestic legal remedy that must be exhausted before an individual can turn to the ECtHR, because the individual does not enjoy a right to a reference.Footnote ⁹⁷ This was also acknowledged by the Presidents of the CJEU and ECtHR in their Joint Communication.Footnote ⁹⁸

7.3.2 Shared or Concurrent Responsibility and the Co-respondent Mechanism

In many instances, the EU is not solely responsible for an alleged breach of fundamental rights.Footnote ⁹⁹ Since implementation of EU law happens primarily at the national level, EU Member States are almost always involved in one way or another.Footnote ¹⁰⁰ Under EU law, such acts of Member States implementing EU law are attributed to the Member State(s) concerned.Footnote ¹⁰¹ Attribution to Member States does not preclude the EU from being concurrently responsible. The alleged unlawful conduct on the part of the EU could, for example, consist of an omission to act or a failure to provide proper oversight, thereby contributing to or facilitating a breach on the part of the Member State. The failure to exercise sufficient supervisory powers on the part of EU institutions may give rise to liability on the part of the EU.Footnote ¹⁰² The CJEU has also held the Commission liable for its wrongful authorisation of import licences by EU Member States.Footnote ¹⁰³

For situations of concurrent or shared responsibility, the Accession Agreement foresees a so-called co-respondent mechanism. Article 3(1) AA entails that a new fourth paragraph will be added to Article 36 ECHR:

The mechanism benefits the applicant as well as the potential co-respondent. From the perspective of effective judicial protection of the applicant, the co-respondent mechanism ensures that individual applications against the wrong entity are not declared inadmissible.Footnote ¹⁰⁴ Individuals often do not know the ins and outs of EU law and implementation rules so it can be difficult for them to determine whether the respondent is a Member State or the EU.Footnote ¹⁰⁵ It could happen that natural or legal persons start an action against EU Member States –when implementing EU law – in such cases of shared or concurrent responsibility while the EU also played its part. Article 3(2) AA enables the EU to become a party to the proceedings before the ECtHR alongside the respondent State(s). EU Member States have a more limited possibility under Article 3(3) AA when an application is brought against the EU. They can only become a co-respondent in cases where the conformity of EU primary law with the ECHR is contested.Footnote ¹⁰⁶ The anticipated mechanism benefits the co-respondent in the sense that they become a party to the case and, hence, can take part in the proceedings.

The current Accession Agreement has made it easier for the EU and EU Member States to act as co-respondents before the ECtHR. The reason is the CJEU’s objections to the way the mechanism was set up in the AA 2013 in Opinion 2/13. The CJEU was critical about the required review by the ECtHR in relation to requests to intervene as co-respondents in a case before the ECtHR. On the basis of the AA 2013, the ECtHR could examine whether it is plausible that the conditions were met. According to the CJEU, this would require the ECtHR to assess the rules of EU law governing the division of powers between the EU and its Member States as well as the criteria for the attribution of their acts or omissions. The revised AA no longer uses the term ‘request’ but merely stipulates that the EU and/or EU Member States may become a co-respondent ‘upon their initiative’. Article 3(5) AA further adds that ‘The Court shall admit a co-respondent by decision if a reasoned assessment by the European Union sets out that the conditions in paragraph 2 or 3 of this article are met’. This presupposes an almost mechanical automaticity. That is confirmed by the explanatory report to the AA that provides that the ‘assessment by the EU will be considered as determinative and authoritative’.Footnote ¹⁰⁷

A second substantive change in the current Accession Agreement is the amendment of Article 3(8) AA.Footnote ¹⁰⁸ The amended provision reads: ‘If the violation in respect of which a High Contracting Party is a co-respondent to the proceedings is established, the Court in its judgment shall hold the respondent and the corespondent jointly responsible for that violation’ (emphasis added). The original provision in the AA 2013 enabled the ECtHR to divert from this default rule and determine that only one of them is responsible on the basis of the reasons given by the respondent and the co-respondent. The reason for this amendment is Opinion 2/13 in which the Full Court held:

The amendment also addresses the earlier concerns in the literature as to the interference of the ECtHR with the EU competence division.Footnote ¹¹⁰ It seems that the current AA requires subsequent steps at the EU level to execute the ECtHR judgment. The CJEU probably needs to apportion responsibility by the EU and the Member State(s) concerned. Internal attribution rules might be a logical step. The question thus remains how the EU will proceed following a determination of a violation of the ECHR by the ECtHR in situations of concurrent responsibility.

The previous paragraphs create perhaps the impression that the EU and its Member States enjoy a special and more lucrative position in comparison with other ECHR contracting parties. It appears that the current AA is even more deferential to the EU than the original AA 2013.Footnote ¹¹¹ This picture is not entirely true, as the explanatory report to the AA also emphasises: the mechanism is not ‘a procedural privilege’ for the EU or its Member States. The report mentioned that it is a way ‘to avoid gaps in participation, accountability and enforceability’ in the Convention system, while also serving ‘the proper administration of justice’.Footnote ¹¹² It is important in this context to underscore the advantages of the co-respondent mechanism from the perspective of effective judicial protection of potential applicants. First, individuals only have to exhaust the local remedies of one entity: the Member State or the EU.Footnote ¹¹³ In addition, a possible wrong decision by the applicant(s) as to the respondent does not affect the admissibility decision as can be derived from the last sentence of the earlier quoted future Article 36(4) ECHR.Footnote ¹¹⁴ Second, the co-respondent becomes a party to the case and is, hence, also bound by the ECtHR judgment.Footnote ¹¹⁵ Third, if Member States enjoy no discretion, that is, when they are in a situation – in the words of Article 3(2) AA – where a ‘violation could have been avoided only by disregarding an obligation under European Union law’, the EU can be held responsible as well alongside the EU Member State(s) in question.Footnote ¹¹⁶

7.3.3 The Prior Involvement Procedure

Article 3(7) of the Accession Agreement also establishes a procedure to ensure that the CJEU can make an assessment of the compatibility of EU law with the ECHR before the ECtHR does so, when it has not had a chance to interpret or decide on the validity of EU law. This prevents the ECtHR from delivering its own original interpretation of EU law or from deciding a case on the basis of a wrong interpretation of EU law.Footnote ¹¹⁷ Such a scenario would breach the CJEU’s exclusive jurisdiction over the definitive interpretation of EU law, as the CJEU underscored in Opinion 2/13.Footnote ¹¹⁸ This procedure is reflective of the subsidiary role of the ECtHR.Footnote ¹¹⁹ The revised AA does not fundamentally change the procedure, except for the clarification that the procedure is not limited to questions of validity of secondary EU law but also questions of interpretation.Footnote ¹²⁰ The procedure is primarily relevant in relation to situations in which a request for a preliminary ruling was not made, as the explanatory report to the AA also suggests.Footnote ¹²¹ It seems at first sight not relevant for direct actions before the CJEU, such as the action for annulment, because the CJEU had an opportunity to pronounce itself. Nonetheless, as noted earlier, such actions frequently result in inadmissibility decisions for lack of locus standi without any discussion of the merits. The Accession Agreement does not preclude the CJEU’s prior involvement in these cases.

The prior involvement procedure seems to give the CJEU a prominent role. Its (future) role should, however, not be overstated for three reasons. First, the CJEU is only given a chance after the application is declared admissible by the ECtHR.Footnote ¹²² It could be argued that this is too late, because the admissibility decision might already involve some reflection on EU law, as the discussion of the strict locus standi requirements in Section 7.2.3 shows.Footnote ¹²³ Second, the assessment of the CJEU will not bind the ECtHR. Article 3(7) AA provides: ‘The provisions of this paragraph shall not affect the powers of the Court.’ In addition, the explanatory report to the AA also mentions explicitly that the CJEU’s assessment will not bind the Court.Footnote ¹²⁴ Third, it is often difficult to make a distinction between interpretation and application of EU law. Formally, national laws (including EU law) are treated by the ECtHR as being part of the facts of the case. The ECtHR will not substitute itself for national authorities and will thus not interpret EU law as such.Footnote ¹²⁵ But, in practice, the task to give an interpretation of the ECHR can ‘shade, sometimes unavoidably, into the interpretation of national norms’.Footnote ¹²⁶ Authors have thus questioned the CJEU’s conclusion that the EU and its institutions cannot be bound ‘in the exercise of their internal powers, to a particular interpretation of the rules of EU law’.Footnote ¹²⁷ According to them, such ‘second-guessing’ is precisely the rationale of accession.Footnote ¹²⁸

7.4.1 CFSP: The Current Gap in Effective Protection

One major protection gap prior to accession concerns fundamental rights violations by the EU in the context of the CFSP. This problem has become more pertinent in recent years, because of the increasing shift of powers from Member States to the EU, as illustrated by the growing number of civilian and military operations and restrictive measures or sanctions.Footnote ¹²⁹

The gap in effective judicial protection in the CFSP relates to the limited jurisdiction of the CJEU in this area and its evolvement in recent years. The jurisdiction of the CJEU is clearly circumscribed in the Treaties, even though the CJEU itself has interpreted its jurisdiction broadly. Because of the special and intergovernmental nature of the CFSP area, also reflected in the inability to adopt legislative acts, Article 24 TEU stipulates that the CJEU shall not have jurisdiction in relation to the CFSP with two exceptions. First, the CJEU can monitor compliance with Article 40(1) TEU and make sure that the implementation of the CFSP does not affect the application of the procedures and the extent of the powers of the institutions in relation to other EU competences. In practice, this boils down to ensuring that the correct legal basis is used in the adoption of EU secondary law and that the correct corresponding decision-making procedures are used. Second, and most relevant for the purpose of this chapter, is the ability of the CJEU to review the legality of decisions providing for restrictive measures against natural or legal persons following Article 275 TFEU.

The CJEU has stretched these exceptions in its case law and has tried to minimise the effective judicial protection gap.Footnote ¹³⁰ The rationale is that the limitations to the CJEU’s jurisdiction derogate from the rule of general jurisdiction in Article 19 TEU and must, therefore, be interpreted narrowly and in the light of the right and principle of effective judicial protection.Footnote ¹³¹ The CJEU has, for example, provided a strict interpretation of the acts excluded from review in Article 275 TFEU. According to the CJEU, this does not include measures adopted by Eulex Kosovo such as the awarding of a public contract giving rise to expenditures for the EU budget.Footnote ¹³² In H, the CJEU also accepted jurisdiction to assess the action for annulment in relation to a decision of the Chief of Personnel of the EU Policy Mission in Bosnia and Herzegovina to redeploy an Italian national seconded to another office.Footnote ¹³³ The CJEU has also accepted the possibility of preliminary references in relation to the validity of CFSP acts in Rosneft.Footnote ¹³⁴ There is currently a case pending before the CJEU dealing with the question of whether the CJEU can also handle questions on the interpretation of a CFSP decision concerning restrictive measures.Footnote ¹³⁵ In addition, the CJEU accepted non-contractual liability in relation to individual CFSP restrictive measures adopted on the basis of Chapter 2 of Title V TEU in Bank Refah Kargaran.Footnote ¹³⁶ The question is whether the CJEU has jurisdiction in relation to damages caused by other CFSP acts, measures, or omissions, such as CFSP missions. There is currently another damages case (KS and KD) pending before the CJEU against the Council, Commission, and EEAS for the mishandling of recommendations of the EU Human Rights Review Panel established to investigate and prosecute war crimes committed during the war in Kosovo in 1999. The General Court dismissed the action for lack of jurisdiction ‘to review the legality of such acts or omissions, which relate to strategic choices and decisions concerning the mandate of a crisis management mission set up under the CSDP, which is an integral part of the CFSP, nor can it award damages to applicants who claim to have suffered harm as a result of those acts or omissions’.Footnote ¹³⁷ It held that the action does not concern restrictive measures in the sense of Article 275 TFEU or compliance with Article 40 TEU.Footnote ¹³⁸ The Court also distinguished the case from the CJEU’s public procurement (Elitaliana) and staff management (H) cases.Footnote ¹³⁹

In sum, the advancing CJEU case law in relation to the CFSP already minimises the gaps in the CJEU’s jurisdiction at the time of Opinion 2/13. Nonetheless, several acts, actions, or omissions performed in the context of the CFSP are still excluded from review.Footnote ¹⁴⁰

7.4.2 CFSP: Accession of the EU and Its Benefits

The AA 2013 did not provide for any specific arrangements in relation to the CFSP. The AA simply empowered the ECtHR to review the compatibility with the ECHR of acts, actions, or omissions performed in the context of the CFSP. This was problematic for the CJEU since it would give the ECtHR jurisdiction in a policy area in which the CJEU itself does not have jurisdiction.Footnote ¹⁴¹ Entrusting exclusive review to a non-EU body ‘outside the institutional and judicial framework of the EU’ fails to have regard to the ‘specific characteristics of EU law’, as the CJEU concluded critically in Opinion 2/13.Footnote ¹⁴² The CJEU’s position in relation to CFSP has received a lot of criticism in the literature. Łazowski and Wessel held: ‘It is one thing to prevent judicial activism in that area; it is quite another thing to deliberately leave gaps in the protection of fundamental rights.’Footnote ¹⁴³ The CJEU’s concerns in relation to the CFSP are arguably the most controversial aspect of Opinion 2/13. It is therefore no surprise that the CFSP has been reserved to the end of the negotiations on the EU’s accession to the ECHR as so-called basket 4.

It still remains to be seen how the new AA will solve the problem of the limited jurisdiction of the CJEU in the CFSP. The March 2023 deal of the 46 + 1 Group left this question to the EU to solve as an internal matter. The EU will keep the Council of Europe’s Steering Committee for Human Rights informed.Footnote ¹⁴⁴ One possible solution is a reattribution mechanism as proposed by the EU in February 2023. The proposed Article 4a AA re-attributes CFSP acts to EU Member States: an ‘act, measure or omission shall be attributed to one or more member States of the European Union … if the European Union has designated that member State or those member States of the European Union as responsible for that act, measure or omission by means of a reasoned declaration’.Footnote ¹⁴⁵ An earlier version of the explanatory report to the AA mentions in relation to this proposal that the decision whether an act, action, or omission falls within the scope of the CFSP is a matter of internal EU law, ‘which can only be decided definitively’ by the CJEU. The ECtHR shall accept this ‘final determination’.Footnote ¹⁴⁶ This also means that the Member State(s) designated will become respondent(s) in the case of re-attribution of responsibility and the action shall be deemed to be directed against the designated Member State(s) instead of the EU. This also has implications for the applicant(s) if they have not exhausted remedies ‘in at least one member State jurisdiction’. The proceedings before the ECtHR are to be stayed in order to allow the applicant to pursue domestic remedies in the designated Member State(s), if those remedies are still available. Article 4a AA and the explanatory report to the AA explicitly provide for the activation of the co-respondent mechanism and prior involvement procedure discussed earlier.Footnote ¹⁴⁷

Note that it remains unclear whether the EU will stick to its earlier proposed re-attribution mechanism. It is also unclear whether it is acceptable for non-EU contracting parties to the ECHR. These parties have been critical about the proposal.Footnote ¹⁴⁸ This could explain why the EU is reflecting on a possible alternative solution in the form of an interpretative declaration in relation to the CFSP.Footnote ¹⁴⁹ From a legal perspective, one also wonders how this re-attribution mechanism applies to civilian missions that have an accepted distinct legal capacity under EU law as ‘subsidiary organs’ of the EU. From the perspective of the ECtHR and especially its Behrami and Saramati case law, conduct of subsidiary organs of international organisations is attributable to the organisation.Footnote ¹⁵⁰ Re-attribution to the EU Member States seems only logical when they instead of the EU maintain ‘effective control’.Footnote ¹⁵¹ According to Hillion and Wessel, there is a (rebuttable) presumption in favour of attributing wrongful conduct of such missions to the EU, rather than to the contributing EU Member States.Footnote ¹⁵² In the earlier mentioned KS and KD case, the English High Court also followed this logic and determined in an obiter dictum that the case would most likely fall within the CJEU’s exclusive jurisdiction, agreeing with the submissions of the intervening European Commission that the ‘nature of the claim is not itself concerned with a sovereign policy choice made by the Member States’.Footnote ¹⁵³ It seems that in this scenario it becomes difficult, or at least far-fetched, to use the legal fiction of re-attribution to Member States. One could thus have doubts about the mechanism from the perspective of effective judicial protection if it leads to a legal vacuum in which liability claims are not dealt with by a court.