Thou Shalt Not Oppress a Stranger: On the Judicial Protection of the Human Rights of Non-EC Nationals - A Critique

II. The European Court and the Protection of Human Rights of Non-Community Nationals

One critical dimension of the Court's charge¹³ will be the extent to which it will be willing to review Community and Member State action for violation of fundamental human rights.

The strict legal question I shall pose is the following: what ought to be the jurisdictional limits of the European Court of Justice in protecting the human rights of non-EC nationals?

Part of that answer is simple enough: the Court has stated and restated that it is its `... duty to ensure observance of fundamental rights in the field of Community law'. So, clearly and uncontroversially, all conduct by Community organs in this area, whether legislative, administrative or executive, is subject to review by the Court, which must ensure observance of fundamental human rights by these organs. And one hardly needs reminding that the standard of review is not simply the European Convention of Human Rights (which must serve only as a base line) but all other norms of international law as well as Community norms deriving from the Constitutional traditions of the Member States, which might afford higher protection than the ECHR and other international guarantees.

Since, however, under the present stage of Community law most aspects of life of migrants within the Community are affected by Member State conduct, the delicate question is to inquire what in this area comes under the term `in the field of Community law' and whether and how far should the European Court go in reviewing such conduct of the Member State authorities. As is well known, the European Court has taken a prudent and self-limiting approach in this regard, but one that, nonetheless, has been expanding.¹⁴

In relation to Non-Community nationals the Court has been, as we shall see, particularly prudent and has eschewed the boldness which characterizes some of its jurisprudence in other areas. It is understandable. This area is a political mine field in which Governmental reaction to `judicial meddling' may be particularly harsh.<sup>15</sup> It is also an area which in the past may have appeared less pressing in its social dimension and less critical to the evolving Community architecture and principles. As part of the phenomenology of judging, this is an area which may have appeared to be not sufficiently important to `spend judicial capital', measured in the coin of credibility and legitimacy, which is involved each time a court breaks with the past and makes a new development.¹⁶

This, as I have been at pains to argue, has changed. The stakes now are high. The issue is critical. In other areas the Court has, in the face of a novel political, economic or social context, been willing to review its earlier jurisprudence and change course.¹⁷ I am advocating a similar change here.

In the remainder of the article I shall try to show that this change is not only desirable but can be done well within the legitimate boundaries of judicial discretion and the classical cannons of legal construction and judicial interpretation practised by the European Court.

It may of course be asked whether a more assertive role for the European Court - of expanding the type of case in which it would be willing to review alleged violation of human rights of aliens - is necessary. After all, in most Member States such migrants would enjoy protection under the national legal system by national courts. While in principle and in theory this is true, this solution is not always satisfactory. As Arnull and Jacobs argue, albeit in a slightly different context,

Where national judges are called upon to apply those provisions [protecting human rights] they should clearly give the same weight as the Court of Justice to the protection of fundamental rights. In practice, however, they may be influenced by the status accorded to such rights in their domestic law. Judges in the United Kingdom, for example, where there is no constitutional guarantee of fundamental rights and where the European Convention on Human Rights does not have direct effect may be less inclined to be swayed by arguments based on fundamental rights than judges in Member States where such rights are protected under their national constitutional law and where the European convention is regularly applied by the national courts.¹⁸

One can think of other, political, reasons why national judges may not be as vigilant as the European Court and additionally, the Community standard of protection may, in certain instances, be higher than that prevailing in a particular Member State.

Further, if the scope of Community human rights law is extended to more situations covering non-EC nationals, the Commission of the EC could also play a role by bringing cases against Member State practices in situations where the non-EC national is unable to do so for either legal (e.g. lack of locus standi or direct effect) or practical (ignorance, poverty) reasons.

13 It does not purport to cover the entire area of the treatment of Non-Community nationals under Community law, but rather the very narrow topic of their rights to human rights protection by the European Court. Other aspects are dealt with extensively in other contributions to this issue.

14 Case 159/90, Grogan Opinion of AG of 11 June 1991 (not yet reported) and Case 260/89, Ellinik Radiophonia Tiléorassi (ERT) v. Dimotiki. Judgment of 18 June 1991 (not yet reported). See annotation by Slot, in 28 CML Rev. (1991) 964.

15 Note the caution whereby judicial review by the Court was excluded from the Maastricht Treaty provisions on Home Affairs, the code for immigration policy. See Article L, Title VII (Final Provisions) of Draft Maastricht Treaty.

16 See Kennedy, `Toward a Critical Phenomenology of Judging', 36 Journal of Legal Education (1986) 518.

17 See for example the change of course in the Jurisprudence of the Court, conditioned, inter alia by an appreciation of a new context: Case 302/87, Parliament v. Council (Comitology), [1988] ECR 5615; cf. Case 70/88, Parliament v. Council (Chernobyl), [1990] ECR 2041; Case 45/86, Commission v. Council (General Tariff Preferences), [1987] ECR 1493 cf. Case 8/73, Hauptzollamt Bremerhaven v. Massey-Fergusson GmbH, [1973] ECR 897.

18 Arnull & Jacobs, `Free Movement of Persons in Europe - The Role of the National Judiciary', Paper submitted to the Asser Institute Colloquium on European Law, 12-13 September 1991, at 5. (Hereinafter Asser Institute Colloquium).

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