By Malu Beijer, researcher Radboud University Nijmegen
The concept of positive obligations has become a regular feature of the case law of the European Court of Human Rights (ECtHR) ever since the classic cases of Marckx v. Belgium, Airey v. Ireland and X. and Y. v. the Netherlands. The ECtHR has made very clear in this case law that the full and effective protection of fundamental rights requires states to take active measures. States cannot simply remain passive by complying only with their negative obligations.
In other systems of international human rights law and under national law, a similar concept of positive obligations can often be recognised. The same does not hold true for the protection of fundamental rights under EU law. The EU’s (relatively) more recent system of fundamental rights protection so far mainly has had a focus on negative obligations. Can it be established by the European Court of Justice (ECJ) that the EU institutions and the member states must fulfil positive obligations as well? In this post I will briefly explain some of my thoughts on this specific question which formed the topic of my PhD research.
Positive obligations under the ECHR
The case law of the ECtHR provides an important starting point to figure out what a development of positive obligations could – potentially – entail for the EU context. While the ties between the EU and the European Convention on Human Rights (ECHR) have not been formalised by the accession, the ECJ must (still) ensure that the meaning and scope of the rights of the Charter which correspond with the rights of the ECHR are the same as those guaranteed under the ECHR (see Article 52(3) of the Charter). This would seem to mean taking the case law of the ECtHR, and the concept of positive obligations, into account as well.
The ECtHR has a long history of developing positive obligations in many different cases to ensure the protection of the rights guaranteed under the ECHR. For anyone who may not have been able to keep up with this ever-developing case law, the recent book written by Laurens Lavrysen on this topic might just get you right back on track. Laurens Lavrysen has studied a vast amount of judgments of the ECtHR on the concept of positive obligations and has systematised all the different types of positive obligations that have been formulated by the Court over the years. His research provides much helpful insight into the variety of types of positive obligations which exist under the ECHR together with some of the most recent illustrations that can be found in the case law of the ECtHR. Here, I will limit myself to some of the more general types of positive obligations that Laurens Lavrysen discusses in his book. Firstly, there are substantive positive obligations (e.g. obligations to adopt legislative measures) and procedural positive obligations (e.g. the obligation to conduct effective official investigations into violations of fundamental rights). Secondly, there are positive obligations of a vertical kind (those that protect the individual from the state) and positive obligations of a horizontal kind (those that protect individuals against other individuals). Thirdly and lastly, there are positive obligations which relate to the legal and administrative frameworks and those that encompass more practical measures which states need to take. These positive obligation can be found in relation to almost every fundamental right laid down in the Convention.
The negative character of EU fundamental rights protection
In some respects, the same rights from the ECHR are laid down in a much more modern way in the Charter. The rights of the Charter are also generally much less negatively phrased. Nonetheless, there seems to be little room to accept the same types of positive obligations as have been defined by the ECtHR. Article 51(1) of the Charter requires the EU institutions and the member states in a rather positive way to ‘respect the rights, observe the principles and promote the application thereof’, but this applies under some important conditions. First, the member states only need to comply with the EU Charter where they act within the scope of EU law. This has been extensively discussed by academics, and has further been defined by the ECJ in the Åkerberg Fransson case. Next, perhaps more importantly for the purpose of this blog, is the phrase that has been included in Article 51(2) of the Charter. It holds that:
‘The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power for the Union or modify powers and tasks as defined in the Treaties.’
This limitation essentially already follows from the EU’s Treaty rules on the principle of attributed competences, yet it was specifically inserted in the Charter. Article 51(2) shows a certain negative outlook on the protection of fundamental rights. It casts some doubts over whether there is room – at all – for accepting positive obligations on the basis of the rights of the Charter.
Positive obligations in the case law of the ECJ
A different conclusion on the scope for a development of positive obligations within the context of EU law could be reached if one would look more closely at some of the case law of the ECJ. There are some judgments which reveal – somewhat in between the lines – that an EU institution or a member states incurs an obligation to take certain active measures to protect fundamental rights.
The judgment of the ECJ in the case of Schrems may serve as an example to illustrate this. In this judgment of 6 October 2015, the ECJ found that the European Commission’s Safe Harbour Decision was invalid. In this (former) decision, which was based on Articles 25 and 26 of the EU Data Protection Directive, it had been established that the member states of the EU and their undertakings could transfer personal data of EU citizens to the United States. The European Commission had found that the United States provided an adequate level of protection of personal data on the basis of the use of the safe harbour principles. The ECJ concluded differently and expressed clear concern over the adequacy of the protection of the rights of EU citizens provided by that decision in light of Article 7 (the right to privacy) and Article 8 (right to protection of personal data) of the Charter. The safe harbour principles allowed the public authorities of the United States to interfere with the fundamental rights of persons whose data could be transferred from the EU on grounds of national security without any clear limitations. Also, there were no clear remedies available for persons whose privacy rights would be affected by those measures taken by those public authorities.
In its judgment, the ECJ has established that the European Commission needs to adopt a more active approach in examining whether a third country, such as the United States, provides for an adequate level of protection. The ECJ has held that:
(…) in the light of the fact that the level of protection ensured by a third country is liable to change, it is incumbent upon the Commission (…) to check periodically whether the finding relating to the adequacy of the level of protection ensured by the third country in question is still factually and legally justified. Such a check is required, in any event, when evidence gives rise to a doubt in that regard.’ (Para. 76).
The Commission consequently must engage in a certain monitoring of the compliance of the right to privacy and the protection of personal data in the United States. The European Commission can therefore not remain passive after it has concluded an agreement on the transfer of personal data. The European Commission must take certain active measures to comply with this requirement. The ECJ therefore seems to have formulated a positive obligation for the European Commission. This also shows in the newly adopted EU-US Privacy Shield decision. In this decision, clear expression has been given to the obligation formulated in Schrems, as it includes a pecific provision that establishes a system of annual joint review which ensure that adequate protection of privacy rights of EU citizens is indeed given in relation to the transfer of their personal data to the US.
The example of Schrems shows that the ECJ can formulate a positive obligation which is necessary to effectively secure fundamental rights within the context of EU law. In this privacy related context, the EU clearly enjoys certain competences. The formulation of this positive obligations would therefore not need to run counter to the clear limitations laid down in Article 51 of the Charter.
In my research I have tried to provide further clarity on the scope for a development of positive obligations under EU law. There are several parameters that clearly limit the scope for the development of positive obligations under EU law. The ECJ firstly functions very differently compared to the ECtHR and it adjudicates on the basis of a very different Treaty which does not have human rights at its core. Secondly, Article 51 of the Charter clearly poses constraints on the ECJ, because it requires the ECJ to pay attention to the specific fields in which the EU is entitled to exercise powers and to specific rules laid down in EU primary and secondary law. Nonetheless, there is room for the ECJ to accept (certain) positive obligations to protect fundamental rights within the scope of application of EU law. Especially the procedural type of positive obligation and the vertical type of positive obligation can be encountered in the case law of the ECJ. It is also logical and necessary that the ECJ can establish certain types of positive obligations for the EU institutions as well as for the member states when they implement EU law, if there are gaps in the protection of EU fundamental rights. Positive obligations are after all clearly part and parcel of fundamental rights protection.
 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship between Positive and Negative Obligations under the European Convention on Human Rights (Intersentia 2016).