EU accession to the ECHR:
practical implications
Marie Demetriou QC
Brick Court Chambers
27 November 2014
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3 main practical consequences
 New grounds of substantive challenge (to the extent that the ECHR is different to
the EU Charter of Fundamental Rights)
 A further remedy (before the Strasbourg Court)
 Impact on case-law (convergence between EU CFR/ general principles/ ECHR)
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Current position
 Limited ability to challenge EU measures before Strasbourg Court. Judicial
review is ‘indirect’.
•
•
•
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See: Matthews v UK
Bosphorus v Ireland – “manifestly deficient” protection of human rights
Connolly v 15 Member States
Michaud v France
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Challenges to EU legislation/ acts of institutions
 Post accession: will be able to challenge EU legislation/ measures directly
 Ultimate recourse to Strasbourg Court but ‘domestic remedies’ must first be
exhausted.
 What does that mean?
• Direct challenges; if standing to challenge directly must do so first before
EU Courts;
• Indirect challenges; first exhaust remedies in national courts. If there has not
been a reference for a preliminary ruling, CJEU will first be given
opportunity to consider the case
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National measures based on EU measures
 New opportunities to:
• Mount indirect challenge to the EU measures on ECHR grounds
• Argue that the EU measure must be interpreted in light of the ECHR
 Coherence to multi-targeted challenge
 Strasbourg will be ultimate arbiter
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Impact on case-law
 Convergence
because
greater
cross-fertilisation
between
Luxembourg;
 EU Courts already purport to apply Strasbourg jurisprudence
 There is also ‘reverse effect’, see Kadi and Nada
 Convergence will speed up
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Strasbourg
/
Effect on English courts: a case-study
 Dublin II returns
 MSS v Belgium and Greece – transfer from Belgium to Greece under Dublin Reg
had infringed Art 3 ECHR
 Cases 411 etc/10 NS v SSHD, 21 Dec ‘11
• Duty on M Sts not to return asylum seeker to ‘responsible’ state if there
existed “a systemic deficiency in the asylum procedure and in the reception
conditions of asylum seekers” in the responsible State
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EM(Eritrea) v SSHD
 Is the existence of “systemic deficiencies” a necessary requirement
 Court of Appeal:
• Yes, because that’s proper interpretation of NS;
• Inconsistent with Strasbourg jurisprudence;
• But English courts must apply CJEU’s ruling.
 Supreme Court:
• No, the CJEU did not elevate ‘systemic deficiencies’ into a necessary
requirement. Nothing CJEU said was intended to deviate from the Soering
test
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But now...
 Case C-394/12 Abdullahi, 10 Dec ’13, at [62]:
• “The only way in which the applicant for asylum can call into question [the
jurisdiction of the responsible state] is by pleading systemic deficiencies in
the asylum procedure and in the conditions for the reception of applicants
for asylum” in that state.
• Where does that leave us?
 Where would that leave the English courts post-accession?
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