In This Issue

Abstract

Chiti scans the bits and pieces of European administrative law to provide a systematic assessment of its actual functioning. Chiti finds that the mix of law and governance that makes up European administrative law is hampering the proper constitution and structuring of administrative power. This results not only in administrative instability (and thus in poor performance of public authorities) but also in European law failing to strike the necessary delicate balance between administrative efficiency and the constitutionally mandated respect for diversity. Jotter reconsiders conflicts between economic freedoms and fundamental rights. On the basis of a reconstruction of the case law of the Court of Justice that is at the same time sensitive to the ‘internal’ view of the Luxembourg judges and to the socio-economic perception of the underlying issues at stake, Jotter criticises the proclivity of supranational judges to oversimplify conflicts, not taking into account the extent to which socio-economic subjective rights, collective rights and collective goods cannot be easily and automatically translated into a single idiom crafted in the semblance of economic freedoms. The core of this issue is made up of a special section on the transformation of European private law. The reader will find a detailed introduction and overview in Comparato's article. I would like to emphasise the extent to which the articles that make up the section contribute not only to their specific field but are also very likely to be of interest to all those interested in EU law and integration, even if not particularly focused on the intricacies of private law. This is so for at least two reasons. One is the extent to which the authors render explicit the clear relationship that exists between the transformation of European law in general and that of European private law in particular. This is a powerful reminder of the fact that even if the series of crises that the European Union has been undergoing in the last decade may well manifest themselves spectacularly in one specific field, the said crises are bound to affect European law as a whole (as Micklitz, Dagan and Svetiev show in their contributions). The second reason is that the authors provide a contextual analysis of their topics, which is rounded off by a critical rejoinder by Hesselink. Some months ago, the editorial board decided to discontinue short book reviews and replace them with in-depth review articles. This is a difficult genre, but one which seems to us is more congenial to the ELJ. In this spirit, Lindseth engages in a sympathetic but highly critical way with Kaarlo Tuori's magisterial reconstruction of the transformation and content of European constitutional law. Lindseth puts forward an empirically grounded criticism of the very constitutional grammar with which not only scholars but also judges have tended to construct European Union law. In particular, Lindseth challenges the readiness with which Tuori (and a good deal of EU scholarship) slips into accepting the positive normative implications associated to the characterisation of a legal order as constitutional. Characterising EU law ‘as if’ not only a constitutional order, but ‘as if’ a democratic constitutional order may well have always been a step too far. But the way Europe lives now, to paraphrase a British novelist, has rendered the dangers involved in such too quick an assumption painfully evident by half. I take leave to add a small note on two recent rulings of the European Court of Human Rights: Mercan 1 and Zihni. 2 While they have failed to attract much media attention, the issues underlying both of them are of enormeous and transcendental importance. The plaintiffs in both cases were Turkish citizens who ended up on the wrong end of the emergency measures taken by the Turkish government in the aftermath of the July 15th 2016 attempted coup d'état. Miss Zeynep Mercan is a judge. In the immediate aftermath of the coup, she was placed in custody, the same fate that was reserved to 2,900 Turkish judges. Mr. Akif Zihni is a secondary school teacher, who within days of the failed coup was suspended (together with tens of thousands colleagues). The two plaintiffs brought their cases directly to Strasbourg claiming that the standard ECHR rule, that is the exhaustion of local (i.e. national) remedies, could not be followed because the independence of the Turkish judiciary had been seriously undermined after the coup. Indeed, the ultimate national guardian of fundamental rights, the Turkish Constitutional Court, was empowered by the law decree declaring the state of emergency to determine whether some of its members were part of the very organisation that the Turkish authorities declared to be behind the coup. 3 The Turkish Constitutional Court made quick use of these new and rather unconventional powers and established that actually two of its members should be separated from the Court and placed in custody (all on the basis of such rock solid evidence as the ‘common conviction’ formed by the remaining members of the Constitutional Court). 4 In addition, Miss Mercan, together with her colleagues in the Turkish judiciary who were placed in custody back in July, is still waiting for proper charges to be brought against her before a (fellow) judge, so she can have her case heard (and thus exercise her right to defence). In both cases, the second section of the European Court of Human Rights, under the presidency of the Estonian judge Laffranque, dismissed the applications. In the Mercan case, which was decided first, the Court was pretty straightforward in its reasoning. The Strasbourg judges concluded that the plaintiff had failed to make a persuasive argument regarding the impossibility of getting protection from Turkish courts. The facts referred by the plaintiff (which included, as I have already indicated, but bears repeating, the unconventional decision of the Constitutional Court to expel two of its members which resulted in them being placed under custody, and the parallel detention (without charges) of almost three thousand judges, decisions taken against a background marked by the decision to suspend the European Convention by the Turkish government) were ‘simples craintes eprovuées par la requeránte quant a l'impartialité des juges’ (section 26) [‘mere anxieties experienced by the plaintiff regarding the impartiality of judges’]. On such a basis, the Strasbourg judges concluded that no good reason had been put forward to make an exception to the obligation to exhaust national remedies (section 27: ‘la Cour n'aperçoit pas de circonstance particulière qui aurait pu dispenser la requérante de l'obligation de saisir la Cour constitutionnelle’). The second ruling (by the same chamber, but with a slightly different composition, including the Turkish judge in the ECtHR) was more nuanced. The ratio decidendi was the same, but the Court now seemed to be intent in both deciding the case at hand and producing the draft of an eventual ruling in case the Turkish Constitutional Court were to keep on arguing it is not competent to review the law decree establishing the state of emergency. Still, some of the passages of the ruling are still permeated by a lightness bordering on frivolity in view of the gravity of the situation. For example, the Strasbourg judges claim that the fact that the ‘post-coup’ measures have given rise to 45 000 individual complaints before the Turkish Constitutional Court proves that 45 000 plaintiffs agree with the European Court in believing that Turkish citizens have a fair chance of having their rights guarded by the Turkish Constitutional Court, rendering thus unjustified a direct access to the European Court of Human Rights (section 28). There is no doubt that the present constitutional constellation in Turkey is an extremely complex one. Coups d'êtat are not picnics, and even the most fundamental rights' conscious government may well have to take difficult decisions in the aftermath of a golpe. The ahistorical and atemporal streaks in European public discourse have rendered a trifle too simplistic the analysis of the political situation in Turkey, before and after the coup. 5 Moreover, of all European institutions, courts should be the most cautious of all. The Strasbourg Court should not become a meta-European constitutional court: Its role should be much more circumscribed and subsidiary. By the same token, the European Court of Human Rights should keep its eye both on each individual case as such and on the impact that each ruling is likely to have on the overall protection of fundamental rights in Turkey. There is no doubt that in the cases at hand, the best possible outcome would be one in which Turkish institutions would show their willingness to take a clear stance against the breaches of rights resulting from the post-coup emergency measures. That seems to be what the Zihni ruling hopes for. However, none of what has just been said can be constructed as providing the European Court of Human Rights with a carte blanche to escape from difficult issues. Even less so with a passport to engage in a reconstruction of facts which borders on an unimaginative variant of magical realism. Indeed, the judges have come dangerously close to the assumption that the coup d'état would have had no effect on the living Turkish constitution, in the actual practice of fundamental rights in Turkey. As a result, both rulings, but most conspicuously Mercan, are based on what only through sustained effort one can avoid characterising as a grotesque reconstruction of facts. Can indeed the presumption of full national protection of rights hold when almost three thousand judges, the ‘custodians of choice’ of Convention rights according to the European Court, have been collectively placed in custody, with not even a half-hearted effort at producing charges, in blatant breach of the ECHR itself? Such a decision does not only imperil the rights of the judges themselves but casts a long shadow over the functioning of the Turkish state as a whole. And what to say of the decision of the Constitutional Court to, if we do not mince words, self-purge? Can the Strasbourg judges say to the almost three thousand Turkish judges as a collective, as it did to Miss Mercan as an individual, that they have a mere ‘crainte’ of not being successful in their appeals, after months detained without charges being produced and the purges in the public administration getting larger by the day? Can the thousands of teachers and public officials left without employment and means of living be simply instructed to join the long queue of pleaders before the self-purging constitutional court with the expectation of getting a ruling in say ten years? There is no doubt that the ECtHR should be very self-contained and self-restrained. But if the Convention and the Court serve a fundamental purpose that is of actually contributing to prevent the undermining of the democratic state and the rule of law from within. And that independently of tactical considerations or realpolitik equations. The history of the European Convention of Human Rights and of the European Court of Human Rights is a long and complex one. 6 Quite obviously, the history of Europe is even longer and more complex. The point is that both histories are far from being irrelevant when it comes to taking difficult decisions in hard and complex. Were the situation in Turkey to keep on deteriorating, these two rulings would come to haunt the European Court of Human Rights as an institution, as well as the individual judges who took unanimous decisions in both cases. In particular I take leave to add, given the fact that four out of the six judges in Mercan and three out of the seven judges in Zihni grew up under regimes of an authoritarian if not totalitarian bend. One wonders how they would have regarded as teenagers or young judges a functional equivalent of these rulings had their countries been (which they obviously were not) members of the Council of Europe and signatories of the European Convention of Human Rights.