Respect for Human Rights as a General Principle of EU External Relations Law: Between De Jure Obligations and De Facto Standards

Table of Contents: 1. Introduction – 2. The de jure standard of fundamental rights protection – 2.1. Treaty foundations of the EU’s human rights obligations – 2.2. Human rights obligations flowing from the Charter of Fundamental Rights – 3. The de facto standard of fundamental rights protection – 3.1. Fundamental rights and international agreements – 3.2. A similar or different approach in the CFSP? – 3.3. How to square the CJEU’s approach with the EU’s fundamental rights obligations? – 4. Conclusion.

Abstract: Respect for fundamental rights constitutes a general principle of EU law, which the EU is bound by not only in its internal action but also when it acts on the international plane. This follows from various provisions of the TEU and TFEU, as well as from the Charter of Fundamental Rights of the EU. Nonetheless, the CJEU shows itself to be oftentimes deferential towards fundamental rights issues in the EU’s external action. Even though the EU remains fully bound by its fundamental rights obligations, a more deferential scrutiny by the CJEU allows the EU increased leeway in this respect. While not always the case, this bears the risk of creating a gap between the de jure and de facto fundamental rights obligations of the EU in its external action. This article examines this tension and aims to assess how the increased discretion of the EU institutions may nonetheless be reconciled with the limits imposed by its fundamental rights obligations.

Keywords: respect for fundamental rights – general principle of EU external relations law – international agreements – Common Foreign and Security Policy (CFSP) – level of scrutiny of the CJEU – Charter of Fundamental Rights.

1.   Introduction

Post-Lisbon, various provisions across the EU Treaties express the obligation for the EU to ‘uphold’, ‘promote’, ‘contribute to’, ‘be guided by’, ‘respect’ or ‘pursue’ fundamental rights in its interactions with the wider world.[1] In addition, the Charter of Fundamental Rights of the EU (Charter) requires EU institutions to ‘respect’, ‘observe’ and ‘promote’ fundamental rights in a general manner, irrespective of the area of EU law in which they operate. Ranging from rather permissive to mandatory language, by now the Court of Justice of the European Union (CJEU) has made it clear that, also in its external action, it is an obligation – and not just an option – for the EU to act in accordance with fundamental rights.[2]

However, Articles 3(5) and 21(2)(a) of the Treaty on European Union (TEU) prescribe that the EU shall uphold, promote and safeguard its values and interests on the international plane. In the case law of the CJEU, this balancing of values and interests has translated into the recognition of the importance of respect for fundamental rights in the EU’s external action,[3] while at the same time generally granting the EU institutions considerable discretion in balancing their fundamental rights obligations with political and economic considerations.[4] This deferential approach is motivated by the inherently political, economic and legal interests and considerations the EU must reconcile in the conduct of its external relations, thereby not wanting to interfere in political choices.[5]

However, this oftentimes lowered standard of scrutiny bears the risk of creating a gap between the de jure fundamental rights obligations of the EU and the de facto applicable standard. While in theory the EU is as much bound by fundamental rights in its external action as in the conduct of its internal policies,[6] a more deferential scrutiny of the EU’s compliance with those rights by the CJEU may have the effect of de facto lowering the actual level of fundamental rights protection.[7] This begs the question of how this lowered level of scrutiny may be reconciled with the EU being a community based on the rule of law, in which all acts of the institutions are subject to effective judicial review, including with respect to their fundamental rights compliance,[8] and how the EU may still be found to act within the boundaries of its fundamental rights obligations despite the considerable leeway it is afforded.

This contribution is structured as follows. Section 2 first examines the EU’s fundamental rights obligations in its external action by analysing their legal foundations in the EU Treaties and the Charter, respectively. Section 3 explores how these fundamental rights obligations translate into the case law of the CJEU, focusing on the level of judicial scrutiny applied by the CJEU towards fundamental rights issues in the EU’s external action. Illustrative of fundamental rights issues arising within the ‘ordinary’ domains of the EU’s external action, the analysis first considers fundamental rights issues arising in the context of international agreements concluded by the EU – an area particularly characterised by a broad margin of discretion for the EU legislator, necessitated by the imperative to find common ground with third countries. Next, the CJEU’s approach in this area is compared and contrasted with its approach in the Common Foreign and Security Policy (CFSP), as a sui generis domain of the EU’s external action, before finally examining how the CJEU’s approach may be squared with the EU’s de jure fundamental rights obligations.

2.   The de jure standard of fundamental rights protection

2.1.  Treaty foundations of the EU’s human rights obligations

The Union’s objectives on the international scene are listed in Articles 3(5) TEU and 21 TEU. Article 3(5) TEU stipulates that the Union, in its relations with the wider world, shall uphold and promote its values and interests and contribute to the protection of its citizens. Similarly, Article 21 TEU starts with the statement that, on the international scene, the Union’s actions shall be guided by the principles which have inspired its own creation, development and enlargement. It follows from those provisions that the Union’s actions on the international scene must aim to promote its values and shall be guided by the principles on which it is itself founded. These values and principles, which constitute ‘an integral part of the very identity of the European Union as a common legal order’,[9] are laid down in Article 2 TEU and include respect for the rule of law and human rights.[10]

Articles 3(5) TEU and 21 TEU project and extrapolate these principles to the EU’s actions on the international plane.[11]Whereas Article 3(5) TEU reads that the EU shall contribute to the protection of human rights, Article 21(1) TEU provides that the Union’s external actions shall be guided by the universality and indivisibility of human rights and fundamental freedoms. In addition, the second paragraph of Article 21 TEU postulates that the EU shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to safeguard its values and consolidate and support human rights.[12] Article 21(3) TEU specifies that the Union shall respect these principles and pursue these objectives in the different areas of its external action, including in those areas covered by Part Five of the Treaty on the Functioning of the European Union (TFEU).[13] Conversely, Article 205 TFEU, which serves as a common provision to the external action provided for by Part Five of the TFEU, points back to the principles and objectives laid down in Article 21 TEU and requires that the Union’s actions under that Part are conducted in accordance with the directives laid down in that provision. Article 205 TFEU recreates the obligation found in Article 21(3) TEU,[14] and, by cross-referencing each other, both provisions serve as a bridge between the TEU and TFEU, and the specific external policies provided for in the latter.[15] Similarly, Article 23 TEU extends the principles in Article 21 TEU to the CFSP.

Articles 3(5) TEU, 21 TEU, 23 TEU and 205 TFEU cannot simply be ignored by the EU in the conduct of its external actions.[16] In an imperative manner, these provisions spell out that the EU ‘shall’ promote, uphold, contribute to, be guided by, pursue and act in accordance with the principles and objectives laid down therein.[17] Consequently, the CJEU stated in Ezz and Others v Council that it follows from a joint reading of Articles 21 and 23 TEU that respect for the values and principles laid down therein is ‘required of all actions of the European Union, including those in the area of the common foreign and security policy (CFSP)’.[18]Similarly, the CJEU found in Opinion 2/15 that Article 207(1) TFEU, read in conjunction with Articles 21(3) TEU and 205 TFEU, imposes an ‘obligation on the European Union to integrate those objectives and principles into the conduct of its common commercial policy’,[19] and that Article 3(5) TEU ‘obliges the European Union to contribute, in its relations with the wider world, to ‘free and fair’ trade’.[20] As a consequence, the integration of human rights in the EU’s external relations may be considered ‘a constitutional obligation and not a mere policy choice’.[21]

2.2.  Human rights obligations flowing from the Charter of Fundamental Rights

Next to the different Treaty provisions setting out the EU’s fundamental rights obligations in the conduct of its external relations, Article 6 TEU enshrines the EU’s adherence to fundamental rights in a more general manner. The first paragraph of Article 6 TEU grants the Charter in this respect the same legal value as the EU Treaties and puts it thereby on the same footing as EU primary law. Article 51(1) of the Charter provides that the provisions of the Charter are addressed to the institutions, bodies, offices and agencies of the Union.

In Opinion 1/15 and Opinion 1/17, the CJEU found that international agreements concluded by the Union should be entirely compatible with the Treaties and the constitutional principles stemming therefrom.[22] This follows from the fact that international agreements entered into by the Union form an integral part of EU law,[23] and rank above secondary EU law but below primary EU law in the EU’s hierarchy of norms.[24] As the Charter has obtained the status of primary EU law since the entry into force of the Lisbon Treaty,[25] international agreements should necessarily be compatible with the fundamental rights laid down therein.[26] As such, the Lisbon Treaty consolidated and reinforced the situation prevailing before the entry into force of the Lisbon Treaty. As the CJEU held in the pre-Lisbon Kadi I case, ‘obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights’.[27]

It is noteworthy that the CJEU in both Opinion 1/15 and Opinion 1/17 did not refer to Article 51(1) of the Charter to determine the applicability of the Charter to the envisaged international agreements. Instead, the CJEU merely reiterated that international agreements concluded by the EU form an integral part of EU law and should therefore be compatible with the (higher-ranked) primary law provisions of the Charter.[28] In doing so, the CJEU relied on the hierarchy of norms in EU law to require compliance with the provisions of the Charter rather than relying on the specific provision setting out the scope of application of that instrument. In this respect, the CJEU followed the approach proposed by both Advocate General (AG) Mengozzi in Opinion 1/15 and AG Bot in Opinion 1/17,[29] albeit that AG Bot also mentioned in passing that the compatibility of international agreements with primary EU law ‘of course includes the Charter, pursuant to article 51 thereof’.[30]

Arguably, this observation may be explained by reference to the nature and origin of the opinion procedure. Article 218(11) TFEU, the wording of which largely dates back to the 1957 Treaty of Rome,[31] only explicitly refers to an assessment of the compatibility of an envisaged agreement ‘with the Treaties’. Although the Charter was put on the same footing as the Treaties with the entry into force of the Lisbon Treaty,[32] Article 218(11) TFEU was not amended accordingly. Nevertheless, the CJEU has confirmed that, since the entry into force of the Lisbon Treaty, the notion of ‘with the Treaties’ in Article 218(11) TFEU should be read as including the Charter.[33]Consequently, Article 218(11) TFEU indirectly allows the CJEU to sidestep the issue of the Charter’s personal scope of application ex Article 51(1) of the Charter. Even then, however, the CJEU must still examine whether the international agreement falls within the material scope of the specific Charter provisions at issue.[34]

Whereas reliance on the hierarchy of EU norms has resulted in the Charter’s scope of application being delineated on the basis of an extraneous legal theory of EU law in the context of the EU’s external action, the outcome remains nonetheless the same as if Article 51(1) of the Charter were applied directly. Article 51(1) of the Charter provides that the provisions of the Charter are addressed to the institutions, bodies, offices and agencies of the Union. Under Article 51(1), a duty to respect fundamental rights rests on all Union institutions and bodies,[35] and those fundamental rights are applicable in all situations governed by Union law, including in the external sphere.[36] The CJEU has recurrently held that it follows from that provision that the Charter is addressed to these institutions, bodies, offices and agencies ‘without exception’ and that, therefore, fundamental rights are designed to preside over the exercise of their powers.[37] It follows from this ‘general application of fundamental rights’[38] that the EU institutions cannot avoid their obligations under the Charter, regardless of the context or capacity they act in.[39] With regard to the EU institutions, bodies, offices and agencies, the Charter’s scope of application is thus defined in a personal/institutional manner.[40]Whereas the Member States are only bound by the Charter when they implement Union law,[41] the EU institutions are, by contrast, required to comply with the provisions of the Charter at all times.

3.   The de facto standard of fundamental rights protection

In its case law, the CJEU recognises the specific nature of the EU’s external action insofar as it generally allows the Union a wide margin of discretion in the conduct of its external policies.[42] Such a broad discretion is a corollary of the inherently political, economic and legal interests and considerations the EU should take into account and aim to reconcile in the conduct of its external action.[43] This is especially true when the Union concludes international agreements with third States or international organisations and needs to find common ground with the latter.[44] Concerning association agreements in particular, the General Court found in Front Polisario v Council that an association agreement ‘constitutes a complex contractual entity comprising several strands and reflects the common will of the parties to establish close relations and, where appropriate, to intensify them’, and that, in the context thereof, ‘the institutions must be able to reconcile the various interests arising in relations with the non-member State which is a partner of the European Union and determine the most appropriate strategy in that regard’.[45] As a result, the General Court concluded that the EU enjoys a broad margin of appreciation in light of the complex (political and economic) assessment to be made by the institutions.[46] Arguably, similar considerations apply to other types of international agreements.[47] As a direct consequence of the broad margin of discretion afforded to the Union, the CJEU shows itself more deferential to the choices made by the EU institutions. Nonetheless, the following section demonstrates that, while the overall trend indeed suggests a more deferential approach by the CJEU, the reality is slightly more nuanced, and may perhaps more accurately be described as a sliding scale as regards the depth of scrutiny exercised by the CJEU in relation to fundamental rights issues (3.1.). Afterwards, the CJEU’s approach to international agreements is compared to its treatment of fundamental rights issues in the even more sensitive domain of the CFSP (3.2.). Finally, it is examined how a more deferential scrutiny by the CJEU can be reconciled with the EU’s explicit fundamental rights obligations as enshrined in various provisions of primary EU law (3.3.).

3.1.  Fundamental rights and international agreements

While the CJEU generally grants the EU a wide margin of discretion in the conduct of its external action, resulting in a deferential scrutiny of the choices made, the picture is slightly more nuanced as regards the scrutiny of fundamental rights issues in relation to international agreements. As the following overview of relevant case law demonstrates, in practice, the discretion granted to the EU and the ensuing level of scrutiny applied by the CJEU rather present themselves as a sliding scale, ranging from extensive deference to strict scrutiny and a variety of shades in between. 

In Mugraby, the applicant pursued an action for failure to act as well as an action for damages against the Council and Commission, alleging that they inter alia failed to suspend the economic aid granted to Lebanon under the EU-Lebanon Association Agreement, in view of Lebanon’s alleged violation of the human rights clause in the agreement.[48] The General Court found however that the refusal of the Council and the Commission to suspend the association agreement did not amount to a manifest error of assessment, given that they enjoy broad discretion in the conduct of their external relations.[49] The appeal against this point was dismissed by the CJEU.[50]

In Front Polisario v Council, the General Court found that, although the Charter does not prevent the EU institutions from concluding an international agreement that applies to disputed territory, the impact of the agreement on the enjoyment of fundamental rights by the population of such territory must be examined by the Council before the approval of the agreement.[51]The General Court concluded that it should determine whether the Council examined carefully and impartially all the relevant facts before concluding the international agreement at hand, one of those facts being potential fundamental rights infringements resulting from the production of goods for export to the EU on the basis of that agreement.[52] Since the Council failed to carry out any assessment at all of the fundamental rights impact of the international agreement, the General Court found the existence of a manifest error of assessment.[53] As a consequence, the General Court did not arrive at the merits of the claims of alleged fundamental rights violations. In addition, while AG Wathelet concurred with the General Court’s reasoning,[54] the CJEU quashed the General Court’s judgment, albeit for reasons unrelated to the fundamental rights allegations but pertaining to the territorial scope of the association agreement at issue.[55] Hence, it is hard to draw clear conclusions from the General Court’s findings as regards the applicability and application of the ‘manifest errors’-test in case of (alleged) fundamental rights infringements resulting from international agreements concluded by the EU, but the failure to make a fundamental rights impact assessment in the first place does in any event constitute such a manifest error of assessment.

In Préfet du Gers I and Préfet du Gers II, the question before the CJEU was whether the Withdrawal Agreement that the EU concluded with the United Kingdom violated several rights enshrined in the Charter because UK nationals that exercised their free movement rights pre-Brexit were not granted a right to vote in the municipal elections and the elections for the European Parliament respectively. In both judgments, the CJEU stressed that, in the conduct of their external relations, the EU institutions enjoy broad discretion in policy decisions. As a consequence, they may make the conclusion of international agreements conditional upon a certain level of reciprocity and the existence of mutual advantages, and are not required to unilaterally grant third-country nationals (in casu UK nationals) the right to vote and to stand as a candidate for the municipal and European elections.[56] Although this time the CJEU did not explicitly refer to the ‘manifest errors’-test, by recognising the EU institutions’ wide margin of discretion, it implicitly acknowledged that only manifest errors of assessment might have led to a violation of the Charter.

In Opinion 1/17, the CJEU was presented with a novel opportunity to pronounce itself on the applicable standard of review for assessing the fundamental rights compatibility of an international agreement, in particular the compatibility of the EU-Canada Comprehensive Economic and Trade Agreement (CETA) with the right to equal treatment and the right to an effective remedy (Articles 20, 21(2) and 47 of the Charter). AG Bot was of the opinion that, as regards the right to equal treatment, the EU institutions enjoy broad discretion in their external actions, and that, as a consequence, ‘judicial review of whether a difference in treatment relates to a legally permitted objective pursued by the measure which brings about such a difference and whether it is proportionate to that objective must be limited to a review as to manifest errors’.[57] With regard to the right to an effective remedy, AG Bot argued that the standard of judicial independence and impartiality should be more lenient and tailored to the hybrid nature of the Investor-State dispute settlement (ISDS) mechanism established by the CETA, presenting both characteristics of a court and arbitration.[58] The AG’s call for a lower standard as regards the right to an effective remedy was thus not explicitly linked to the Union’s discretion in its external relations but was instead inspired by the hybrid character of the ISDS mechanism, albeit that this hybrid character of course resulted from the negotiations between the EU and Canada, and is therefore the result of specific policy choices, necessitating a more deferential approach.[59]

Contrary to AG Bot, the CJEU did not address the level of scrutiny as regards the right to equal treatment, since it found the right to equal treatment not to be applicable in the first place. As regards Article 21(2) of the Charter, the CJEU concluded that that provision only applies in case of differences in treatment between EU citizens, and thus not to the alleged difference in treatment between Canadian and Union investors.[60] With respect to Article 20 of the Charter, the CJEU held that the situation of a Canadian investor investing in the EU cannot be considered comparable with the situation of a Union investor investing in the EU; therefore, their equal treatment could not be required.[61]

Regarding the compatibility of the ISDS mechanism with the right to an effective remedy ex Article 47 of the Charter, the applied level of scrutiny is debated. The CJEU first found that the ISDS mechanism should be accessible and independent pursuant to Article 47 of the Charter, irrespective of its hybrid character.[62] However, the accessibility and independence of that mechanism should, according to the CJEU, be ensured ‘having regard to the nature and specific features of such bodies and to the international framework of which those bodies form part’.[63] In addition, the CJEU held that the required level of accessibility and independence of the CETA Tribunal should be determined in light of the objective pursued by the CETA, i.e. the pursuit of free and fair trade as laid down in Article 3(5) TEU, and this through the establishment of a mechanism standing outside the legal system of the Parties, so as to strengthen the confidence of investors.[64] In this regard, the President of the CJEU, Koen Lenaerts, argued in a speech at a seminar organised by the Belgian Ministry of Foreign Affairs that the CJEU in its Opinion 1/17 struck a balance between the policy objectives of promoting and modernising investment protection and the need to maintain the constitutional framework on which the EU is founded[65] – the latter comprising respect for the values in Article 2 TEU and the provisions of the Charter.[66] This rather contextual reading of Article 47 of the Charter seems to reflect the more lenient approach advocated for by AG Bot, to the extent that the specific characteristics of the ISDS mechanism, as well as its objectives and the international framework in which it operates, were taken into account. 

Damjanovic, de Sadeleer and Ciampi argue that the CJEU indeed adopted a less strict approach compared to the standard applied internally insofar as the CJEU accepted the reconcilability of the CETA Joint Committee’s binding powers to interpret the CETA with the independence of the CETA Tribunal.[67] Additionally, as regards the accessibility of the ISDS mechanism, Van der Loo and Fanou put forward that the CJEU seemed easily satisfied with and put a lot of trust in the political commitments made outside the CETA.[68]

Szepelak argues nonetheless that, in contrast to Front Polisario v Council, arguments of institutional discretion were not raised in Opinion 1/17, thereby seemingly implying that the CJEU exercised a full and thorough review of the fundamental rights compatibility of the CETA.[69] In a similar vein, Rapoport opines that the CJEU required a level of protection similar to the level of protection required internally.[70] In this regard, when setting out the relevant rules, the CJEU indeed referred to its internal case law on the accessibility and independence of courts.[71] However, it should be noted that these rules are rather general in nature, and what truly matters is how these rules are applied by the CJEU. Even when the ‘manifest errors’-test is applied, the ‘normal’ rules are still applicable, but the CJEU is more deferential in assessing the application of these rules in casu. In this regard, it cannot be ignored that, although the CJEU presented its case law on the ‘internal dimension’ of Article 47 of the Charter as the applicable rules, at certain points it nonetheless showed itself easily satisfied with the guarantees provided in the CETA, raising the question whether similar arrangements in the laws of the Member States would be accepted by the CJEU as well. Whether the more deferential nature of the CJEU’s assessment in Opinion 1/17 amounts to the application of the ‘manifest errors’-standard, however, is hard to judge based on the CJEU’s opinion. 

Finally, in Opinion 1/15, the CJEU was confronted with the question of whether the envisaged EU-Canada Passenger Name Record (PNR) Agreement was compatible with Article 16 TFEU and Articles 7 and 8 of the Charter. The CJEU did not explicitly entertain the question regarding the level of scrutiny it ought to adopt.[72] It is evident from AG Mengozzi’s opinion that this was nonetheless a point of contention during the proceedings. The European Parliament, Estonia and the European Data Protection Supervisor argued that the interference with the right to private life and the right to data protection should be subject to strict review by the CJEU, and thus not to the more superficial ‘manifest errors’-test.[73] In support thereof, they relied on the CJEU’s prior judgments in Digital Rights Ireland and Schrems I,[74] given that the CJEU found in these cases that the Commission’s discretion to determine the adequacy of the level of data protection ensured by a third country was limited in light of the importance of data protection and the large number of persons potentially negatively affected by the transfer of their data to that third country.[75] By contrast, Ireland argued that the strict standard of scrutiny applied by the CJEU in these judgments could not be applied in Opinion 1/15 since ‘it is necessary to take account of the international and negotiated nature of the act at issue’, i.e. an international agreement, compared to the (unilateral) acts of secondary legislation at stake in Digital Rights Ireland and Schrems I.[76] In turn, France put forward that the interference resulting from the PNR Agreement was not particularly serious, and therefore, the discretion of the EU legislature could not be excessively restricted.[77] Finally, the United Kingdom held that the PNR Agreement related to issues of public security and safety – areas in which the EU legislature must be granted a ‘reasonable margin of discretion’.[78] AG Mengozzi firstly admitted that the scope of the EU’s discretion may, in principle, indeed differ depending on whether an international agreement or an internal and unilateral act of secondary legislation is envisaged, since the former necessarily requires negotiations with third countries.[79] Nonetheless, the AG proposed a strict review by the CJEU for the same reasons as those set out in Digital Rights Ireland and Schrems I.[80]

Although the CJEU did not extensively address the discussion, it nevertheless applied a strict review of the fundamental rights interferences arising from the PNR Agreement, requiring the level of data protection in Canada to be equivalent to the level of data protection within the European Union.[81] The CJEU stressed that EU law confers a high level of data protection on individuals, and this high level of protection should continue when personal data is transferred to a third country.[82] If the level of data protection in the third State were not equivalent to that provided within the EU, such as if the EU was left a broader discretion when concluding data-related international agreements with third States, the level of data protection in the EU could easily be circumvented by transferring personal data to these third States for the purpose of being processed there.[83] The strict standard of review applied by the CJEU in Opinion 1/15 must thus be distinguished from its more deferential approach in other cases and follows from the specific nature of the right to data protection and the risk of circumvention inherent to that right.

From the foregoing analysis of case law, it follows that the CJEU adopts a rather diffuse approach in relation to fundamental rights issues within the context of international agreements concluded by the CJEU. While generally the CJEU recognises the EU’s wide discretion in the conduct of its external relations, showing itself deferential towards the policy choices adopted, the foregoing overview presents the CJEU’s level of scrutiny as regards those fundamental rights issues rather as a sliding scale, ranging from far-reaching deference to a full and in-depth scrutiny, albeit that the general approach leans towards the former. The next section compares the CJEU’s approach vis-à-vis international agreements, as part of the ‘ordinary’ domains of the EU’s external action, with its approach in the CFSP, before seeking clarifications and justifications for the CJEU’s approach.

3.2.  A similar or different approach in the CFSP?

Although still in constant development, the existing case law of the CJEU on fundamental rights in the field of the CFSP already allows us to compare (preliminarily) the level of scrutiny performed by the CJEU with that in other domains of the EU’s external action. Here too, the CJEU generally appears to adopt a deferential perspective in assessing fundamental rights issues, albeit that, at least in the speech adopted by the CJEU, a more thorough scrutiny may be discerned in assessing the validity of EU restrictive measures. 

While the former second pillar of the CFSP has been integrated into the EU structure post-Lisbon, it nonetheless remains subject to a sui generis framework, including a more limited role for the CJEU compared to its general jurisdiction under Article 19(1) TEU. Pursuant to Articles 24(1) TEU and 275 TFEU, the CJEU’s jurisdiction in the CFSP is limited to monitoring compliance with Article 40 TEU and reviewing the legality of restrictive measures adopted on the basis of Chapter 2 of Title V of the TEU. Nonetheless, the integration of the CFSP in the EU constitutional framework has subjected the Union’s actions within the field of the CFSP to the same values and principles in Articles 2 and 21 TEU as all other fields of EU (external relations) law.[84]

The CJEU’s (more) limited jurisdiction within the field of the CFSP may appear inconsistent with the integration of the CFSP in the EU’s constitutional framework, including the requirements of respect for the rule of law and fundamental rights following from Articles 2, 21 and 23 TEU.[85] In her opinion in KS and KD, AG Ćapeta proposed remedying that tension by recognising that, ‘as the breach of a fundamental right cannot be a policy choice, the EU Courts must be able to control whether that limit was crossed’ by exerting jurisdiction over any claim relating to the fundamental rights compatibility of EU action within the CFSP, going beyond the areas summed up in Articles 24(1) TEU and 275 TFEU.[86] Nonetheless, due to the political sensitivity of the CFSP and the corresponding rationale behind the limitations on the CJEU’s jurisdiction within this field, AG Ćapeta recognised that, once the CJEU has asserted jurisdiction, it should not enter into an in-depth examination but should rather show itself more deferential to the choices made by the EU legislator:

‘I acknowledge that the respect for fundamental rights can be ensured in different ways, and can leave some room for policy choices. Most rights guaranteed by the Charter can be limited if such limitation serves another legitimate purpose and achieves it in a proportionate way (…) The assessment of justifications as well as the appropriateness and necessity of the measures which limit certain rights might differ. In that respect, there is a reason for the deference of the EU Courts to the political choices in complex issues of international politics. The Court seems to be sensitive to that concern, as demonstrated by its case-law’.[87]

Hence, at first sight, AG Ćapeta appeared to advocate in favour of streamlining the CJEU’s approach towards fundamental rights issues in the EU’s external action, bringing it in line with the approach generally adopted by suggesting a more deferential test (see Section 3.1.).

Yet, the CJEU refused to follow the AG’s proposal to exert jurisdiction over all fundamental rights claims within the CFSP and made it clear that fundamental rights claims cannot in and of themselves establish jurisdiction for the CJEU without foregoing the limitations on its jurisdiction following from Articles 24(1) TEU and 275 TFEU.[88] Instead, the CJEU interpreted those provisions as entailing that, next to the exceptions in Articles 24(1) TEU and 275 TFEU, it only has jurisdiction within the CFSP with respect to fundamental rights claims related to acts or omissions involving non-political or non-strategic choices, but not as regards acts or omissions involving political or strategic choices.[89]

The CJEU did not specify what level of scrutiny should be performed by the General Court in reassessing the fundamental rights claims for which it has jurisdiction. From the CJEU’s settled case law, it follows, however, that the CJEU will only find the EU liable in case of a sufficiently serious breach of a rule of law intended to confer rights on individuals, which only arises in case the EU institution has manifestly and gravely disregarded the limits on its discretion.[90] This deferential approach is justified by the CJEU by reference to the need to strike a balance between the protection of individuals, on the one hand, and the leeway to be accorded to the institutions in order not to paralyse their actions, on the other hand.[91] Hence, while the CJEU did not accept AG Ćapeta’s call for a generalised competence in the case of fundamental rights claims, in line with her opinion, the claims for which it has jurisdiction – i.e. those resulting from acts or omissions involving ‘non-political’ and ‘non-strategic’ choices – will most likely be subjected to a deferential assessment. Yet, it needs no explanation that the requirement of a sufficiently serious breach of EU law and the ensuing deferential approach adopted by the CJEU may pose a serious impediment to the effective enforcement of their fundamental rights by individuals, including in the CFSP,[92] begging the question of whether the balance has not tipped too much in the direction of allowing the EU institutions the necessary margin of manoeuvre. 

While the foregoing would align with the CJEU’s approach to damages claims in relation to restrictive measures adopted within the CFSP,[93] it furthermore sharply contrasts with its speech on the review of the validity of restrictive measures in the light of fundamental rights. The CJEU, for instance, consistently holds in relation to restrictive measures that it should ‘ensure the review, in principle the full review, of the lawfulness of all Union acts in the light of the fundamental rights forming an integral part of the European Union legal order’.[94] In addition, the CJEU has found that, when the Council adopts restrictive measures based on decisions of authorities of a third State, it must carefully verify that the third State’s legislation provides protection of the right of defence and the right to an effective remedy equivalent to that guaranteed at the EU level.[95] The judgment of Azarov constituted in this respect an important change in the case law, reinforcing the required fundamental rights protection insofar as the CJEU corrected the General Court’s earlier finding that:

‘only if the Council’s political decision to support the new Ukrainian regime, including by way of cooperation in the form of the restrictive measures at issue, proved to be manifestly erroneous, in particular because fundamental rights are being systematically violated in that country following the change of regime, could any inconsistency between the protection of fundamental rights in Ukraine and that in place in the European Union have a bearing on the legality of maintaining those measures’.[96]

Hence, the CJEU made it clear that, instead of limiting itself to the ‘manifest errors’-test, the General Court should perform a more rigorous assessment. It remains to be seen whether the CJEU will extend KS and KD so as to include actions for annulment,[97] and, in doing so, whether it will adopt a similar ‘full review’ towards fundamental rights claims, or will rather resort to a more deferential approach.

3.3.  How to square the CJEU’s approach with the EU’s fundamental rights obligations?

Ever since Les Verts, the CJEU has underscored that the EU is a community, now a union, based on the rule of law in which neither the EU nor its Member States can escape judicial review of the measures adopted by them, for the purpose of which the Treaties provide a complete system of remedies.[98] In this context, the Courts of the European Union are entrusted with the task of performing a full review of the lawfulness of all Union acts, including in light of the fundamental rights recognised in and protected by EU law.[99] In Opinion 1/15, the European Parliament therefore explicitly argued that the CJEU’s judicial scrutiny of the restrictions imposed on the rights to data protection and privacy must be strict, ‘since, in particular, interferences with fundamental rights are at issue’.[100] This begs the question of how this may be reconciled with the oftentimes more deferential approach adopted by the CJEU in relation to fundamental rights issues. Although, despite a more deferential scrutiny by the CJEU, the EU institutions remain fully bound by fundamental rights, even in their external action,[101] it cannot be ignored that this leaves the EU institutions with more leeway in their compliance with those rights, with potentially detrimental effects on the fundamental rights protection of individuals.

The analysis in Section 2 has shown the obligatory nature of upholding fundamental rights when the Union acts internationally. However, the various provisions found in the Treaties and the Charter – Articles 3(5) TEU, 21 TEU, 205 TFEU, and Article 51 of the Charter – offer a variety of formulations as regards the Union’s fundamental rights obligations on the international plane, ranging from permissive to rather mandatory language. These formulations may either suggest that this obligation is merely aspirational in nature (‘the EU must aim for their fulfilment’) or, instead, rather obligatory (‘the EU must respect fundamental rights, full stop’). Put differently, this variation raises the fundamental question of whether these provisions merely serve as an obligation of means or, instead, whether they impose an obligation of result on the EU.

Articles 3(5) TEU, 21 TEU and 205 TFEU extrapolate the foundational values of the Union outlined in Article 2 TEU to the external sphere of the EU’s activities.[102] Article 2 TEU does not only function as a catalogue setting out the values on which the Union is founded and which the Member States share with each other,[103] nor does it merely provide for policy guidelines or intentions.[104] Instead, the CJEU has clarified in its judgments on the Rule of Law Conditionality Regulation that these values carry legally binding obligations for the Member States.[105] Merely aiming for the fulfilment of these values is insufficient. Article 2 TEU imposes an obligation as to the result:[106] the Member States must adhere to the values enshrined therein, and this is a precondition for the enjoyment of all the rights they derive from EU law.[107]

Articles 3(5) TEU, 21 TEU and 205 TFEU employ somewhat ambiguous, if not contradictory, language. While Articles 3(5) TEU requires the Union to ‘uphold’ and ‘promote’ its values, and to ‘contribute’ to the protection of human rights in its relations with the wider world, Articles 21(1) TEU dictates that the Union’s actions on the international scene shall be ‘guided’ by its foundational principles. In turn, the third paragraph of Article 21 TEU requires the Union to ‘respect’ these principles across the different areas of its external action. Article 205 TFEU brings together these different formulations by stipulating that the Union’s external actions under Part Five of the TFEU shall be guided by the principles, pursue the objectives and be conducted in accordance with the principles and objectives laid down in Article 21 TEU. In a similar vein, Article 51 of the Charter dictates that the Union (and the Member States, provided they implement Union law) shall respect the rights and observe the principles laid down in the Charter, as well as promote the application thereof. This semantic ambiguity creates uncertainty regarding the normative effect of these provisions.[108]

A less strict obligation in the form of an obligation of means would recognise the nature of the different values enumerated in Articles 3(5) and 21(1) TEU, and the lack of hierarchy in the Treaties as regards these external values and objectives.[109] Because of the wide-ranging nature of the values listed in Articles 3(5) and 21(1) TEU, the pursuit of these values might sometimes conflict and require the Union to strike a balance between the different values at play.[110] In Kadi II, for instance, the CJEU held that Article 3(1) and (5) TEU, read in combination with Article 21(1), (2)(a) and (c) TEU, requires the CJEU to assess whether restrictive measures imposed by the Union strike a fair balance between the objective of maintaining international peace and security, on the one hand, and respect for fundamental rights, on the other hand.[111] Concurrently, it follows from Article 3(5) TEU that the EU’s actions on the international stage are not only value-driven but should also uphold and promote the Union’s interests.[112] The EU’s ‘Global Strategy for the European Union’s Foreign And Security Policy’ puts forward in this respect that the Union’s ‘interests and values go hand in hand. We have an interest in promoting our values in the world. At the same time, our fundamental values are embedded in our interests’.[113] This reflects what has been coined as ‘principled pragmatism’, being a mix of ‘a realistic assessment of the current strategic environment’ and ‘idealistic aspiration to advance a better world’.[114] Yet, while the concept may sound noble in theory, in reality, these values and interests do not always align, regularly leading to tensions and conflicts between the interests pursued and the EU’s values.

Nonetheless, a more flexible approach would recognise the reality of conducting international relations. As Odermatt argues, ‘the approach favoured by the Union may cause tensions with other states or within international organizations. The EU remains a self-interested actor; it is established for the interests of its Member States and citizens’.[115] Similar considerations apply to the Union’s values. Membership of the Union is grounded in the free and voluntary commitment of States to the catalogue of values enshrined in Article 2 TEU.[116] As a corollary, once States become EU Members, they cannot disregard these values,[117] given that compliance with these values constitutes a prerequisite for EU membership and the enjoyment of all the rights deriving therefrom.[118] However, third States may not necessarily subscribe to the same values nor do they by definition pursue the same interests, and when the Union concludes international agreements with third States, both parties need to find common ground.[119] This is also reflected in the case law of the CJEU, insofar as it has held that ‘[t]he decision concerning the signing of an agreement with a third country [...] requires an assessment to be made, in compliance with strategic guidelines laid down by the European Council and the principles and objectives of the Union’s external action laid down in Article 21(1) and (2) TEU, of the Union’s interests in the context of its relations with the third country concerned, and the divergent interests arising in those relations to be reconciled’.[120]As a direct consequence, the Union moreover enjoys in its external relations a broad discretion to determine its policies and to treat one third State differently from another, depending on the objectives it seeks to achieve.[121]

Now, how should these observations be reconciled with the stronger wording spread across the relevant provisions of the Treaties and the Charter? These provisions require the Union not only to be ‘guided by’, to ‘promote’ and ‘pursue’ but also to ‘act in accordance with’, ‘uphold’, ‘respect’ and even ‘(strictly) observe’ (some of) the principles, values and objectives in Articles 3(5) and 21 TEU as well as the fundamental rights laid down in the Charter. In ATAA and Others, the CJEU held that the ‘strict observance’ of international law required by Article 3(5) TEU implies that, when the Union adopts an act, it is bound to observe international law in its entirety.[122] In Parliament v Council (EU-Tanzania Agreement), the CJEU moreover held that it follows from Articles 21(1), 21(2)(b) and (3) TEU, and Article 23 TEU that ‘compliance [with the rule of law and human rights] is required of all actions of the European Union, including those in the area of the CFSP’.[123] In a similar vein, the CJEU has held in RT France and on numerous other occasions that it follows from Article 21 TEU ‘that respect for fundamental rights is required of all [external] actions of the European Union’, and that it should therefore be ascertained whether the contested acts respect fundamental rights.[124]

Remarkably, in this collection of judgments, the CJEU seems to conflate the concepts of ‘human rights’ and ‘fundamental rights’ even though Article 21 TEU refers to ‘human rights’ only. Whereas the term ‘human rights’ is mostly used within an international law context, ‘fundamental rights’ refers to human rights within an EU context, albeit that content-wise there are significant overlaps.[125] With respect to the latter, the CJEU has held that, in addition to Article 6(1) TEU, Article 51(1) of the Charter imposes ‘the obligation on the part of the EU institutions to respect fundamental rights in the application of EU law’, including in the field of its external action.[126] The conceptual conflation between ‘human rights’ and ‘fundamental rights’ in the CJEU’s case law may therefore probably be explained by the fact that both the EU Treaties and the Charter bind the EU institutions in their external action, both using different terminology and imposing different types of obligations. This duality is clearly explained in a study for the AFCO Committee of the European Parliament, where it is argued that ‘[t]he ‘principles’ which, in accordance with Article 21(1) TEU, should guide the Union’s external relations, should not be confused with the Charter of Fundamental Rights’ since ‘much as the EU acts consistently with its values in seeking to promote human rights and democracy in its relationships with third countries, it would not be appropriate to rely on the Charter of Fundamental Rights in doing so: this might be seen as a unilateralist approach, through which the Union would unjustifiably be seeking to impose its own values on its partners in international relations’.[127] At the same time, however, ‘it is important to underline the connections between compliance with the Charter of Fundamental Rights in the EU legal order, on the one hand, and the promotion of human rights and democracy in the external relations of the Union’ given that ‘all EU institutions are bound by the Charter of Fundamental Rights, whether their actions have impacts within the European Union or whether they have impacts outside the national territories of the EU Member States’.[128] Returning to the cases mentioned above, this conceptual distinction may help to explain the CJEU’s apparent conflation in the use of ‘human rights’ and ‘fundamental rights’. Whereas in Parliament v Council (EU-Tanzania Agreement) the CJEU’s observations regarding the binding nature of ‘human rights’ were made in relation to the human rights clause applicable to all parties to the agreement, including Tanzania, the CJEU’s use of the term ‘fundamental rights’ in RT France may be explained by the fact that the contested measures concerned restrictive measures unilaterally adopted by the EU, involving no third countries. Notwithstanding, apart from this conceptual distinction, the CJEU found in unequivocal wording in respect of both human rights and fundamental rights that compliance therewith ‘is required’.

At first glance, such a ‘hard’ obligation as to the result appears in conflict with the seemingly more flexible and rather permissive language to be ‘guided by’, to ‘pursue’ or to ‘promote’ human and fundamental rights. Yet, it is argued here that both conceptions may be reconciled in light of the non-absolute nature of (most) human rights. While the EU’s actions are indeed constrained by human and fundamental rights, this does not entail that they cannot be restricted and weighed against other values and/or interests – except in the case of the limited list of non-derogable rights.[129] In Council v Front Polisario, both the Council and the Commission argued in this vein that, pursuant to Articles 21 TEU and 205 TFEU, human rights should be taken into consideration in the conduct of the EU’s external relations, although they may be weighed against other principles and objectives.[130] Similarly, Article 52(1) of the Charter allows restrictions on the rights laid down in the Charter within the confines of the limitations test laid down in that provision. Consequently, the non-absolute nature of (most) rights grants the Union the necessary flexibility and discretion in the conduct and implementation of its external action, particularly at the stage of the proportionality assessment of restrictions. 

As established by the CJEU in Digital Rights Ireland regarding the judicial review of the EU legislator’s adherence to the principle of proportionality, when adopting measures that restrict fundamental rights, the extent of the legislature’s discretion – and as a consequence, the intensity of the CJEU’s scrutiny – depends on a number of factors, such as the area concerned, the nature of the right at issue guaranteed by the Charter, the nature and seriousness of the interference and the object pursued by the interference.[131] Consequently, the standard of fundamental rights scrutiny to be applied to the act under scrutiny, and the leeway afforded to the EU in fulfilling its fundamental rights obligations, may depend on multiple factors such as the context, the content, purpose and nature of the act and the fundamental rights at issue. Arguably, within the EU’s external action, these factors may be supplemented by others, such as the third countries with which the Union cooperates, the nature and purpose of that cooperation,[132] and the negotiated character of international agreements.[133]

As pointed out by Lenaerts before, ‘proportionality relates to substantive choices made by a public body, including the legislator. It is therefore essential to keep such judicial review within limits to avoid that the Court decides in opportunity and thus becomes a political organ’.[134] In the field of the EU’s external action specifically, it is settled case law of the CJEU that the Union legislator enjoys a broad discretion, including in assessing the proportionality of measures and the ensuing fundamental rights restrictions, particularly given that ‘the conduct of external relations necessarily implies policy choices’ and ‘[t]he Union must, therefore, be in a position to choose its policies’.[135] In light of the principle of institutional balance expressed in Article 13(2) TEU, it is not for the CJEU to substitute the legislator’s policy choices with those of its own, but, by contrast, it follows from Article 19(1) TEU that the CJEU is only competent to ensure compliance with the law. Hence, as long as EU law does not impose specific (fundamental rights) obligations on the legislator, it generally enjoys a wide margin of discretion in the conduct of its external action, including in relation to the fundamental rights impact of such action. 

This may be illustrated by reference to the previously discussed cases of Préfet du Gers I and II and Opinion 1/15. In Opinion 1/15, the CJEU held that Article 8(1) of the Charter on the right to data protection ‘requires, inter alia, that the high level of protection of fundamental rights and freedoms conferred by EU law continues where personal data is transferred from the European Union to a non-member country’.[136] This legal obligation stemming from Article 8(1) of the Charter circumscribed and heavily limited the discretion of the EU legislator insofar as the PNR agreement with Canada could only be concluded provided that the protection of personal data by Canada was equivalent to that provided within the EU, so as to prevent circumvention of the EU standards on data protection by the transfer of personal data from the EU to Canada.[137] By contrast, in assessing the proportionality of the decision not to grant a right to vote and to stand as a candidate in municipal and European Parliament elections in the EU-UK Withdrawal Agreement to UK nationals who exercised their right to reside in another Member State before Brexit, the CJEU emphasised in Préfet du Gers I and II the broad discretion that the EU enjoys in policy decisions in the conduct of its external relations, as a consequence of which it is allowed to condition the content of international agreements on the principles of reciprocity and mutual advantages.[138] Under EU law, the EU is not legally required to unilaterally grant such rights to UK nationals, given that Articles 20(2)(b) TFEU, 22 TFEU and 40 of the Charter reserve these rights to Union citizens solely, while UK citizens are considered third-country nationals under EU law from the date that Brexit took effect.[139] Hence, the impact on the electoral rights of UK nationals within the EU resulted from a policy choice as regards which the Union enjoyed a wide margin of discretion due to the external action context and the absence of specific EU law obligations in this regard.

It is nonetheless important to note that, even if the EU institutions are granted a broad margin of discretion in relation to the proportionality of restrictions on fundamental rights, leading to a more deferential scrutiny by the CJEU, the institutions’ actions are not unfettered and are in any event limited by the outer boundary of fundamental rights: the essence of the rights and freedoms at stake, which they can under no circumstances encroach on.[140] If EU external action were to impinge on the essence of a fundamental right, it can never be considered proportionate.[141] Moreover, in the conduct of its external action, the European Union is precluded from imposing any restriction on the absolute fundamental rights guaranteed by the Charter (and other international instruments).[142]

Apart from these outer boundaries, however, it must be recognised that this conception of the principle of proportionality, and the potentially deferential scrutiny by the CJEU it entails, may nevertheless significantly affect individuals’ fundamental rights. ‘Simple’ breaches of fundamental rights will not suffice to invalidate acts of EU law. On the other hand, such an increased threshold makes EU cooperation more ‘workable’, especially within the field of its external action. It allows the CJEU to grant the EU institutions sufficient leeway to conduct their external relations while at the same time maintaining that the EU is a union based on the rule of law, where all acts remain subject to scrutiny as to their compliance with fundamental rights. Yet, whether such scrutiny is effective from an individual’s perspective is doubtful, to say the least, all the more so in combination with the strict and burdensome standing and evidentiary rules before the CJEU.[143]

4.   Conclusion

By now, it is established case law of the CJEU that the EU institutions are bound by fundamental rights when acting on the international plane, including within the CFSP. Yet, the CJEU often adopts a deferential approach towards fundamental rights restrictions resulting from the EU’s external action for the purpose of preserving the EU institutions’ discretion and room for manoeuvre. The observations made in this contribution consequently identify a potential gap between the de jure fundamental rights obligations of the EU and the de facto standard of fundamental rights applicable to the EU institutions. It follows from the case law of the CJEU that, particularly in its external action, the EU’s fundamental rights obligations are to be balanced with other values and interests, and the proportionality test for the assessment of the compatibility of such external action with the EU’s fundamental rights obligations must be conducted taking into account different elements, amongst which the context, the content, purpose and nature of the act and the fundamental rights at issue, as well as the third countries with whom the Union cooperates and the negotiated character of the act. 

Such a contextual reading of the proportionality test allows the EU to conduct its external relations with the necessary political leeway, without, however, being exempt from its fundamental rights obligations. In this respect, the essence of fundamental rights, as well as the absolute nature of certain rights, serve as the ultimate boundary that the EU institutions can never cross, despite their wide discretion. As AG Ćapeta argued in KS and KD, ‘EU institutions and bodies are always bound by fundamental rights, and the choice to infringe those rights is not an available political or strategic choice’.[144] Hence, although in their external action the EU institutions are granted more leeway through the adoption of a more deferential scrutiny, this wider discretion does not entirely nullify their fundamental rights obligations. On the other hand, it cannot be ignored that this deferential approach makes it for individuals much harder, if not impossible, to enforce their fundamental rights and obtain compensation for the harm incurred, in addition to the already strict and burdensome standing and evidentiary rules. Therefore, while on paper, and despite an increased discretion, the EU is and remains fully bound to ensure respect for fundamental rights in its external action, legitimate questions exist as to the actual effectiveness of the (judicial) protection provided to individuals in ‘a union based on the rule of law in which all acts of its institutions are subject to review of their compatibility with, in particular, the Treaties, general principles of law and fundamental rights’.[145]