ARTÍCULO 2: ‘‘Appraisal of a Leishmania major strain stably expressing mCherry fluorescent protein for both in vitro and in vivo

In today ’ s pluralistic European legal order there are two supranational courts that both interpret the scope and the meaning of fundamental rights. Fundamental rights are a set of individuals rights and freedoms which, for example, include the right to life and freedom of expression, and can also be found in national constitutions. ¹ At the supranational level, the European Court of Human Rights (ECtHR) fi rstly plays an important role in interpreting the fundamental rights set out in the European Convention on Human Rights (ECHR or ‘ the Convention ’ ). Th e ECtHR (and its predecessor, the European Commission of Human Rights), entered the scene in the 1950s, allowing individuals, as well as states, to bring claims regarding violations of the mainly civil and political rights of the Convention. From that moment on, the ECtHR has delivered judgments in a wide range of cases where fundamental rights were allegedly interfered with, and in those judgments it has fl eshed out the meaning and scope of the rights laid down in the Convention. ² Th e ECtHR has also played an important part in the development of fundamental rights doctrines. ³ Th e case-law of this Court has generated important eff ects on the way in which fundamental rights are protected at the national level. Th e states parties inter alia have had to make legislative changes in response to specifi c judgments of the ECtHR on individual cases. ⁴ Today, the detailed case-law of the ECtHR and its fundamental rights doctrines are therefore of interest for various areas of law.

5 Th e Court of Justice of the European Union is comprised of three courts: the Court of Justice, the General Court and the Civil Service Tribunal. In this study the term ECJ is used to refer primarily to the fi rst of these courts, i.e., the Court of Justice, which is the highest court. Only the Court of Justice is competent to respond to the questions referred to by the national courts under the preliminary reference procedure. Th e Court of Justice is further competent to deal with applications for annulment actions and actions for failure to fulfi l EU obligations, and with appeals against the judgments of the General Court.

6 See e.g. ECJ 13 May 2014, C-131/12, Google Spain ; ECJ 6 October 2015, C-362/14, Schrems ; ECJ 8 April 2014, Joined cases C-293/12 and 594/12, Digital Rights Ireland ; and ECJ 21 December 2011, Joined cases C-411/10 and C-493/10, N.S. and others .

7 For a statistical overview of the numbers of questions that have been raised by national courts from 2009 onwards, see European Commission, Staff Working Document on the Application of the EU Charter of Fundamental Rights in 2015, SWD(2016), 158 fi nal, p. 8.

On the same European continent, albeit in respect of fewer states, the Court of Justice of the European Union (ECJ), now also plays a role in the protection of fundamental rights. ⁵ Th e ECJ interprets and safeguards the correct application of the law of the European Union (EU). Its primary aim is not to ensure respect for fundamental rights, since it was established for diff erent reasons. It was set up to focus on an economic type of integration between the European states. It has become clear, however, that actions taken by EU institutions and EU member states under EU law can aff ect the protection of fundamental rights. Th e right to property may, for example, be interfered with because of arrangements made at the EU level to establish an internal market.

Moreover, the EU member states have agreed to cooperate in matters of immigration and civil and criminal matters in the area of freedom, security and justice, which can aff ect important fundamental rights such as the prohibition of inhuman and degrading treatment. While, initially, the ECJ ensured through its case-law that fundamental rights were guaranteed as general principles of Community law, and later of EU law, the EU Treaties now clearly mandate for fundamental rights to be protected. Since 2009, the EU has its own written and binding catalogue of fundamental rights, the Charter of Fundamental Rights ( ‘ the Charter ’ ).

So far, the foregoing will be a very familiar story for many readers, especially for those working in the fi eld of fundamental rights protection in Europe. Th ey will know that the ECJ has found a clear place alongside the ECtHR as a court that can off er protection of fundamental rights in Europe. Th e ECJ is competent to interpret fundamental rights in cases that fall within the scope of EU law, and it can decide that EU legislation or other decisions taken by the EU institutions are void if they fail to secure respect for these rights. In several areas, such as privacy law, asylum law and non-discrimination law, the ECJ has delivered important decisions and has recognised important principles. ⁶ Increasingly, the ECJ is being requested to determine how fundamental rights are to be protected within the context of EU law, especially since the Charter has become legally binding. ⁷

Th e ECJ remains, however, quite a novel player in the fi eld of fundamental rights protection. It still needs to clarify how fundamental rights are to be protected within the context of EU law, especially on the basis of the EU Charter. Seeing that the ECJ has less

Chapter 1. Introduction

8 Article 52(3) of the Charter also specifi cally requires such consistency.

9 See ECJ 18 June 1991, C-260/89, ERT .

10 ECJ 18 December 2014, Opinion 2/13 .

11 Th e lack of progress in the accession process since Opinion 2/13 is also confi rmed in European Commission, 2015 Report on the application of the EU Charter of Fundamental Rights, SWD(2016), 158 fi nal, p. 8.

12 See Gerards (2015), p. 47; Douglas-Scott (2011), p. 649; S á nchez (2012), p. 1592; Gerards (2011a), p. 90; and K ü hling (2009), p. 490. Th e ECJ has, however, paid an important contribution in developing the concepts of direct and indirect discrimination in its case-law, see Gerards (2015), p. 47.

experience in dealing with fundamental rights cases, comparisons are oft en made to the way in which other courts interpret and apply fundamental rights. Th e ECtHR is an obvious comparator in this respect, because it protects the same range of fundamental rights as the ECJ and it is, moreover, also situated at the supranational level.

Another reason for choosing the ECtHR as a comparator is substantive in nature. It is considered desirable that fundamental rights are interpreted and applied in the same way in the context of EU law as they are under the Convention, especially since many states will need to comply with the judgments of both of these courts. ⁸ Th e ECJ itself has also explicitly relied on the interpretations which have been provided by the ECtHR in its case-law, and it declared early on that the fundamental rights guaranteed by the Convention are of special signifi cance in that respect. ⁹ It has even been agreed that the EU itself should accede to the Convention, and since 2010, negotiations have been taking place to make specifi c arrangements to realise such accession. As a consequence, the ECtHR would be able to hear claims brought by individuals against the EU for violation of the rights laid down in the Convention. In this way, the ECtHR would have an important role in ensuring that the EU complies with the minimum standards laid down in the Convention and to prevent divergence of the standards of fundamental rights between the Convention and the EU. However, in December 2014, the ECJ raised important objections to the arrangements laid down in a draft accession agreement. ¹⁰ Under the proposed arrangements, several of the specifi c characteristics and important principles of EU law would be interfered with. Since then, the accession process has been on hold, and it is expected to take quite some time before it is continued. ¹¹

Th e ECJ thus still has the fi nal say on how fundamental rights are to be protected within the EU context. For reasons of consistency, however, it is generally expected that the ECJ would have resort to principles similar to those which the ECtHR has developed for the interpretation and application of fundamental rights. Th e ECtHR has, for example, developed its famous margin of appreciation doctrine, which leaves states a certain discretion in their legislative, administrative or judicial choices in areas where fundamental rights are at stake. It has also developed elaborate standards on the proportionality assessment that states must undertake to justify restrictions of fundamental rights. Th e ECJ has been somewhat slow in developing similar fundamental rights doctrines in its own case-law, and it has been criticised in that regard. ¹² Fundamental rights doctrines can help to bring clarity, certainty and predictability for

13 K ü hling (2009), p. 490.

14 K ü hling (2009), p. 490; and Gerards (2012b).

15 Douglas-Scott (2011), p. 681.

16 For examples of judgments of such international bodies, see IACHR 29 July 1988, Inter-Am.Ct.H.R.

Series C No 4, V é lasquez Rodr í guez v. Honduras (Merits), paras 160 – 166 and 174 – 177; and African Commission on Human and People ’ s Rights No 211/89 (1 May 2001), Legal Resources Foundation v.

Zambia , para. 62. For an overview of the recognition of positive obligations by diff erent international and national legal systems, see Dr ö ge (2003), pp. 268 – 284; and Stachel (2006), pp. 20 – 29.

17 See Mowbray (2004); and Xenos (2012). Th is development in particular is discussed in chapter 3.

the actors who are subject to this particular fundamental rights regime. ¹³ Development of such doctrines is considered all the more necessary because of the concerns that continue to exist over the democratic legitimacy of decisions that are made at the EU level. ¹⁴ Moreover, by developing fundamental rights doctrines the ECJ could fi nally remove doubts over the reality of its intention to protect fundamental rights and it could change its current image, as a court that mainly protects interests of an economic kind. ¹⁵

At the same time, it should be noted that the ECJ is, indeed, a rather diff erent court compared to the ECtHR. It has diff erent interests to protect under EU law, it employs a rather diff erent judicial style, and also takes a diff erent position towards individuals and the national and EU authorities. It can therefore be questioned whether and to what extent certain fundamental rights doctrines can really be expected to be developed within the context of EU law in a similar way by these two diff erent courts.

Against this background, this study focuses on the potential for the development by the EU of one particular fundamental rights doctrine – that of positive obligations.

Originally developed by the ECtHR, the question is raised whether and to what extent it can be incorporated by the EU Courts, especially in light of the considerations discussed above. Th e following section fi rst briefl y explains what the concept of positive obligations means (section 1.1.2.) and, secondly, what types of questions have been raised regarding this concept in the academic debates on the EU system of fundamental rights protection (section 1.1.3.). Th e main question of this research is then presented (section 1.1.4.), followed by the aims and objectives of this study (section 1.2.), and the methods and approaches used to answer the main question of this study (section 1.3.). Next, in order to set a solid baseline for the discussion that is undertaken in this study, a working defi nition is provided of the concept of positive obligations in relation to the notion of fundamental rights within the context of EU law (section 1.4.). Finally, the outline of this book is provided (section 1.5.).