Abstract
Over the last years, the idea of positive obligations under Charter rights was brought up as an argument in some cases before the European Court of Justice in order to claim action from Member States or the European Union. However, a general doctrine of positive obligations does not seem to be able to assert itself in EU law. The article starts with identifying challenges for a concept of positive obligations under EU law. Further, different levels of manifestations of positive obligations are determined in the case-law of the ECJ in relation to the Member States. Through revisiting the case-law in light of the challenges identified, the article points out possibilities and limits for endorsing positive obligations in EU law, particularly in relation to the Member States. Lastly, the article looks into potentials of further developing a concept of positive obligations under the Charter.
Introduction
The concept of positive obligations is rooted in the case-law of the European Court of Human Rights (ECtHR). 1 In its 1979 Marckx v. Belgium judgment, the ECtHR held regarding the right to respect for private and family life pursuant to Article 8 European Convention on Human Rights (ECHR): ‘Nevertheless it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective “respect” for family life.’ 2 Since then, the ECtHR has developed a doctrine of positive obligations in its case-law, involving different types thereof, particularly substantive and procedural positive obligations. 3 The concept is generally considered as a means of ensuring effective fundamental rights protection. 4
Over the last years, the idea of positive obligations under Charter rights was brought up as an argument in some cases before the European Court of Justice (ECJ) in order to claim action from Member States 5 or the European Union (EU). 6 However, a general doctrine of positive obligations does not seem to be able to assert itself in EU law. But why is that? What are the challenges for a concept of positive obligations under the Charter and what are potentials thereof? What are the possibilities and limits for endorsing positive obligations in EU law, especially in relation to the Member States? 7
In order to answer these questions, the first section of the article will identify the challenges for a potential positive obligation doctrine in the EU’s system of fundamental rights. The second section will discuss to what extent EU law actually already entails manifestations of positive obligations for Member States. In particular, until a few years ago the notion of ‘positive obligations’ was absent in the ECJ's case-law. Therefore, the evolution of the concept of positive obligations under the Charter will be examined based on the degree of reference (implicit, ‘quasi-explicit’ and explicit) to the notion of ‘positive obligations’. Especially, in which ways has the explicit use of positive obligations in more recent ECJ judgments specified that concept under EU law? The third section revisits the case-law in light of the challenges identified, in order to understand how the challenges limit an EU law-specific concept of positive obligations. It also aims to outline under which circumstances there actually is room for development of such obligations in EU law. Finally, the article discusses potentials of endorsing positive obligations under the Charter.
Challenges for a concept of positive obligations in the EU’s fundamental rights system
When speaking of a potential doctrine of positive obligations under EU law, such a doctrine would naturally have to comply with EU law. Therefore, the ECtHR's doctrine of positive obligations cannot be incorporated without further ado into EU law, since different principles are governing these fundamental rights regimes. 8 For example, while the ECtHR tends to refrain from granting a margin of appreciation for the States when it comes to procedural obligations, 9 it is questionable whether under EU law such an approach would comply with the principle of procedural autonomy of the Member States. As established in settled case-law, accordingly, in absence of EU procedural rules, it is for the national legal order of each Member State to establish such rules, 10 which would potentially require broader discretion.
As regards the EU-specific principles relevant for positive obligations, it must be borne in mind that the Charter is governed by the principle of conferral. The question of competences is what distinguishes the Charter from other fundamental rights systems such as the ECHR. 11 This ‘competence-preserving’ characteristic of the Charter is laid down in several provisions: Pursuant to Article 51(1) CFR, the Charter applies in relation to the Member States ‘only when they are implementing Union law’. Article 6(1) TEU and Article 51(2) CFR state that the Charter does not extend the scope of application of EU law or the competences conferred to the Union by the Treaties. When it comes to the obligation of the EU and Member States to promote the application of the Charter enshrined in Article 51(1) CFR, 12 the explanations on Article 51 clarify that this obligation may only arise within the limits of their powers determined by the Treaties. This is particularly relevant for the concept of positive obligations, since such obligations tend to have a ‘competence-shifting’ characteristic: A major criticism in this respect is the shift of decision-making from the legislative towards the judiciary power. 13 Additionally, when the ECJ imposes positive obligations on Member States, there is a shift of decision-making from the Member States towards the EU (more precisely towards the ECJ). This would, for instance, be the case when the interpretation of a fundamental right by the ECJ has a harmonizing effect, in the absence of corresponding harmonizing provisions in EU legislation. 14
Therefore, the first imperative precondition for establishing positive obligations under the Charter is affirming that the situation in question falls under the Charter's scope of application. 15 This requires, in relation to the Member States, an implementation of EU law in the sense of Article 51(1) CFR. Once the Charter's scope of application is affirmed in a specific case, it may be determined whether the pertinent fundamental right entails a positive obligation. To that end, the provision of the Charter must be interpreted in accordance with the recognized methods or potentially with the requirements for a further development of the law. 16 These must be followed in order to observe the limits of the Court's competences enshrined in Article 19(1) TEU. The latter are vertically limited by the principle of conferral in relation to the Member States, and horizontally by the principle of inter-institutional balance, particularly in relation to the EU legislator. 17 Regarding the substance, extent and limits of a positive obligation addressed to Member States, the Court would have to take into account the principles of subsidiarity and proportionality. 18 Also further principles of EU law may be relevant at that stage, such as the principle of mutual trust 19 or, with regard to procedural obligations, the principle of procedural autonomy of the Member States.
All in all, a potential doctrine of positive obligations under EU law would require the development of considerations or principles enabling the embedding of the concept into the structure of EU law. Against this background, the following section will discuss to what extent EU law already entails manifestations of a concept of positive obligations.
Manifestations of positive obligations in EU law
In order to analyse manifestations of positive obligations in EU law, this section will begin with a short overview of the academic literature on the recognition of positive obligations under EU law. After focusing on the development of the ECJ case-law on positive obligations for Member States, the section will conclude with interim findings.
The recognition of a positive dimension of Charter rights in academia
Throughout academic literature, the existence of a certain positive dimension of Charter rights appears unquestionable. 20
The most common normative justifications therefore rely on Articles 51(1) and 52(3) CFR. 21 As already touched upon, the second sentence of Article 51(1) CFR enshrines an obligation for the EU and the Member States to promote the application of the Charter in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties. The argument is that the obligation ‘to promote’ implies positive obligations for the EU and Member States. The rule of interpretation enshrined in Article 52(3) CFR is particularly important for establishing positive obligations under the Charter since, accordingly, Charter rights that have a corresponding right in the ECHR shall have the same scope and meaning as the corresponding Convention right. In combination with the ECtHR's positive obligations doctrine, positive obligations may be derived from Charter rights that correspond to Convention rights if the latter entail such obligations. 22
However, there are nuanced perceptions regarding the degree of recognition of positive obligations under EU law. While some scholars (originating from the German-speaking sphere) seem to assume a doctrine of positive obligations under the Charter, 23 the majority affirm a potential for or the existence of such obligations with the important caveat that they do not play a considerable role in the case-law of the ECJ. 24 In view of this, the following subsection will deal with the question of to what extent the ECJ endorses the concept of positive obligations in relation to Member States.
The development of the ECJ case-law with regard to positive obligations for Member States
The ECJ case-law regarding positive obligations is sparse. When it comes to the degree of reference to the notion of ‘positive obligations’, three categories of cases are discernible. Correspondingly, the first subsection will address implicit manifestations of positive obligations identified by academics. Further, the focus will remain on the ‘quasi-explicit’ and explicit references to positive obligations made by the ECJ.
Implicit manifestations of positive obligations
Until a few years ago, the ECJ did not explicitly address the issue of positive obligations. Nevertheless, academics spotted implicit manifestations of a positive fundamental rights dimension in some ECJ judgments. 25 These involve the formulation of duties for public authorities to act in a specific way in order to ensure fundamental rights protection, however without referring to a doctrine of positive obligations.
The majority of these cases concern the interpretation of a provision of secondary law in the light of the Charter. In these cases, the Court interprets a provision as entailing a specific obligation for the Member States in order to ensure the protection of fundamental rights, which is not, however, so precisely enshrined in the pertinent legislation. 26
Among them, there are just few examples involving substantive duties. The case Chatzi 27 concerned Directive 96/34 28 entailing minimum requirements for paid parental leave and the question, whether parents of twins were entitled to the respective leave period for each of the two children. With regard to the principle of equal treatment enshrined in Article 20 CFR, the Court held ‘that the parents of twins are in a special situation which must be taken into account in the first instance by the national legislature when it adopts the measures transposing Directive 96/34.’ 29 Although EU law only imposes minimum requirements and leaves the Member States with wide discretion, the Court provided specifications concerning possible appropriate measures. Accordingly, ‘doubling the duration of parental leave does not necessarily constitute the only appropriate measure’. 30 Besides an appreciable longer duration and flexibility, the ECJ refers to other specific possible measures, ‘such as material assistance, in the form, for example, of a right of access to childcare centres, or financial aid, in the form, inter alia, of specific benefits allowing the method of care to be freely chosen.’ 31 Another example is the CCOO 32 judgment, in which the Court required Member States to impose the establishment of a working time recording system in order to achieve the effectiveness of the rights conferred by Directive 2003/88 33 and Article 31(2) CFR. 34 These provisions guarantee minimum rest periods and maximum weekly working time, leaving the Member States discretion as regards the measures necessary to ensure compliance. 35 However, according to the ECJ, a national measure requiring employers to set up a system for recording merely overtime hours was not an effective means for ensuring these rights. 36
In the same context, scholars refer to procedural obligations derived under Article 47 CFR. 37 Such obligations concerning explicit procedural guarantees in principle should not be perceived as positive obligations. At least, that is the case in the context of the ECHR, where primarily procedural obligations under substantive fundamental rights (and not explicit procedural guarantees) are considered in terms of positive obligations. 38 This may be because imposing procedural obligations under explicit procedural guarantees does not have to be justified with another concept. Procedural obligations under procedural guarantees are rather considered an end in itself. 39
Yet there are examples for implicit manifestations of a procedural positive obligation under a substantive fundamental right. This is the case in UPC Telekabel Wien. 40 The case concerned an injunction on an internet service provider to end infringements of copyrights and related rights. Such an injunction required the balancing of fundamental rights, inter alia intellectual property rights protected under Article 17(2) CFR on the one hand and the freedom of information of internet users ensured by Article 11 CFR on the other. 41 The ECJ held that in order to ensure the protection of particularly Article 11 CFR, ‘the national procedural rules must provide a possibility for internet users to assert their rights before the court once the implementing measures taken by the internet service provider are known’. 42 Thereby, the Court derived an obligation to provide for a remedy in order to ensure the protection of the freedom of information.
While these cases do not mention the term ‘positive obligation’, they all contain elements of the ECtHR's positive obligation doctrine. Especially, all of the examples have in common that Member States are required to set measures in order to ensure fundamental rights protection. These may be on the one hand of substantive nature, such as taking into account the special situation of parents of twins in legislation or imposing the establishment of a working time recording system. On the other hand, they may have procedural character, for instance when a remedy must be provided. Further common elements to the ECtHR's positive obligations doctrine are the debates in Chatzi and CCOO on which measure is appropriate 43 and the stressing of effective fundamental rights protection 44 in CCOO.
Moreover, scholars refer to cases in which a Member State's interference with a fundamental freedom is justified as a measure of active fundamental right protection, therefore a measure set to meet the State's positive obligations. 45 One of these cases is Schmidberger, dealing with a demonstration on the Brenner motorway in Austria, leading to a 30-hour closure of that major transit route between Italy and northern Europe. The obstruction to the free movement of goods caused thereby was justified with the Austrian authorities’ aim to ensure the freedom of expression and freedom of assembly enshrined in the ECHR as well as the Austrian Constitution. 46 In this context the ECJ held that the authorities took several measures in order to ensure that the demonstration passed by smoothly, 47 which is an acknowledgement of the obligations imposed on that Member State by the ECHR and its national constitution (not by EU law).
These implicit manifestations have evolved over the last years, as the ECJ gradually started to incorporate the notion of ‘positive obligations’ in a few judgments. The following subsection will deal with positive obligations under Article 4 CFR which are in between implicit manifestation and explicit recognition.
Between implicit manifestation and explicit recognition
In its 2016 Aranyosi judgment and its 2018 Generalstaatsanwaltschaft judgment, the ECJ derived implicit positive obligations under Article 4 CFR for Member State authorities while explicitly relying on positive obligations under Article 3 ECHR in its reasoning.
The essential question of the Aranyosi case was whether the judicial authorities of a Member State must, based on a European arrest warrant (EAW), actually surrender a person to another Member State, where he or she might be subject to inhuman or degrading treatment.
The background to the case was the following legal situation: According to Article 1(2) Framework Decision on the European arrest warrant 48 (FD-EAW), Member States shall execute any EAW on the basis of the principle of mutual recognition and in accordance with the provisions of the FD-EAW. Non-execution of an EAW can only be justified with the mandatory grounds of Article 3 FD-EAW or the optional grounds of Articles 4 and 4a FD-EAW. Furthermore, the execution may only be subject to the conditions laid down in Article 5 FD-EAW. The ECJ held in earlier case-law, that ‘the Member States are in principle obliged to act upon a European arrest warrant.’ 49 In particular, the FD-EAW does not foresee a possibility for the executing authority to refuse the execution of an EAW based on the concern that the requested person might be subject to fundamental rights violations in the issuing Member State. Merely Article 1(3) FD-EAW provides that the FD-EAW does not modify the obligation to respect fundamental rights enshrined in Article 6 TEU.
In the main proceedings, the Higher Regional Court of Bremen dealt with the requested surrender of a Hungarian and a Romanian national upon EAWs to their respective countries of origin. 50 However, in view of the precarious detention conditions in both of these Member States, the Higher Regional Court of Bremen had doubts about the interpretation of the FD-EAW, especially its Article 1(3). 51 In particular, it referred to numerous ECtHR judgments against both Hungary 52 and Romania 53 concerning overcrowding in prisons. In those cases, the ECtHR had found violations against Article 3 ECHR, enshrining the prohibition of torture or inhuman or degrading treatment or punishment.
The ECJ ruled that, when deciding on the surrender of an individual sought by an EAW, the executing authority was bound to assess the existence of a real risk of a violation of Article 4 CFR, in case it held evidence of a real risk of inhuman or degrading treatment of individuals detained in the issuing Member State.
54
To that end, the executing authority must proceed in two steps. First, it must assess whether deficiencies existed, which might be systematic or generalized, or which might affect certain groups of people, or certain places of detention. For this purpose, the judicial authority must rely on objective, reliable, specific and properly updated information on the detention conditions prevailing in the issuing Member State. Possible sources would be judgments of international courts such as the ECtHR, judgments of courts of the issuing Member State, as well as decisions, reports and other documents issued by bodies of the Council of Europe or the UN.
55
The ECJ justified this by referring to the positive obligation entailed in the corresponding Convention right, namely Article 3 ECHR. In this regard, the ECJ stated: Article 3 ECHR imposes, on the authorities of the State on whose territory an individual is detained, a positive obligation to ensure that any prisoner is detained in conditions which guarantee respect for human dignity, that the way in which detention is enforced does not cause the individual concerned distress or hardship of an intensity exceeding the unavoidable level of suffering that is inherent in detention and that, having regard to the practical requirements of imprisonment, the health and well-being of the prisoner are adequately protected (…).
56
This two-stage test of the detention conditions corresponds to a positive obligation 59 of a procedural nature. Including the two-stage test in the national procedure in order to protect Article 4 CFR adds a procedural layer to that fundamental right, which is not foreseen in the FD-EAW. Therefore, it corresponds to the definition of a procedural positive obligation, which consists in procedural requirements flowing from a substantial fundamental right provision. 60 It can be termed as a ‘quasi-explicit’ positive obligation: While not explicitly labelling the obligation to assess the conditions of detention as a positive obligation under Article 4 CFR, the ECJ explicitly referred to the positive obligation under the corresponding Convention right, Article 3 ECHR. The formulation of the two-stage test contains a structural element of the ECtHR's positive obligation doctrine, namely the condition of the authorities’ knowledge 61 of a possible upcoming interference with Article 4 CFR.
In its judgment in the case Generalstaatsanwaltschaft, 62 the ECJ in essence further clarified the extent of the obligation to assess the detention conditions. Again, the case concerned proceedings before the Higher Regional Court of Bremen, which had to decide upon the surrender of a Hungarian national sought by the Hungarian authorities with an EAW.
First, the ECJ affirmed that under the circumstances stated in the Aranyosi case, the executing authority was bound to conduct an individual assessment of the detention conditions with regard to Article 4 CFR. 63 This held true even if legal remedies existed for detainees in the issuing Member State in respect of the conditions of their detention. 64
Subsequently, the ECJ addressed the extent of the obligation to assess the detention conditions. 65 According to the Court, the assessment could not concern the general conditions of detention in all the prisons in the issuing Member State in which the sought person might be detained. Such an obligation would be ‘clearly excessive’. 66 Instead, the executing authorities were solely required to assess the detention conditions in the prisons, where the sought person was actually intended to be detained, albeit on a temporary or transitional basis. For a possible transfer to other prisons at a later stage, the question of fundamental rights compliance of the detention conditions in those prisons fell exclusively within the jurisdiction of the courts of the Member State issuing the EAW. 67 For the substance of the assessment, the ECJ – in absence of minimum standards under EU law regarding detention conditions – referred to the corresponding positive obligation imposed by Article 3 ECHR and to the criteria laid down in the case-law of the ECtHR. 68 Lastly, the Court evaluated the significance of an assurance provided by the authorities of the issuing Member State according to which the sought person, irrespective of the prison in which they would be detained, would not suffer inhuman or degrading treatment. When the issuing judicial authority had issued or at least had endorsed such an assurance, the executing judicial authority must rely on that assurance, at least in the absence of any specific indications that the detention conditions were in breach of Article 4 CFR. 69 If the assurance had been given by another authority (as in the case at hand by the Hungarian Ministry of Justice), the executing authority must consider it within an overall assessment. 70
To sum up, the Court further specified the extent of the procedural positive obligation under Article 4 CFR regarding, for example, the structure of the assessment, the sources to consider and the prisons that must be assessed. Therefore, this obligation leaves narrow room for discretion to the Member States’ authorities.
Explicit positive obligations under Charter rights
In 2020, the ECJ for the first time explicitly referred to a positive obligation under a Charter right in its judgment Commission v Hungary (Transparency of associations). 71 In context of the equivalence of the right to respect for private and family life enshrined in Article 7 CFR and Article 8 ECHR, 72 the ECJ stated that ‘(a)ccording to the European Court of Human Rights, that right (…) imposes a negative and unconditional obligation on the public authorities which does not require implementation by way of specific provisions and which may also nevertheless be supplemented by a positive obligation to adopt legal measures seeking to protect private and family life (…).’ 73 It did not specify further details of the obligation's content or extent and the recognized positive obligation entailed in Article 7 CFR had no further significance for the Court's decision in that case. Nevertheless, the ECJ made reference to that case in subsequent judgments explicitly relating to positive obligations under the Charter. 74
Subsequently, the ECJ explicitly addressed the possibility of positive obligations in its case-law concerning preventive, general and indiscriminate retention of traffic and location data. The ECJ assessed whether positive obligations entailed in Charter rights could justify an interference in fundamental rights by legislation requiring data retention. The Court essentially concluded that EU law in general precluded preventive measures imposing a general and indiscriminate retention of traffic and location data. Positive obligations under the Charter could not justify such measures. 75
The case La Quadrature du Net concerned national legislation in Belgium and France, which imposed an obligation on providers of electronic communication services requiring the general and indiscriminate retention of traffic and location data inter alia for reasons of national security. 76 The question was whether such legislation was in conformity with EU law, particularly Article 15(1) ePrivacy Directive. 77 This provision allows Member States to restrict certain rights and duties safeguarding privacy in electronic communication entailed in that directive, particularly through permitting the retention of data for a limited period. Such a restrictive legislative measure must in accordance with Article 15(1) ePrivacy Directive be ‘necessary, appropriate and proportionate (…) within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system (…)’.
With regard to positive obligations, the referring courts were uncertain to what extent the right to security enshrined in Article 6 CFR affected the interpretation of Article 15(1) ePrivacy Directive. In addition, the referring Constitutional Court of Belgium pointed out that the Belgian legislation at issue ‘also implements positive obligations flowing from Articles 4 and 7 of the Charter, consisting in the establishment of a legal framework for the effective prevention and punishment of the sexual abuse of minors’. 78
First, the ECJ clarified that the national measures at issue fell within the scope of the ePrivacy Directive, even though their objective, namely to safeguard national security, remained the sole responsibility of each Member State according to Article 4(2) TEU. 79 Any exception of the directive based on Article 15(1) ePrivacy Directive must comply in particular with the fundamental rights of the Charter. 80 However, the retention of traffic and location data in itself constituted an interference with the rights to respect for private life and the protection of personal data, enshrined in Articles 7 and 8 CFR. 81 In addition, it was capable of deterring users of electronic communications systems from exercising their freedom of expression, guaranteed in Article 11 CFR. 82 Moreover, the Court assessed whether these limitations on the exercise of those fundamental rights could be justified in accordance with Article 52(1) CFR and Article 15(1) ePrivacy Directive. 83
On the one hand, Article 6 CFR could not ‘be interpreted as imposing an obligation on public authorities to take specific measures to prevent and punish certain criminal offences.’ 84 The ECJ explained that, in compliance with the case-law of the ECtHR relating to Article 5 ECHR, Article 6 CFR only applied to deprivations of liberty by a public authority. 85 On the other hand, the ECJ pointed out that positive obligations might result for public authorities, with regard to combatting criminal offences particularly committed against minors and other vulnerable persons. Article 7 CFR might require the authorities to adopt legal measures to protect private and family life and to protect an individual's home and communications. 86 Further positive obligations might arise from Article 3 CFR regarding the protection of the physical and mental integrity of an individual and from Article 4 CFR with regard to the prohibition of torture and degrading treatment. 87 In view of these positive obligations, the ECJ had to strike a balance between the various interests and rights at stake. 88 The ECJ justified the positive obligations with Article 52(3) CFR and the case-law of the ECtHR in relation to Articles 3 and 8 ECHR. 89 Accordingly, these provisions ‘require, in particular, the adoption of substantive and procedural provisions as well as practical measures enabling effective action to combat crimes against the person through effective investigation and prosecution, that obligation being all the more important when a child's physical and moral well-being is at risk.’ 90 However, the adopted measures must fully respect other freedoms and rights, particularly due process and other safeguards limiting the scope of criminal investigation powers. The ECtHR case-law called for the establishment of a legal framework, striking a balance between the various interests and rights to be protected. 91
Against this background, the ECJ concluded that legislation providing for the preventive, general and indiscriminate retention of traffic and location data for the purposes of combatting crime and safeguarding public security was disproportionate. This was so because it affected all persons using electronic communication services, even though no (even indirect) link to the aim pursued existed. 92 The positive obligations, which might arise from Articles 3, 4 and 7 CFR could not justify such a serious interference with Articles 7 and 8 CFR for practically the entire population without a link between the data of the persons concerned and the objective pursued. 93 On the contrary, the aims of combatting serious crime, preventing serious attacks on public security and safeguarding national security in light of the recognized positive obligations, could justify a targeted preventive retention of traffic and location data. 94
Recapitulating, the ECJ ruled out a positive obligation under Article 6 CFR to take measures to prevent and punish certain criminal offences, but derived positive obligations from Articles 3, 4 and 7 CFR. This was justified with Article 52(3) CFR and the corresponding Convention rights to the pertinent Charter rights. 95 With regard to the extent of the obligations entailed in Articles 4, 6 and 7 CFR, the ECJ referred to the case-law of the ECtHR 96 and did not make any further specifications. However, the ECJ did not require specific action from Member States’ authorities. The positive obligations, which might arise from Articles 3, 4 and 7 CFR, rather played the role of a ‘legitimate aim’ in the proportionality assessment. 97
Interim findings
The analysis of the academic literature and the case-law has shown that elements of the ECtHR's positive obligation doctrine can be found in a few ECJ judgments in relation to Charter rights. Although there are initial roots for a concept of positive obligations in the cases analysed, we certainly cannot speak of a doctrine of positive obligations under EU law (at least not yet).
This is mainly because the number of cases is small and the positive obligations addressed therein are not always obvious. Particularly, the Court so far has not assessed a violation of a Charter right through a Member State's omission. The obligations derived in the cases presented are rather closely linked to a (possibly upcoming) violation of a negative fundamental right obligation. 98
In La Quadrature du Net, while including explicit references to positive obligations, the Court seems to merely recognize the notion and concept of ‘positive obligations’ as developed by the ECtHR, without really applying the doctrine in an EU law context. The positive obligations are rather assessed as a potential justification for interferences with other fundamental rights. The reason why the ECJ considered positive obligations in that case was probably because of the questions of the referring Constitutional Court of Belgium, which specifically had introduced positive obligations as grounds of justification for the data retention. 99 Therefore, the explicit reference to positive obligations in the more recent case-law does not specifically represent a further development of a positive obligations concept under EU law. One may only draw the conclusion that Charter rights may in principle entail positive obligations. At least, by explicitly referring to positive obligations while still adopting such a reserved approach, the Court shows that it is neither reluctant to address positive obligations under the Charter nor avoiding that specific notion. 100
But why does the concept of positive obligations not seem to be able to assert itself under EU law? How do the challenges identified limit the development of that concept in EU law and what are the remaining possibilities for embedding the concept into the structure of EU law? In order to answer these questions, the next section will examine the case-law in light of the challenges identified.
Limits and possibilities for endorsing positive obligations in EU law
The barely existing development of an EU law-specific concept of positive obligations may in essence be traced back to the narrow potential room for application of such obligations, especially in relation to Member States. After having outlined that scope, this section will dive into the competence-sensitive aspect when substantially determining positive obligations. Therefore, the focus will be on the Court’s reasoning for figuring out the substance, extent and limits of these obligations.
A narrow potential room for application of positive obligations
The narrow potential room for application of positive obligations is linked to a combination of two factors which will be illustrated in the following: the limited applicability of the Charter in relation to Member States 101 in combination with the relevance of secondary law for fundamental rights protection. 102
The applicability of the Charter as a precondition
For Member States, positive obligations may only arise when they are implementing a provision of EU law, without the Charter itself being used as an argument for extending the scope of Union law. 103
Therefore, in some cases it is not possible for the ECJ to touch upon positive obligations due to a lack of implementation of EU law. A striking example was the Medicinal Cannabis case. It concerned a Russian national suffering from a rare form of blood cancer, who was treated in the Netherlands where he was staying illegally. The treatment involved the administration of medicinal cannabis, which was prohibited in Russia. One of the referring questions concerned inter alia whether Directive 2008/115
104
read in conjunction with Article 7 CFR provided in such a case that a right of residence must be granted in accordance with the right to respect of private life.
105
In this regard, the ECtHR had recognized a positive obligation to grant a residence permit in a context relating to the right to family life under Article 8 ECHR,
106
which corresponds to Article 7 CFR in the sense of Article 52(3) CFR.
107
In other words, the ECJ dealt with the question whether Article 7 CFR entailed a corresponding positive obligation in view of the concerned person's right to respect for private life. In this regard,
108
the ECJ rejected the applicability of the Charter. Article 6(4) of Directive 2008/115 permits Member States to grant for compassionate or humanitarian reasons a right of residence to a third-country national staying illegally on their territory; granting such a right was, according to the ECJ, in the sphere of the Member States’ national law, and not in the sphere of EU law.
109
Subsequently, the Court held: In accordance with Article 51(2) of the Charter, the provisions of the Charter do not extend the scope of EU law. Consequently, it cannot be held that, under Article 7 of the Charter, a Member State can be required to grant a right of residence to a third-country national who falls within the scope of that directive.
110
By contrast, in the Chatzi case, the ECJ affirmed the Charter’s applicable, leading to the Member States’ obligation to consider the special situation of parents of twins and discussing possible appropriate measures. 112 This was the case although EU law set out a minimum protection requirement of three months of parental leave, which was largely exceeded by the relevant Member State, providing for nine months of paid parental leave. 113 In light of the more recent case-law mentioned above, 114 the ECJ should have rejected the applicability of the Charter to national provisions providing for further protection than minimum EU standards. Hence, the Chatzi judgment received criticism, 115 since the ECJ made use of a positive Charter dimension in an area, where the applicability of the Charter was questionable.
Accordingly, the interpretation of provisions of secondary law plays an essential role for determining whether the Charter and thus potential positive obligations apply. However, before considering possible positive obligations under the Charter, it is worth examining whether a corresponding obligation is already laid down in ulterior EU law (in particular secondary law).
The relevance of secondary law for the application of positive obligations
In fact, in cases where Member States do implement EU law and therefore potential positive obligations could apply, the relevant provisions of EU (secondary) law usually include obligations for the Member States to ensure the protection of fundamental rights. 116 After all, the EU legislator is at all times bound to the Charter pursuant to Article 51(1) CFR. Besides legislation as a tool for determining the Charter’s scope of application, 117 there is legislation giving specific expression to a fundamental right and further legislation entailing ‘accessory’ provisions with regard to fundamental rights. 118 In this respect, Beijer and De Witte have argued that due to the relevance of secondary EU law as a framework for the protection of fundamental rights, there has been less need in EU law for defining positive obligations under the Charter. 119
In those situations, the necessity to draw on positive obligations is limited to cases, where the obligation set in the provision of EU law does not meet the standard of protection guaranteed by the Charter. According to Beijer, positive obligations may be relevant under the Charter when gaps in ensuring fundamental rights protection appear in EU legislature. 120 Additionally, positive obligations may apply when the wording of EU legislature provides for a certain level of protection, which is, however, lower than the protection guaranteed by the Charter. This is because the Charter is part of primary law, 121 meaning that secondary law must comply with it. 122 Accordingly, secondary law must be interpreted in the light of the fundamental rights guaranteed by the Charter. 123 In fact, this is how the ECJ proceeded in the majority of the judgments featuring elements of positive obligations.
For example in the CCOO judgment, the Court interpreted the provisions of Directive 2003/88 in the light of Article 31(2) CFR, 124 leading to an obligation for the Member States to impose the establishment of a working time recording system. The Court argued that in order to ensure respect for that fundamental right, the directive ‘may not be interpreted restrictively at the expense of the rights that workers derive from it (…).’ 125 Particular regard was given to the importance of Article 31(2) CFR when interpreting the directive's provisions. 126 That way, the Court derived an obligation from the directive which was not specifically included in its wording. 127
Also in the UPC Telekabel Wien judgment, the Court interpreted Article 8(3) Directive 2001/29 128 in the light of the fundamental rights enshrined in the Charter. 129 The provision obliged the Member States to ‘ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.’ Therefore, that provision already entails an obligation ensuring a balance between the enjoyment of different fundamental rights, namely ‘(i) copyrights and related rights, which are intellectual property and are therefore protected under Article 17(2) of the Charter, (ii) the freedom to conduct a business, which economic agents such as internet service providers enjoy under Article 16 of the Charter, and (iii) the freedom of information of internet users, whose protection is ensured by Article 11 of the Charter.’ 130 The ECJ specified Article 8(3) Directive 2001/29 by requiring a remedy for internet users against an injunction in order to ensure the protection of Article 11 CFR in particular. 131 Hence, although secondary law may entail obligations for the Member States with regard to fundamental rights enjoyment, that provision may be specified through an interpretation in conformity with the Charter.
An example for filling regulatory gaps through fundamental rights is the Aranyosi case. The obligation of the executing judicial authorities to assess the detention conditions resulted from the interpretation of Article 1(3) FD-EAW. 132 According to this provision, the FD-EAW does not modify the obligation to respect fundamental rights enshrined in Article 6 TEU. The ECJ carried out a consistent interpretation of Article 1(3) FD-EAW in the light of primary law, in particular Article 4 CFR. 133 According to Advocate General Campos Sánchez-Bordona, the Aranyosi case-law ‘is an example of the judicial creation of law, by the Court of Justice, justified by the need to provide a means of protection of individual fundamental rights in situations not explicitly provided for by the legislature in the context of the EAW’. 134
Although secondary law is an important element in the EU's system of fundamental rights protection, it is impossible for the EU legislator to anticipate every situation that could lead to a fundamental rights violation. As Advocate General Campos Sánchez-Bordona noted with regards to the FD-EAW, ‘given the presumption that all the Member States respect the fundamental rights, the EU legislature could hardly have envisaged the possibility of generalised and systemic deficiencies liable to lead to the infringement of a requested person's fundamental rights.’ 135 And until today, the EU legislator has not reformed the FD-EAW. 136
These cases show how positive obligations may be considered as a tool for interpreting secondary law favourably to ensure fundamental rights protection or for filling regulatory gaps in secondary law. However, they also illustrate the competence-sensitive aspect of positive obligations, which requires adequate reasoning. Therefore, the next subsection will deal with the reasoning for deriving positive obligations.
Deriving positive obligations and determining their substance, extent and limits
The competence-sensitive aspect of endorsing positive obligations particularly lies within the fact that the ECJ, and not the EU legislator, 137 plays its part in the decision-making process by determining the appropriate measures and thereby compensating for the incomplete legislation. 138 Moreover, positive obligations with a high level of specificity leave Member States with little discretion, which is even more limited in cases of full harmonization, excluding the application of national fundamental rights offering a higher level of protection. 139 Therefore, the Court must have particular regard to avoiding the overstretching of competences. When deriving positive obligations under Charter rights, the Court must act in strict accordance with the recognized methods of interpretation and the requirements for developing the law. Hence, it is important for the Court to provide a comprehensible reasoning. 140
In the more recent case-law, the main argument for deriving positive obligations under Charter rights is based on Article 52(3) CFR. This reasoning definitely makes sense, if applied accurately. For example, as regards the interpretation of Articles 4, 6 and 7 CFR in La Quadrature du Net, the Court referred to Article 52(3) CFR and the corresponding Convention rights to the pertinent Charter rights. 141 Accordingly, the ECJ negated a positive obligation under Article 6 CFR to take measures to prevent and punish certain criminal offences, since the corresponding Article 5 ECHR applied to deprivations of liberty by a public authority. 142 Furthermore, the positive obligations flowing from Article 4 and 7 CFR were substantiated with the case-law of the ECtHR regarding the corresponding safeguards in Articles 3 and 8 ECHR. 143 Therefore, in this regard the Court accurately applied the rule of interpretation enshrined in Article 52(3) CFR. Particularly, the ECJ refrained from further specifying the extent of the positive obligations arising for the Member States within the scope of EU law. Rather, the Court left it to the Member States to evaluate ‘depending on the circumstances’ 144 the measures needed in order to meet the positive obligations. The only limit set by the ECJ is that the measures adopted must not lead to an interference with Articles 7 and 8 CFR that is as serious as that provided by a preventive, general and indiscriminate retention of traffic and location data. 145
However, Article 52(3) CFR should not be abused as a general argument for deriving positive obligations in every circumstance. As an example, while the ECJ comprehensibly derived positive obligations from Articles 4 and 7 CFR due to Article 52(3) CFR, the Court added that ‘(s)uch obligations may also arise from (Article) 3 (…) as regards the protection of an individual’s physical and mental integrity’. 146 However, Article 3 CFR is not reflected as such in the ECHR and therefore Article 52(3) CFR does not apply. 147 The ECJ could have provided a stronger base for the obligations derived under Article 3 CFR, for instance by insisting on the link between Article 3 CFR and Article 8 ECHR, which protects bodily and mental integrity as part of the right to private life. 148
When going further than a mere interpretation, more precisely when developing the law beyond the limit of a possible literal sense, the Court must fill an unplanned regulatory gap and duly justify. 149 For example, regarding the obligation derived from Article 4 CFR to conduct a two-stage test in order to assess the detention conditions, the Court based its reasoning on the positive obligations entailed in Article 3 ECHR. 150 In principle, such an interpretation would be covered by Article 52(3) CFR. A general obligation to assess the conditions of detention can be deduced from the positive obligation under Article 3 ECHR as defined by the ECtHR (‘a positive obligation to ensure that any prisoner is detained in conditions which guarantee respect for human dignity’). 151 However, the extent of the positive obligation defined by the ECJ under Article 4 CFR goes beyond that. It is much more specific, for instance in relation to the structure of the assessment, the sources to consider and the prisons to assess.
The structure of the assessment requires evidenced fundamental rights deficiencies, which for instance had to be established by the ECtHR beforehand, as a precondition for an individual fundamental rights assessment. 152 More specifically, fundamental rights claims of individuals entirely based on their particular circumstances would not lead to a specific assessment of the detention conditions. 153 However, particularities of EU law can reasonably explain the special structure involving an initial general and a subsequent individual assessment. The assumption of the issuing Member States’ conformity with fundamental rights in accordance with the principle of mutual trust becomes absurd 154 if verified fundamental rights deficiencies exist in that Member State. Therefore, only then must an individual assessment be carried out. With other words, such an obligation is only necessary in cases of systemic deficiencies. Where the presumption of compliance with fundamental rights is intact, such an obligation would go beyond the aim of effective fundamental rights protection. Moreover, as developed earlier, when determining the extent of positive obligations under the Charter, other principles governing EU law must be taken into consideration. Hence, the principle of mutual trust may be classified as an EU-specific limit of a positive obligation’s extent. 155
Further, the very specific choice of the sources and the prisons to consider for the assessment may as well be justified by specificities of EU law. The choice of the sources, namely judgments of the ECtHR and UN documents, could be explained by the references to the respective international institutions in Articles 3(5) and 6(3) TEU. Regarding the ECJ’s choice of the prisons to consider in the assessment, the delimitation of competences in accordance with Article 51(1) and (2) CFR is relevant. Only those prisons must be considered in which the sought person is actually intended to be detained, because the compliance with fundamental rights of detention conditions in other prisons in which the person may possibly be held at a later stage falls exclusively within the jurisdiction of the courts of the issuing Member State. 156
However, these precise considerations relating to the extent and limits of positive obligations under EU law were not sufficiently provided by the ECJ. The reasoning follows the logic of Article 52(3) CFR, which only concerns the interpretation of the pertinent Charter right itself and does not take into account the entirety of the EU fundamental rights system. Thus, besides justifying the specificity of the obligation derived, such considerations would enable the embedding of the concept of positive obligations in the structure of EU law. 157
Moreover, the reasoning based on Article 52(3) CFR merely represents one possible interpretational approach among others for deriving positive obligations. Another justification may be provided by the positive obligations’ original aim to ensure effective fundamental rights protection. In fact, the exigence of effectively safeguarding fundamental rights was one of the main factors for the development of the positive obligations doctrine by the ECtHR. 158 The ECtHR described positive obligations as ‘inherent’ 159 in an effective protection of fundamental rights, meaning that the rights guaranteed ‘are not theoretical or illusory but practical and effective (…).’ 160 In essence, these obligations tend to ‘ensure the tangible material and judicial conditions for genuine exercise of the rights protected by the Convention’. 161 A comparable interpretational approach under EU law is the functional interpretation. 162 This sub-type of teleological interpretation requires choosing the interpretation that best preserves the effet utile (effectiveness) of a provision. 163 Likewise, positive obligations under Charter rights could ensure their effet utile, namely enabling effective fundamental rights protection.
This argument was made by the ECJ in the CCOO judgment, requiring the Member States to impose the establishment of a working time recording system. The Court argued that without such a system it would be excessively difficult or impossible for workers to enjoy their rights guaranteed by Article 31(2) CFR and by Directive 2003/88. Therefore, in order to ensure effective fundamental rights protection the Court considered it necessary for the Member States to set up such a system. 164
To sum up, the challenges identified initially limit the development of positive obligations, both concerning their room of application and concerning the determination of their substance and extent. However, there are still remaining possibilities for developing positive obligations. In terms of scope, positive obligations may become relevant when deficits or gaps regarding fundamental rights protection appear in EU legislation. In those situations, the Court may take such obligations into account for interpreting secondary law in light of the Charter. In terms of reasoning, the Court may have recourse to interpretational approaches based on Article 52(3) CFR or the principle of effet utile. Relevant rules and principles of EU law may influence the substance and extent of EU law-specific positive obligations. Ultimately, with these limits and possibilities in mind, what are the potentials of implementing positive obligations under the Charter?
Potentials of positive obligations under the Charter
An obvious potential of endorsing positive obligations is to ensure effective fundamental rights protection. In fact, where they are applicable, positive obligations may act as a means of protecting individuals’ fundamental rights for such situations unregulated by EU legislation. 165 But what are the advantages of deriving such obligations under the Charter in comparison to relying on the already established doctrine under the ECHR?
Heringa and Verhey have argued that the potential for problems arising from the EU-specific limits for applying positive obligations ‘is not particularly serious because the Member States are also bound by the full extent of obligations, negative as well as positive, on the basis of the Member State being a party to the ECHR’. 166 This approach is corroborated by the fact that the main argument for deriving positive obligations under the Charter is based on transferring the ECtHR’s concept in accordance with Article 52(3) CFR.
However, this perspective is not absolutely valid, since firstly, according to Article 53 CFR the Charter’s level of protection should never fall below the one guaranteed by the ECHR. 167 Also, in fully harmonized legal fields, like the FD-EAW, the Member States cannot apply more protective fundamental rights standards than the standard guaranteed by EU law. 168 In these situations, national courts are not able to consider ulterior positive obligations which bear more favourable protection than the Charter. Therefore in such cases, it is all the more important to ensure effective fundamental rights protection under the Charter, which may be accomplished through resorting to positive obligations.
Yet there are more generally applicable benefits in developing positive obligations specifically under the Charter, instead of relying on the already established positive obligations by the ECtHR. Those advantages for individuals may arise when applying EU law, such as direct effect in national proceedings or potential state liability in case of a violation. 169
More particularly, an added value of positive obligations under EU law is the possibility to tailor the obligation to the given circumstances of EU law. This could for instance be necessary for the obligation to fit within the limits of EU law, as already developed regarding the extent of the obligation derived from Article 4 CFR to conduct a two-stage test in order to assess the detention conditions. 170 Additionally, the Court may combine positive obligations to ensure fundamental rights with the relevant provisions of secondary law. This was the case in UPC Telekabel Wien. In this decision, the Court derived an obligation to provide for a remedy for internet users to ensure their right to freedom of information against an injunction which was specifically provided for in Article 8(3) Directive 2001/29.
Furthermore, endorsing positive obligations would also mean that the concept may be applied to fundamental rights which are not guaranteed by the ECHR. The CCOO judgment for instance concerned Article 31(2) CFR, namely the right of every worker to a limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave. This right is not mirrored in a corresponding right in the ECHR. 171 The obligation of requiring a working time recording system was derived in an autonomous manner. The case also shows that Article 52(3) CFR is only one interpretational approach among others enabling the Court to derive positive obligations. The CCOO case is a clear example in which a positive obligation was derived with the argument of the fundamental right's effet utile. Therefore, the Court may as well develop autonomous positive obligations, independent of Article 52(3) CFR and the ECHR. In case other fundamental rights would be affected, the Court would have to strike a balance between the competing rights.
Compared to the doctrine of positive obligations already established under the ECHR, a similar concept under the Charter would have the advantage of taking into account the circumstances and legal requirements under EU law. It may also lead to further obligations which are EU-specific and not rooted in the ECHR.
Conclusion
Over the last years, the notion of ‘positive obligations’ has found its way into some ECJ judgments. However, a doctrine of positive obligations under EU law has not been developed by the Court (at least not yet). Questions concerning the extent and the limits of positive obligations and therefore their relation to the principles governing the EU system of fundamental rights remain open. By explicitly addressing positive obligations under the Charter, the Court has shown that it is not reluctant with regard to that concept per se.
Rather, the room for application of positive obligations in EU law appears narrow, especially with regard to the Member States. This is particularly due to the limited scope of the Charter in combination with the obligations ensuring fundamental rights protection entailed in EU legislation. When deficits or gaps regarding fundamental rights protection appear in EU legislation, positive obligations for Member States may ensure effective fundamental rights protection. The Court may take such obligations into account for the interpretation of secondary law in light of the Charter.
In view of the competence-sensitive aspect of positive obligations, it is crucial for the Court to provide for a methodologically accurate reasoning. In the more recent case-law, the main argument for deriving positive obligations is based on Article 52(3) CFR. While this reasoning is in principle convincing, the analysis has, however, shown that Article 52(3) CFR may not act as a passe-partout for deriving positive obligations under every circumstance. Rather, that rule of interpretation must be applied accurately and a further development of the law beyond a mere interpretation must be duly justified. That justification should incorporate considerations relating to the extent and limits of positive obligations under EU law that would enable the embedding of the concept in the structure of EU law. Such considerations were insufficiently provided by the case-law up to now, in particular since Article 52(3) CFR only concerns the interpretation of the pertinent Charter right itself and does not take into account the entirety of the EU fundamental rights system. Even though less present in the more recent case-law, another possible reasoning would be the argument of effet utile, as positive obligations may ensure effective fundamental rights protection.
With these limits and possibilities in mind, developing positive obligations would especially be relevant in areas of full harmonization, where Member States may not adopt a higher level of protection than the one guaranteed by EU law. Compared to relying on positive obligations established under the ECHR, developing such obligations under EU law would bear the advantage of taking particular circumstances and principles under EU law into account. Also, further positive obligations which are autonomous and not rooted in the ECHR may contribute to effective protection of Charter rights.
