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7 octobre 2016

How international law works in times of crisis

22nd Annual Conference of the European Society of International Law (ESIL), Riga, September 10, 2016

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How international law works in times of crisis

22nd Annual Conference of the European Society of International Law (ESIL), Riga, September 10, 2016

Closing address by Jean-Marc Sauvé[i], Vice-president of the French Conseil d’État

President of the European Society of International Law,

President of the Latvian Constitutional Court,

Rector of the Riga Graduate School of Law,

Ladies and gentlemen,         

Dear colleagues,

It is a pleasure and an honour for me to speak to you today at the 22nd annual conference of the European Society of international law (ESIL). I would like to very warmly thank the organisers of this event along with the authorities and institutions of Latvia for their welcome, and in particular, the Constitutional Court and the Riga School of Law. This conference, which brings together the entire European and international legal community, has been an opportunity to exchange over a period of several days on issues of common interest and on the challenges for the future that together we must meet.

The theme of the conference has led to examine, in various areas, how international law works in times of crisis. It goes without saying that the organisers have shown a keen sense of anticipation in choosing this theme. It has indeed become absolutely central recently, with the intensification of the migrant, security and geopolitical crises in our countries or at their doors, and with the outcome of the Brexit referendum. The European continent is today facing a multifaceted crisis that extends over several levels forming a complex tangle that must be unpicked in spite of its uncertain and tentacular appearance.

To help us in this task, let us refer to the work of philosopher Paul Ricoeur who, at a lecture in 1986[ii], noted the originality and diversity of the crises experienced by modern societies. Traditionally, in the medical, economic and political fields, there is nothing unexpected or disorderly about crises. They are a necessary, sometimes extreme, stage in a course of events that comes to an end. They are indicative of a person’s state of health, the degree of maturity of an economy or the extent to which a political regime is supported. Crises are well-ordered intelligible processes that determine the future. They are “the critical moment when choices must be made and decisions taken with discernment”.[iii] They are not just destructive, they can also have purgative, soothing virtues when they pave the way for a new phase of growth or progress. Economic crises thus form the join between Kondratiev or Juglar cycles of expansion ; political crises, in a sense conveyed by the philosophers of the Enlightenment,[iv] go hand in hand with profound changes in societies and can contribute, through the breakdowns they bring about, to establishing a fairer political order.

Seen in the light of these traditional models, our time appears to denote a double fracture: the crisis is no longer periodic or short term; it has become permanent. It does not enlighten us about the direction of change. It has become a source of indecision, disorders and uncertainties as to its causes and its effects, its diagnosis and remedies. Crises no longer point as clearly as before to the post-crisis horizon. This dual breakdown undoubtedly stems from the deep-seated undermining of our conception of progress and of individual and collective identities. Today we are confronted with the dizzying prospect of an endless crisis, without order or limit.

First I would like to explore, on what might be called a homeopathic basis, the full economic, social, political and environmental dimensions of this dizziness (I).  I will then concentrate on the specifically legal dimension of contemporary crises: I will attempt to show how international law is at one and the same time a traditional tool for solving crises, and one that can also contribute to intensifying and prolonging their effects. (II). Finally, I will humbly attempt to identify some tools for—if not solving— at least regulating and managing current crises, based on my own experiences as former government official and current head of a Supreme national Court. (III).

I. Our era is marked by a succession of sectoral and regional crises that border on a systemic and global crisis.

Let me begin by outlining the diversity of these crises depending on whether their cause is an exogenous shock (A) or on the contrary shocks that are endogenous to Europe. (B).

A. The first series of crises originates from exogenous shocks that affect European societies from the outside.

1. The first of these shocks appeared with the financial collapse referred to as the subprime crisis.

This started in the United States in July 2007 before suddenly and brutally deteriorating in September 2008 when a major American bank went bankrupt, and then spreading to the global economy within just a few days – in particular to the European financial and banking systems. Without venturing into an analysis of the complex causes of that crisis, it is clear that it originated in internal imbalances on the US markets, in particular insufficient restrictions on access to mortgages, ineffective regulation of banking activities, against the backdrop of a highly accommodating monetary policy, which – incidentally – Central Banks continue to avail themselves of today. This crisis that originated in the banking and financial sectors caused the leading world economies to enter into recession. According to the economist Thomas Piketty, the “Great Recession”[v] of 2007-2009 led to an approximately 5% drop in economic activity in less than two years, making this the most serious world recession since the crisis in the 1930s. Between the first quarter of 2008 and the second quarter of 2010, unemployment in the European Union of 28 States increased to just over 7 million people i.e. a European unemployment rate of 9.7 % – which at that time was the highest rate recorded since the beginning of the years 2000.

2. This first transatlantic exogenous shock was compounded by a second exogenous one that was trans-Mediterranean and of a migrant nature.

This came in the form of a considerable influx to Europe of migrants coming from North Africa, and then the Near East and sub-Saharan Africa in the wake of what were referred to as ”the Arab Springs”. With the toppling of the political regimes of Tunisia, Egypt and Libya, followed by the Syrian crisis as of the autumn 2011, the south-north migrant flows increased sharply, either directly from the regions concerned, or indirectly by prompting the migrants from more remote regions to come into Europe. In 2013, 1.7 million nationals from third countries immigrated to the 28-Member State European Union. In 2014 they were 1.9 million and then again 1.8 million in 2015. Some of these migrants are asylum seekers in the context of the civil war in Syria: their numbers in the European Union more than doubled between 2011 and 2014, reaching nearly 1.26 million people last year, i.e. double the previous peak reached in 1992 for the European Union with 15-member states.[vi] This figure continues to grow in 2016: 665,000 for the first seven months as compared to 434,000 for the same period the previous year. These lasting, large-scale migrant flows are not uniformly distributed. They are concentrated in the States that lie on the outer borders of the Union, in particular the Mediterranean area and Central Europe. They then extend onwards to other member States in the Union, which are the desired final destinations, in particular Germany, the United Kingdom and France. For instance, in 2014, the number of migrants from third countries that reached Germany was well above 500,000. For the United Kingdom and France these figures were respectively 345,000 and 207,000. That year, 90% of asylum seekers were concentrated in nine member States – with nearly a third in Germany, which in 2015 hosted 442,000 asylum seekers.[vii] Confronted with this situation, the mechanism for transferring asylum seekers between member States set out by the Dublin Convention and Dublin Regulations, proved to be totally inadequate for dealing with this new refugee and migrant situation.

3. The third exogenous shock affects our security and is rooted in the emergence of new threats to the peace and stability of Europe.

These threats lie in three concentric circles whose centre is the territory of the European Union around which several areas of instability revolve. First of all, in the largest circle, there are the armed conflicts that have taken place or that continue in the Sahel, the Middle East and the north of the Arabian peninsula, where the Syrian conflict erupted in 2011 and violence resumed in Iraq. In the second circle, which includes the neighbouring States that border directly on to Europe, conflicts have also broken out destabilising all the peripheral regions: in Ukraine, where the country’s territorial integrity was attacked and where some territories are occupied; in Turkey, which as a result of the Syrian crisis is experiencing a massive influx of refugees—more than 1 million since 2011 according to the HCR—and is furthermore affected by major tensions connected with the Kurdish crisis and the worrying developments in its political situation particularly since the attempted coup on July 15 and the recent engagement of armed troops on Syrian territory. Finally, the last circle of violence and threats cover the European Union itself and more specifically the western States of the Union, which were struck by Islamist terrorism beginning in March 2004 in Madrid and London in July 2005. These events, sparked from the outside, have increased in number in the recent months particularly in France but also in Belgium and Germany. What these attacks express is a denial of the founding principles of the rule of law and of democratic values. This is no doubt the most painful and deeply felt shock that we have collectively suffered because it touches the heart of national identities and of the European project.

Over a period of 10 to 15 years, Europe has faced a triple exogenous shock: in the areas of the financial markets, migration and security, the harmful effects of which were compounded and mutually reinforced one another. However it would be far too simple, not to say simplistic, to attribute the current state of crisis to upheavals coming from the outside alone, as if this state of affairs was the outcome of contingencies and could be exonerated from a critical examination of how our institutions and societies function.

B. The second series of crises are the outcome of endogenous shocks arising from malfunctions and divisions that weaken Europe from the inside.

1. The first of these endogenous shocks is economic in nature.

Starting in 2010 and even more so in 2012, the risk premiums required for the bonds issued by some member States in the Eurozone rose to an excessive and unsustainable level that did not faithfully reflect their macro-economic situation but instead was designed to cover the risk of a breakdown of the Eurozone. Undoubtedly the sequence of events that transformed a financial crisis into an economic one and then into a crisis of European public debts was amplified by intense financial speculation. But this sequence is rooted in the deep-seated vulnerabilities internal to the Eurozone, which is by no means an optimum currency area.[viii] Hindrances to the mobility of factors of production continue to exist while the economic structures of its members are more and more diverse. Disparate shocks that inevitably occur are first dealt with at the level of the individual States rather than through a common fiscal policy. Furthermore the management and conduct of a single monetary policy are burdened or even shackled by the divergences in the rates of inflation and growth and the diversity of the funding structures within the zone. In short, the European policy mix since 1999 can be described as “sub-optimal”, “too restrictive”[ix] and insufficiently effective, particularly since the economies of the Eurozone States have diverged in the meantime and structural differences between them are even greater.

2. The second endogenous shock is environmental and arguably not strictly endogenous.

Climate change is a transnational phenomenon and represents an immediate and potentially irreversible threat to human societies and natural ecosystems in the whole world and in Europe. In December 2015 at the Paris climate conference, the COP 21, States expressed deep concern as to the urgency of closing the significant gap between the results obtained in the area of greenhouse gas emission reduction and the global and very rapid development in the level of those emissions. While some progress is reported, it is clearly insufficient and incommensurate with what is at stake. Already in October 2014, the heads of state and government of the European Union had set a binding target for the reduction in greenhouse gas emissions. In line with those ambitions, the Paris agreement is designed to strengthen the global response to the threat of climate change by containing the increase in the average temperature of the planet well below 2°C as compared with preindustrial levels and by pursuing the action initiated to limit this temperature increase to 1.5°C[x]. Although 177 States signed the Paris agreement in New York on April 22, 2016, it will not enter into force until it is ratified by at least 55 States representing a total of 55% of the world greenhouse gas emissions.

3. The third endogenous shock affecting Europe is of a societal and political nature.

European societies appear to be struggling with a loss of bearings and a preoccupying inclination to turn inward and withdraw in the context of major economic and social transformations connected with globalisation and the information society which in France is referred to as the uberisation of the economy, a term derived from the US company name Uber. While these changes generate opportunities and the promise of new activities, they also destabilise entire swathes of the traditional economy and undermine the standard of living, hopes and faith in progress of some portions of the middle class. A form of exhaustion of the liberal policies implemented some 30 years ago and the growing inequalities that they generate also feed this development. As a result, anxiety relating to identity in connection with the opening of borders and migration has developed with attitudes ranging from increasing doubts about the feasibility of integrating foreigners to outright xenophobia. Added to this is the fear of downward social mobility within the regions and social groups threatened by current changes. The political consequences of the situation are highly visible and damaging. They can be seen in the rise in influence, and sometimes accession to power, of new political forces that challenge traditional elites and political parties. It is a situation associated with powerful centrifugal forces that threaten the cohesion and unity of States but moreover undermine the very principle of the European project. In this respect, the results of the Dutch referendum on April 6, 2016 relating to the Ukraine–European Union Association Agreement and those of the British referendum on June 23, 2016 on the Brexit brought out into the open the degree to which the ideal of the European enterprise has crumbled, no doubt hitherto underestimated. For a majority of the people of this great democratic nation profoundly rooted in European history to opt in favour of its withdrawal from the Union is no doubt the most alarming sign of loss of confidence in our common capacity to act. This is no longer attributable to just tiny extremist groups that have always prospered from situations of economic turmoil. Now an entire nation is reversing the course of the history of European integration. One can anticipate that Brexit will lead to disappointment and an aftershock in the United Kingdom and in Europe because the Union is all too often an outlet for venting frustration for those who have been excluded by globalisation, and a scapegoat, so to speak, in the face of economic and social difficulties. Of course the Union may have contributed but these difficulties will not cease to exist without the Union or outside of it.

So a triple endogenous shock—economic, environmental and political—is compounded by and intermingled with a triple exogenous shock arising from the financial, migrant and security crises. These factors are so tightly intertwined that the line between the internal and external causes is very faint, yielding a confused impression of general ongoing crisis. This impression is confirmed by the limitations and loss in efficiency of the traditional means for understanding and managing crises and, in the first place, of legal instruments.

II. International law, which has undergone far-reaching change, entertains ambivalent ties with European crises.

Clearly, international law is not neutral or purely operational: although more often than not external to the European crises, it can also cause, worsen, accompany and contribute to solving them or otherwise. It is therefore important to clearly identify the properly legal dimension of these crises, show how law can or cannot be an underlying factor for some of these and may be used as a tool for solving or aggravating matters (A). Additionally, the emergence of a crisis-management international law is not a temporary or contingent phenomenon. It is one of the far-reaching changes that affect the sources and principles of traditional international law (B).

A. The various sectoral crises I have mentioned translate into the legal realm in a way that directly influences their development.

Law in general, and international law in particular, because they are a tool for regulating social relations and a technique for implementing public policies on the domestic and international levels as well as an instrument for guaranteeing fundamental rights, are central components in the mechanics of every sectoral crisis. But they are by no means unidirectional: they allow for a better understanding, handling and solution of these crises but they can also distort, amplify, and prolong them. Without claiming to be complete, let me highlight the legal origins and manifestations of contemporary crises in some areas.

1. In the economic and financial area, the significance of legal questions has increased in pace with Europeanization of public policies.

During the Eurozone crisis, the design and conduct of economic and monetary policies on several occasions hinged on legal questions and the answers provided thereto by supreme national or European courts. As is apparent in the Pringle[xi] and Gauweiler [xii]cases, these answers in the end contributed to solving the crisis. But that was by no means a foregone conclusion. Never before had the role of law and of legal experts been so important for steering economic policies, precisely because of the European dimension. These questions would never have arisen within a national framework.

2. Furthermore law is not extraneous to the migrant and security crises.

Law is not the cause of these crises but, more and more often, it is suspected or accused of intensifying it, making its solution excessively complex and contributing to inefficiency. However, as is apparent from the migrant crisis, there is often confusion about the primary and secondary causes: serious inadequacies in the management of applications for asylum undoubtedly derive from the imperfections of the “Dublin” system but they are mainly the expression of an unfinished political process that has failed to lead to a truly common policy for asylum. Rather than criticising the political causes, there are those who prefer to denounce a given legal transposition and who oversimplify the complex balances between competing interests and requirements that must be met and stabilised by law. Law shows up and develops all the dimensions of the complexity of the migrant crisis—rather than creating or amplifying it. Law is liable to come under scrutiny at the state and European Union levels. And one of the noblest functions of law–—protecting fundamental rights—runs the risk of being called into question in the name of the efficient management of migrant flows. Law can also be presented, depending on the case, either as infringing freedoms or as hindering the fight against terrorism inasmuch is it constantly seeks out a balance between law enforcement and the repression of crime on the one hand and guaranteeing freedoms on the other. Clearly, this difficult reconciliation between freedom and security lies at the heart of controversial political debates that alternately denounce the attack on the rule of law and the decline of freedoms.

3. Finally, law is not entirely disconnected from the populist crisis that is focalised on social symbols or societal issues.

With the juridification of social relations, law deals more and more with sensitive social issues relating to bioethics, standards of behaviour, the family and minorities—questions on which it is difficult to reach a consensus at the national level, let alone at the European level. The dynamics of fundamental rights has accelerated and it encounters support and enthusiasm on its way as well as opposition and resistance, each with its own share of legitimacy. More than ever before, law is the language of social debates and protests: far from delimiting and settling them, it opens and develops them, providing fresh impetus, to the extent that there is no longer any obvious consensus about the consequences to draw from words like liberty, equality, dignity. In these circumstances, the legal community must be careful to avoid a double pitfall: on the one hand, the headlong rush towards guaranteeing rights that runs the risk of erasing some legitimate restrictions and national specificities and on the other, the threat of clinging to identity and exacerbated conservatism. The difficulty is heightened by the fact that this narrow path between two extreme tendencies does not travel only inside national frontiers: it continues on into the neighbouring States that are facing the same challenges and provide precedents or serve as examples or else, on the contrary, as anti-thesis. It also extends into the courtrooms of the European Courts at Strasbourg and in Luxembourg.

In the fields of the economy, security and society, law does not only reveal a crisis. It directly influences how the crisis develops, often when it has reached a climax. Through its symbolic reach, law accompanies the dramatization of the crisis, in principle to take it to its denouement. But when final court decisions, whether national or European, are vigorously contested, clearly the pacifying function of law withers and dissension may win the day. While legal experts are given a voice more and more often, their discussions are instrumentalised and heard on the basis of personal preference. In any case, they are not given the last word.

B. In this context, international law is still going through growing pains and continues its long-term transformation.

The term crisis might appear excessive at a time when international law has never been so vigorous. I use the term in an epistemological sense derived from the history of science[xiii] to designate a series of fundamental changes and a form of paradigm crisis for conventional international law.

1. The first series of transformations relate to the fact that the normative power of States no longer holds the main role.

While traditionally most international law originated from States, today it comes more from other actors.  Infra- and super-State actors now compete with, avert or even neutralise the centrality of State normative power.

a. These are firstly infra-State actors and in particular the large international corporations whose economic and financial weight bears heavily on the drafting of the rules applicable to them and on market regulation.

The growing disproportion between the power held by major multinational corporations or their associations and that of States, in spite of the fact that the latter represent huge consumer markets, has become a topic of concern when this discrepancy undermines the capacity of the States to fulfil their remit with respect to sovereignty. That remit includes the safeguarding of fundamental rights and freedoms that requires public authorities to bring about a fair reconciliation between public and private interests. In the area of digital technology for instance, it is clear that such reconciliation—which puts transparency and protection of privacy, safeguarding law and order and the defence of freedoms in the balance —cannot be spontaneously achieved simply by the free play of market forces or on the sole basis of the rules of soft law that have been drafted or inspired by large corporations. But beyond the question of regulating new markets, States must preserve the foundations of their social compact and, in particular, their tax sovereignty. In this area, they are confronted with strategies of avoidance and evasion that are increasingly sophisticated, carried out by specialised firms with the help of certain countries that adopt permissive taxation rules and enter into advance tax rulings that encourage certain forms of the fiscal dumping, sometimes opening the door to fraudulent practices. In this field, the weakness of international coordination and absence of common rules on transparency and regulation have undermined the sovereignty and normative power of all States and has impoverished their populations, in a ruthless form of globalisation.

b. In a quite different perspective, it should be stressed that the decline of State sources of international law is not necessarily synonymous with a weakening of States.

Indeed, States increase their influence and intervention by sitting on international organisations and sharing a number of sovereign attributes within integrated institutions. Seen from this angle, the expansion of supra-State sources is the expression of their sovereignty and a means to defend it. One of these sources, European Union law, has three specificities.

The first pertains to the magnitude of the field of application of European Union law and the extent to which Member States transfer their authority to its advantage. The European Union’s area of competence has been extended to many fields beyond the economy and the principal freedoms of movement (environment, internal affairs, justice, monetary policy, etc.).[xiv] While competition was the first matrix for European Union law, it is no longer truly its backbone. With the recognition of the general principles of law and the entry into force of the Charter of Fundamental Rights, the European Union has come of age as a union of law. The institutions and bodies of the European Union must comply with the Charter and so must the national acts that set out the detailed rules for applying regulations, transposing directives or protecting, even indirectly, the interests of the European Union. This is how article 51 is construed by the Court of Justice in its judgement of the Grand Chamber (Akerberg Fransson) on February 26, 2013: “the fundamental rights guaranteed by the Charter must … be complied with where national legislation falls within the scope of European Union law”.[xv] In French, the lexical shift performed by the Court of Justice from “mise en oeuvre” [implementation] to “champ d’application” [scope] of the Charter highlights the broad interpretation of its scope.[xvi] Thanks to this interpretation, its field of application coincides, apart from some exceptions[xvii], with that of the general principles of law and can now be summarized in a simple sentence: “The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter”.[xviii]

The second specificity of European Union law pertains to conditions relating to justiciability and to the consequent duties of national courts. European Union law is distinctive due to the very large share of standards with direct effect, i.e. those whose sole purpose is not to regulate relations between States and which require no additional act to produce effects on subjects of law. These direct effect standards naturally include European regulations[xix], but also, according to Court of Justice case law[xx], the clear, specific and unconditional provisions of European directives that have not been regularly transposed into domestic law within the allowable timeframe. As a result, the scope of direct effect European norms has broadened. Simultaneously, the range of categories of national legislation concerned against which this direct effect is called into play has widened. Indeed, the direct effect overrules any domestic legal standard be it a law, a regulatory act or even an individual decision. Interpreted in this way, the direct effect and the principle of primacy have had very concrete consequences on the duties of national courts, which are the primary guardians of the application of European Union law. It is they who, of their own motion, must refuse to apply any national provisions that are contrary to European Union law, even if adopted subsequently, as soon as the European standard becomes applicable i.e. without requesting or waiting for prior, effective “removal” of these provisions by the competent national authorities.[xxi] The same applies when national laws require a court to initiate an interlocutory procedure for the review of constitutionality. In France, where such a procedure exists, the Conseilconstitutionnel[xxii] and the Conseil d’Etat[xxiii], endorsed by the Melki and Abdeli judgement of the Court of Justice[xxiv], specified that ensuring the immediate effectiveness of European Union law is incumbent upon national courts and, if necessary, it is their duty to refer a question for a preliminary ruling to the Court of Justice without waiting for the outcome of an interlocutory procedure for the review of constitutionality.  A recent case judged by the Conseil d’Etat showed up the implications of this requirement in cases where the interpretation of European Union law determines the admissibility of an interlocutory review of constitutionality. In the Jacob[xxv] case, there were serious doubts about the compatibility of domestic law with a European directive. In the event of this incompatibility being ascertained, the disapplication of domestic law would have justified initiating a constitutionality review, on the grounds of the principle of equality, of the applicable rules for the operations under scrutiny, which were transborder or domestic. To clarify these serious doubts, the Conseil d’Etat referred a preliminary question to the Court of Justice and decided, as things stood, not to initiate a procedure for the review of constitutionality.[xxvi] Following the Melki and Abdeli decision very closely, the Conseil d’État hence decided first to enter into dialogue with the judges in Luxembourg before, if needed, entering into dialogue with its immediate neighbour, the French constitutional court. This example shows how direct dialogue between judges, if well-ordered, can effectively avoid any conflict of loyalty between European Union law and national, especially constitutional law.

The third specificity of European Union law that I would like to discuss involves its completeness and autonomy in relation to international law.  When the Union adheres to new international instruments, it cannot do so at the cost of impairing the principle of conferral of powers or the European institutional balance, in particular the Court of Justice’s exclusive competences. In two opinions issued in 1994[xxvii] and 2013[xxviii], the Court has constantly and firmly asserted this when plans to adhere to the European Convention on Human Rights were being examined.  Once an international convention has been incorporated into the legal order of the Union, any disputes relating to its application come under a strictly European system of scrutiny, including when the agreement is mixed and falls within the shared jurisdiction of the Member States and of the Union. In this regard, two Member States may not obtain a ruling from an international arbitration court for a dispute relating to the application of a mixed agreement without infringing the exclusive competence of the Court of Justice and the principle of loyal cooperation.[xxix] Beyond that, from a material standpoint, the autonomy of European Union law can be seen in the observance of fundamental rights. As shown in the “Kadi I” case, Union acts cannot fail to abide by those rights, including when such an act implements resolutions adopted by the Security Council of the United Nations.[xxx] In this way, the autonomy of the European Union’s legal order, which the Court of Justice described as “constitutional”, is protected. Its contours were subsequently detailed in the ZZ[xxxi] and Kadi II decisions[xxxii] in terms of rights of the defence, onus of proof and rules of conciliation between freedom and security.

The scope, direct effect and administrative and material autonomy of European Union law are essential characteristics that break away increasingly clearly from conventional international law.

2. The second series of transformations in international law relate to the extraterritorial application of national rights to transnational situations.

In contrast to the previous transformation, these characteristically extend the powers and sources of States. Under private international law, States traditionally have considerable leeway in defining the non-exclusive, concurrent prescriptive jurisdiction[xxxiii] they exercise.[xxxiv] However, State jurisdiction must be exercised in a reasonable manner, i.e. referrals cannot be made to State bodies if there is no or very little connection with its legal order.[xxxv]

a. The risks of misuse of this jurisdiction focus in particular on cases that have a three-tiered foreign element, referred to as “foreign cubed cases”.

In these cases, a foreign plaintiff (1) files a complaint against a foreign defendant (2) before a national court for deeds committed abroad (3).  Let me quote two concrete examples of the hyper-extraterritoriality of this three-tiered foreign element in the legislation of some countries. In the area of anti-corruption of government officials under US legislation, the Foreign Corrupt Practices Act (FCPA) passed in 1977, makes it possible to incriminate foreign entities that bribe civil servants or government officials abroad. In December 2014, under a plea agreement, the company Alstom agreed to plead guilty and pay a $772 million fine for violating this law for the purpose of winning a contract in Indonesia. Another example is in the area of economic embargoes. The Trade with the Enemy Act (TWEA) that was adopted during the First World War and the Foreign Corrupt Practices Act (FCPA) passed in 1977 give authority to the President of the United States to order economic sanctions against countries or entities with which the United States is at war or that endanger American national security, foreign policy or its economy. In June 2014, the bank BNP Paribas agreed to pay a record fine of $8.9 million for having provided banking services to Cuban, Iranian and Sudanese entities that were subject to embargo measures. In this case, the territorial connection with the lex fori was grounded in the fact that transactions were performed via American financial institutions – interbank transfers in dollars went through a clearing house located on US territory.[xxxvi]  These examples undeniably show that there is a strong trend towards extraterritoriality in US law, which has further developed via intergovernmental agreements on taxation since the adoption of the Foreign Account Tax Compliance Act (FATCA) passed in 2010.[xxxvii] But these agreements, whether they are bilateral[xxxviii] or multilateral[xxxix], also include reciprocal obligations for all parties including the United States of America. This trend has also given rise to some opportune European Directives[xl] on the matter of automatic, compulsory exchanges of information in the area of taxation.

b. Nonetheless, allow me to mitigate my statements by emphasizing that these extra-territorial expansions are neither limitless nor unambiguous.

On the one hand, the extraterritorial element of national legislations has declined somewhat. In its famous Kiobel decision of 17 April 2013, the Supreme Court of the United States recognised that it lacked jurisdiction to examine the claims presented by Nigerian citizens who on the basis of the Alien Tort Statute (ATS) accused a Dutch company of aiding and abetting serious violations of human rights. In this decision, the Court argued that there is a principle of presumption against the extraterritoriality of US federal laws, unless there is a clear indication from Congress to the contrary. This opinion is consistent with the Supreme Court’s decision of 24 June 2010 Morrison versus National Australia Bank Ltd that set aside the application of the Securities Exchange Act to rule in an action brought by Australian investors relating to purchases of an Australian company’s shares conducted on an Australian market.[xli] Nonetheless, the mechanism of presumption put forward in 2013 does not preclude the possibility of re-examining the question of “reasonable limits”[xlii] in the exercise of prescriptive jurisdiction of States and its corollary, the question of the emergence of international rules of courtesy (“comity”)[xliii]. One must be careful not to minimise the risk of “forum shopping” whereby, for instance, someone who has committed serious violations of fundamental rights might benefit from complete jurisdictional immunity.

On the other hand, it is noteworthy that the European Union itself, although it does not have the political strength and economic power of the United States, also issues norms that are extraterritorial in scope, in particular in the area of competition and, more recently, the area of digital technologies with the Google Spain[xliv] and Schrems[xlv] rulings. Additionally, the European Union has also responded to foreign extraterritorial legislation by adopting “blocking statutes” as permitted by EC Regulation No. 2271/96[xlvi] following the adoption of the Helms-Burton and Amato-Kennedy laws. Furthermore, it can impose heavy fines in the event of failure to comply with European Union law by non-European corporations that are established within its territory, as recently demonstrated by the record fine of €13 billion imposed by the Commission on Apple for failing to observe European rules applicable to state aids.[xlvii] The Court of Justice of the European Union will shortly be examining in this case.

Thus, whether in the case of the sources or the founding principles of international law, both public and private, sweeping changes are currently in process – some of which, in particular within the European Union, are drawing the contours of a new model. Without claiming to see into the future, some methodological milestones can arguably be identified, and some climbing ropes prepared and used so as to better regulate the normative interactions between national and European legal orders and thereby avert and anticipate certain risks of the machinery creaking or even jamming.

III. In this perspective, the community of legal experts and judges must work towards a better regulation of legal pluralism, in particular constitutional pluralism, which is our frame of reference.

A. Such regulation needs to be carefully developed in consultation with the relevant international actors so as to better confront crises.

The globalisation of law destabilises, without entirely invalidating, the conventional conception of the hierarchy of norms and of relations between legal orders. The strictly pyramid-shaped model has been replaced by a network[xlviii] of norms that, between one system and the other, mirror and respond to one other. At the junction between internal and international orders there is a zone of continuous exchange and perpetual influences. The magnitude of the normative interactions between legal orders today calls for more intensive action in three areas: coordination of jurisdiction, standardisation of rights and integration of legal orders.

1. Firstly, the principle of subsidiarity would appear to be the chief instrument for better coordination of jurisdiction.

a. In the European Convention on Human Rights system, this principle rests in particular on the recognition of national margins of appreciation.

Indeed States are left a margin of appreciation “by reason of their direct and continuous contact with the vital forces of their countries[xlix], when attending to the application of rights and freedoms guaranteed by the Convention. The magnitude of these margins is not always identical or unlimited; it varies depending on the nature of the interests involved and the degree of consensus between the legislations of the 47 States of the Council of Europe. The more the protected interests involve “a key aspect of individuals’ identity” such as filiation[l], for instance, or “a strong interest for a democratic society” such as freedom of expression[li], the more restricted the margin. In contrast, these margins are broader when what is at stake is a choice of society, “matters of general policy (…) [relating in particular to] the relations between the state and religions[lii] or sensitive issues of morality or bioethics.[liii] In such cases, the Court of Strasbourg has a duty to exercise a degree of restraint in its review of Convention compliance, since such review will lead it to assess a balance that has been struck by means of a democratic process.[liv] National margins of appreciation are also broader when there is no “common ground[lv], nor “consensus within the member States of the Council of Europe.”[lvi] For the principle of subsidiarity to fully exert its regulatory virtues, it must lead national authorities to systematically, thoroughly and if possible preventively analyse the compatibility of internal law with European guarantees. But this principle also demands that the European Court of Human Rights adopts stable, consistent positions, makes clear what this common ground is—i.e. identifies the matters on which there is a consensus in Europe— and conducts a reasonable evaluation of national margins of appreciation, so that the authorities of the States parties can use them confidently without any need for self-restraint.

b. Within the European Union, the principle of subsidiarity is a principle that regulates the competences shared between the member states and the union.

The principle of subsidiarity is an autonomous concept.[lvii] In contrast to federal states, it is not a general principle of state organisation and it is not based on a functional hierarchy between the supreme federal authority and the subordinate state subdivisions. Furthermore, unlike the system of the European Convention of Human Rights, the principle of subsidiarity regulates the exercise of supranational decision-making powers within the Union, which has its own legislative and executive institutions and operates in far broader areas than merely fundamental rights. That means in particular that the duties of a CJEU judge in Luxembourg are not strictly analogous to those of a ECHR judge in Strasbourg. In the first case, the court attends in abstracto to the uniform interpretation of the law of the Union through a mechanism of preliminary ruling, a task that accounts for two thirds of its activity. The second, which is referred to after all internal remedies have been exhausted, rules in concreto on particular disputes that call into question the rights protected by the Convention. Naturally, the interpretation by the Court of Justice of the law of the Union is not abstract and disembodied. It predetermines in part the outcome of the disputes to which it applies. Similarly, the settlement of a topical case by the European Human Rights Court is the opportunity to establish general principles of interpretation and define jurisprudential guidelines. Hence, there is a true kinship between these two Courts but each retains its own identity, which is partly reflected in the specificity of the principle of subsidiarity in the Union. In any case, this principle must effectively be implemented, which implies both reasonably receptive national courts, and also some restraint in the exercise of the competences of the Union. The national constitutional powers must be observed and preserved and to that effect a careful and genuine dialogue must be conducted between the Court of Justice of the European Union and national supreme courts.

2.  Secondly, we must continue to call on a range of means to standardize fundamental rights.

a. The first is the technique of compliant interpretation.

National courts take care that internal rules are interpreted in compliance with the international commitments undertaken by their country and, in particular, the rules and principles of the law of the European Union[lviii] and the European Convention for Human Rights. In France, to quote an example already mentioned, the Conseil constitutionnel[lix] and the Conseil d’Etat[lx] assessed the national legislation relating to the implementation of the interlocutory procedure for the review of constitutionality in accordance with the requirements of European Union law, as later reaffirmed in the Melki and Abdeli[lxi] decision of the Court of Justice of the European Union.

b. Standardisation of rights is also achieved through the recognition of the equivalence of protections.

National courts commonly use this technique. Indeed, it is not desirable for them to conduct the review of compliance with a fundamental right in isolation under their own legal order if this right is recognized and effectively protected under another relevant legal order. Once again I will speak from my own experience. When the constitutionality of a regulatory act implementing a Directive is challenged before a French administrative court, the latter begins by ascertaining whether the law of the Union recognises the rule or constitutional principle called upon and guarantees its effectiveness. If that is the case, it rules on the question of constitutionality brought before it in the light of European Union law, after having, if needed, referred to the Court of Justice for a preliminary ruling. If not, when the administrative court does not ascertain that protections are equivalent, it directly examines the compliance of the transformation act, and therefore of the Directive, with the Constitution. As a result, in the area of secondary legislation of the Union, direct, independent review of constitutionality is only exercised when the protections afforded by the law of the Union and those afforded by national constitutional law are not equivalent.

International judges also resort to these standardisation techniques. To uncover general principles of law, the judges in Luxembourg refer to national constitutional traditions and to international instruments that Member States[lxii] have adhered to, in particular to the European Convention on Human Rights.[lxiii] This is now explicitly provided for in article 4 §2 of TUE. Furthermore, the Union’s Charter of Fundamental Rights and the European Convention on Human Rights both include a “matching clause” in their respective article 53, to the benefit of the greater protection.[lxiv] Pursuant to this clause, the Court of Justice takes into consideration the standards of the European Convention on Human Rights when applying and interpreting the Charter.[lxv] By way of example, last year, articles 6[lxvi], 7[lxvii] and 49[lxviii] of the Charter were explicitly interpreted with reference to respectively articles 5, 8 and 7 of the Convention and the relevant Strasbourg case law. The same applies to article 17 of the Charter in respect of article 1 of the Convention’s first protocol.[lxix]

The Strasbourg ECHR judges share this concern for standardisation and have developed their own tools. Thus, they consider that a State that applies the law of the Union is presumed to abide by the requirements of the Convention, unless it has been demonstrated that there is a “manifest deficiency”.[lxx] This mechanism of presumption of equivalence does not however operate automatically. The European Court of Human Rights indeed readily sets it aside, when Member States have some leeway in applying the law of the Union. One instance of this is the transfer measures of asylum seekers taken under the “Dublin” scheme as a result of the “sovereignty clause” it contains.[lxxi] When the presumed equivalence is lacking, the judges strive to use similar but not always identical criteria to prevent an asylum seeker from being transferred to a Member State.[lxxii] In addition, when the equivalence of the protections is applicable in principle, the Court of Strasbourg readily rebuts the presumption of equivalence if the supervisory mechanisms provided for under European Union law have not been fully deployed. In such a case, the Court of Strasbourg considers that “the interest of international cooperation would be outweighed by the Convention’s role as a “constitutional instrument of European public order in the field of human rights”. [lxxiii]As demonstrated by the Michaudv. France case, such a rebuttal of the presumption of equivalence is not purely hypothetical, when a national court refuses to implement the preliminary ruling procedure set out in article 267 TFUE.[lxxiv] In a recent case, Avotins v. Latvia, the Court of Strasbourg however stated that the lack of a referral for a preliminary ruling cannot stand in the way of the presumption of equivalence if the national court can directly process the issue pertaining to the interpretation of European Union law.[lxxv] Nonetheless, the Court is cautious: taking the opposite course to that of the Court of Justice’s Opinion 2/13, it underlines that “Limiting to some exceptional cases” the review by a Member State of compliance with fundamental rights by another Member State when they apply European Union law could, in some concrete situations, run counter to the mechanism of equivalent protections.[lxxvi]

c. Finally, harmonisation of rights can also be achieved through spontaneous, forward-looking practices of convergence.

When national courts rule on a new question of principle, even under domestic law alone, they look not only to their own legislation and case law, but also to the case law of the European Courts. Allow me once again to share my own experience. When examining a new question, the answer to which will produce case law, the judges of the Conseil d’Etat do not only ask: how do we view this on the basis of our case law? They also ask: how do or how might the other French supreme courts, and specifically the Conseil constitutionnel, view this? They apply the same test to the Court of Justice of the European Union and the European Court of Human Rights. They also gather information on how other supreme courts in European countries and in North America view the issues at dispute. Thus the analysis made by national judges of these legal questions takes into account the viewpoint of international judges and of other national judges. The aim is not to mechanically align their own assessment with the majority view, or the position of any given supreme court, but rather to be enlightened, informed and as relevant as possible. Confronted with comparable situations as a result of the expansion of world trade and the standardisation of living conditions, States have improved, or try to improve their legislative and judicial function in the light of solutions devised by their neighbours. Let me give a recent example. In France, the enrichment of the ne bis in idem principle was the outcome of a convergence between European and constitutional case law: in the wake of the Court of Strasbourg Zolotouchine[lxxvii] and Grande Stevens[lxxviii] decisions and the Åkerberg Fransson[lxxix] ruling of the Court of Luxembourg, the Conseil constitutionnel redefined the conditions for allowing double penalties—both criminal and administrative—to be imposed in financial,[lxxx] then tax[lxxxi] and accounting[lxxxii] areas, making them more restrictive.

3. In the third place, the entry into force of the Charter of Fundamental Rights has reinforced the integration goal of the European Union.

The scope of the Charter, as interpreted by the Court of Justice[lxxxiii], coincides, save some exceptions[lxxxiv], with that of the general principles of Union law. In so doing, it is confronted, sometimes brutally, with the rights protected by other treaties, and by the constitutional guarantees of the Member States. In these circumstances, the risks of divergence and “disharmony” between European Union law and the European Convention on Human Rights have escalated – with the Court of Justice readily adopting an “autonomous” conception of the principles protected by those treaties. The ÅkerbergFransson ruling remarkably illustrates this: while the Courts of Luxembourg and Strasbourg use the same criteria to assess the criminal character of a tax penalty, the first, in contrast with the second[lxxxv], makes the application of the principle of ne bis in idem, as set out in article 50 of the Charter, conditional upon the remaining applicable penalties being “effective, proportionate and dissuasive.”[lxxxvi] In addition, a stringent framework for the combined application of the law of the Union and of the Member States’ constitutional guarantees has been instituted by the Court of Justice’s Melloni decision.[lxxxvii] Thus, when an act in European Union law calls for the national implementing measures, the States remain free to apply their national standards of protection of fundamental rights, provided they comply with two conditions simultaneously: “the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised.”[lxxxviii] If the latter condition is not fulfilled, the national standard, regardless of whether it is more protective or constitutional, must be disapplied. Advocating an autonomous European legal order could produce new frictions in Member States and within the Council of Europe at a time when the prospect of the Union adhering to the European Convention on Human Rights is becoming more remote, not to say implausible, following the opinion issued by the Court of Justice in December 2014.[lxxxix]

To better regulate legal pluralism in Europe requires three fundamental operations: first, a working, balanced coordination of powers; second, an ongoing, realistic standardisation of fundamental rights; finally, the concerted and flexible integration of legal orders. These operations will contribute to shaping a more robust and resilient framework for dealing with contemporary crises. It is my conviction that the legal community has a major responsibility to shoulder at a time when new tensions are emerging.

B. Today these tensions centre on constitutional identities and national sovereignties.

An angelical, completely irenic conception of the relations between legal orders would be out of place. It is only natural for areas of friction to exist but there is also a significant risk of divergence and disagreement about the rules that should regulate these orders. The current “crisis” in international law is a crisis that derives from the foundations of international law rooted in the state and more especially the principles of constitutional supremacy and national sovereignty.

1. In the field of fundamental rights, the risks of conflict between primacies have grown.

The law of the Union and national constitutions enshrine a duty of mutual respect. In Union law, this duty arises in particular from articles 4 and 6 of the TEU and from article 53 of the Charter of Fundamental Rights. Furthermore, most Member States set aside a special place for European Union law in their constitutions. In France, title XV of the Constitution is devoted entirely to the European Union. Some very specific and binding requirements have been inferred from article 88-1 in the area of transposing European Directives into national law. Pursuant to article 88-2, it is the duty of lawmakers to set out the rules pertaining to the European Arrest Warrant in compliance with acts of the Union on this subject. Nonetheless, cases of direct confrontation between European Union law and national constitutions are frequent and liable to remain so in the future, even though to this date they have not led to systemic crises. It is essential today to put the instruments for preserving national constitutional identities to good use. With its pioneering decisions, Solange I and II[xc], the German Federal Constitutional Court has devised instruments of this type that ensure that the constitutional kernel is preserved, including the principle of the dignity of human beings and other fundamental rights, as well as the founding principles of the German state, which cannot be impaired by the law of the Union nor, for that matter, amended under domestic law pursuant to the “eternity clause”.[xci] Many States now exercise this control in ways that are inherent to their legal traditions. In France, an act that transposes a European directive into internal law is in principle covered by jurisdictional immunity before the Constitution and this immunity is lifted only if the legislation in question infringes a rule or principle inherent to the “constitutional identity of France[xcii] – according to the broad and malleable expression used by the Conseil constitutionnel. A situation of this type has never so far occurred and could only occur if a strictly national principle or a strictly French conception of a shared principle is disregarded.

The constitutional identity review relates to a hypothetical and “extreme[xciii] situation to use the words of advocate-general Villalon in the Gauweiler case, when there is a major discrepancy between national constitutional guarantees and European guarantees. In our view, this review has a powerful preventive and deterrent effect. Resorting to it becomes more and more hypothetical as the equivalence of protections grows and fundamental rights become standardized across the Union. National supreme courts nonetheless remain on guard. In a decision dated 15 December 2015 concerning European arrest warrants, the German Federal Constitutional Court, while reaffirming the principles of openness to international law (Völkerrechtsfreundlichkeit) and to European law (Europarechtsfreundlichkeit), emphasized that the constitutional identity review may entail, in some “exceptional cases” and under very “stringent” conditions, to the disapplication of Union acts[xciv], in this instance a European arrest warrant. The Court of Justice echoed this position and took it into consideration in a Grand Chamber judgement—Aranyosi and Caldararu—dated 5 April 2016.[xcv] Similarly the British supreme court, in the Pham decision of 25 March 2015,[xcvi] expressed concern about the excessively broad conception of the powers of the Union in matters relating to conferring and revoking Member State nationality, which is an area of competence that lies at the heart of “the identity of the nation State” and pertains to the sovereignty of the British Parliament. In a previous decision dated 22 January 2014, HS2[xcvii], concerning the evaluation of the environmental effects of a plan to build a high speed railway line, the British supreme court had already stepped back somewhat from a broad interpretation of the secondary legislation of the Union that could lead to the interference of national and European judges in the British Parliament’s decision-making powers.

What we see are signs of concern coming from various national supreme courts. In this context, new responsibilities rest on the shoulders of national and European judges. It is the task of national judges to determine both the content and the limits of the constitutional kernels. A definition that is too broad or too vague and general would directly threaten the unity of European Union law. As for European judges, they must spell out the scope and limits of European Union law and the magnitude of Member States’ margins of appreciation.[xcviii] Within those margins, the national review of constitutionality should apply in accordance with the Melloni[xcix]criteria, as clarified by the previously mentioned Aranyosi and Caldararu[c] judgement. This review may lead to a situation where an internal provision that lies within the scope of the national margin of appreciation is abrogated due to its unconstitutionality notwithstanding that it indirectly contributes to the implementation of European Union law. Clearly, this type of situation requires a genuine and constructive dialogue between the supreme national courts and the Court of Justice. This is what happened for instance in the Jeremy F.[ci] case, when for the first time the French Conseil Constitutionnel made a referral for a preliminary ruling to the Court of Justice, prior to annulling a number of provisions in the code of criminal procedure implemented to enact European arrest warrants that were subject to a national margin of discretion. More than ever before, the referral for preliminary ruling mechanism is the keystone of the Union’s judicial system.

Today, it enables a face-to-face constitutional dialogue to be set up between judges. Because this dialogue touches on the fundamental rights of persons, i.e., the kernel of national identities and the foundations of the Union, it creates new responsibilities for all judges: a greater need for cooperation, openness and goodwill as well as more realism and flexibility. These should enable us to accompany the current developments in fundamental rights that are yet to be completed, while observing the foundational balances that need to be maintained between national traditions and the unity, autonomy and effectiveness of European Union law. Today, this constitutional dialogue no longer concerns only the fundamental rights of persons; it is beginning to develop in the field of the protection of sovereign powers of the States and is liable to create new risks of turbulence.

2. Within the Union, the redistribution of sovereign powers increasingly justifies the shared implementation of sovereignty.

European integration has undoubtedly deepened changes in state sovereignty, which appears less as an absolute and indivisible power than as a purposeful power capable of exerting a self-limiting influence on the State in favour of supra-state entities. While European integration accentuates this phenomenon, it also clearly shows up the advantages deriving from shared sovereignty. A simple fictional scenario in the area of monetary policy for instance easily demonstrates how, in the absence of any transfer to the Union’s institutions that are subject to the review of the Court of Justice, the national exercise of this review would be weakened. This does not mean that the State has relinquished all of its sovereign powers. However broad the scope of the Union’s duties, it acts within the limits of the framework set up by the Treaties and does not possess the compétence de sa compétence [jurisdiction over its jurisdiction] – which is the distinctive mark of state sovereignty.  The principle of conferral of powers guarantees control over what transfers are allowed. But it must not be an inhibitive straitjacket that deprives the Union of its legitimate margin for intervention. In the area of monetary policy, the European Central Bank was able to adopt, in compliance with the European treaties and specifically articles 119 and 123 TFEU, an unprecedented scheme for OMTs (outright monetary transactions) that allows for the purchase of the public debt of some Eurozone Member States on the secondary market, without any pre-determined quantitative limitation but under very specific conditions. As noted by the Court of Justice in the Gauweiler decision[cii] in answer to the first preliminary question raised by the German Federal Constitutional Court[ciii], the OMT scheme does indeed fall within the scope of monetary policy and therefore the competence of the European Central Bank. It cannot be equated with an economic policy measure simply on the basis that it is liable to have indirect effects on the stability of the Eurozone or encourage the States concerned to better accommodate the macroeconomic adjustment programmes of the European Stability Mechanism (ESM). The Court therefore reaffirmed the purposive approach of its Pringle decision.[civ]  It furthermore ruled that the OMT programme was sufficiently delimited ratione personae, materiae and temporis, in spite of making no provision for an ex ante quantitative limit. The Court underlined in particular that only those Member States that were subject to a macroeconomic adjustment programme and had regained access to the bond market could avail themselves of the OMT scheme and that the latter would focus on government bonds with a maturity of less than three years. Finally, with regard to compliance with article 123 of the TFEU that prohibits monetary financing of public debt, the guarantees announced by the Governing Council avert, according to the Court of Justice, a situation whereby the implementation of the OMT scheme would in practice have an effect equivalent to the direct acquisition of sovereign bonds from the Member States. In its decision dated 21 June 2016[cv], at the cost of some unmistakeable efforts and reservations, the German Federal Constitutional Court did not call into question the overall meaning of the Court of Justice’s decision. However, it constrained it by giving a restrictive interpretation of the conditions for implementing the OMT scheme. Furthermore, the German Supreme Court does not relinquish its power to review ultra vires acts of the Union. But even if it is constitutional, for a national court to conduct this review seems impractical as the natural and ultimate judge of the observance of European treaties and in particular the exclusive powers of the Union is the Court of Justice of the European Union in Luxembourg. An ultra vires review conducted in all areas by a national court on the basis of domestic principles such as popular sovereignty, suffrage and Parliament’s right to vote the budget, is liable to generate new and serious tensions in the Union’s jurisdictional system and, more generally, to create confusion as to the role of national courts vis-à-vis the political authorities of the Member States and of the Union. It should hence be exercised with the greatest care. In any case, in the case of the OMTs, the constitutional dialogue was able to remain careful, realistic and, in fine, fruitful.

The solutions to contemporary crises will be primarily political, but law can make a contribution and the legal community has a role to play in this respect. I would like to conclude by formulating three priorities. Firstly, by recalling the benefits of international cooperation and of European integration, in particular in fighting transnational threats to the security of the Union and its neighbouring States. In a world that will inevitably be more open, the organisation of the international society must be enhanced and supported by a specially developed didactic approach. States and peoples are the primary victims of discourses and strategies founded on isolation and autarchy. Secondly, a firm but balanced stance must be taken and defended on the question of fundamental rights. It is worrying to see that some of these are now manifestly shattered at the periphery of Europe, and now within Europe itself. I am deeply concerned and I condemn this situation. There can be no question of marking a “pause” in the progress of fundamental rights, even though we must be ever more attentive to the existence of a consensus on sensitive issues. Finally, in the contemporary framework of legal pluralism, national identities and sovereignties must be re-linked with the European enterprise. In the short term, the responsibility of the legal community, in particular of judges, is to bring about convergence between the national and the international without annihilating one or the other, nor merging them. That is no doubt the most urgent and important task to perform if we want law to usefully contribute to solving current crises. It is not a matter of reining in national identities and their constitutional component — that would be tantamount to distorting the realities on which the European enterprise is anchored. But the dynamic that must be set in motion cannot dispense with the reinforcement of European integration and of the guarantees of the rule of law – on penalty of abandoning the ideal pursued by the European enterprise.

 

[i]  Written in collaboration with Stéphane Eustache, administrative judge.

[ii] P. Ricoeur, La crise : un phénomène spécifiquement moderne ?, Revue de théologie et de philosophie, 120 (1988), p. 1-19.

[iii] M. Revault d’Allonnes, Crise et modernité, Hannah Arendt.net, Journal for Political Thinking, 2013.

[iv]You trust in the present order of society without thinking that this order is subject to inevitable revolutions and it is impossible for you to foresee or prevent the one which may affect your children. The noble become commoners, the rich become poor, the monarch becomes subject. Are the blows of fate so rare that you can count on being exempted from them? We are approaching a state of crisis and the age of revolutions. Who can answer for what will become of you then?” Rousseau, Jean-Jacques, Emile, or on Education, Book III, 1762 (Basic Books, 1979, p. 158)

[v] http://piketty.blog.lemonde.fr/2016/01/08/2007-2015-une-si-longue-recession/

[vi] http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_statistics

[vii] http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_statistics

[viii] R. Mundell, A Theory of Optimum Currency Areas, American Economic Review, vol. 51, 1961, p. 715-725.

[ix] J.-P. Matière, “Fondements et enseignements de la crise de la zone euro, Revue de l’Union européenne, 2015, p. 489 ; M. Lelart, “La zone euro et la crise financière international, Revue de l’Union européenne, 2014, p. 471.

[x] Article 2 of the Paris Agreement of 12 December 2015.

[xi] CJEU, Full Court, 27 November 2012, Thomas Pringle, C-371/12.

[xii] CJEU, Grand Chamber, 16 June 2015, Peter Gauweiler, C-62/14.

[xiii] See the seminal works of A. Koyré (From the closed world to the infinite universe, Johns Hopkins Press, 1957 ; Du monde clos l’univers infini, éd. Gallimard, coll Tel, 2003), and the works of T. Kuhn (The structure of Scientific Revolutions, University of Chicago Press, 1962 ; La structure des révolutions scientifiques, éd. Flammarion, coll. Champs, 2008).

[xiv] Since the Rome Treaty (25 March 1957) that instituted the European Atomic Energy Community (EAEC) and the European Economic Community (EEC), and provided for a customs union —which was instituted on July 1 1968—and the implementation of common policies, e.g. in agriculture; the Single European Act (17 and 28 February 1986) that sets the date of completion of the internal market at 1st January 1993, provides for the establishment of a single market and consequently the abolition of any regulatory or tax restriction to freedoms of movement; the Maastricht Treaty (7 February 1992) that maintained European Community as a legal entity but removed its ‘economic” epithet (the EC disappeared in legal terms with the Lisbon Treaty), erected the European Union on three “pillars”—the Community pillar (former EC, ECSC, EAEC), , the CFSP pillar and the “justice and internal affairs’ pillar, which establishes European citizenship and provides for the creation on 1st  January 1999 of a single currency; the Treaty of Amsterdam (2nd October 1997) that incorporates new matters into the scope of the community in the areas of police, migration, justice and employment and creates the “area of freedom, security and justice” by integrating the Schengen agreement into EU law; the Nice Treaty (26 February 2001) which modifies the decision-making and institutional system of the EU and adopts the EU Charter of Fundamental Rights; finally, the Lisbon Treaty (13 December 2007) and, more recently, the treaty that establishes the European Stability Mechanism (16 and 17 December 2010) and the Treaty on stability, coordination and governance in the EU (1 and 2 March 2012).

[xv] OJ 26 February 2013, Akerberg Fransson, C-617/10, § 21.

[xvi] In French, article 51, titled “champ d’application”, indeed sets out that “Les dispositions de la présente Charte s’adressent (…) aux Etats membres uniquement lorsqu’ils mettent en oeuvre le droit de l’Union”. In English too, there is a shift: article 51, titled “Field of Application”” sets out that “The provisions of this Charter are addressed to the Member States (…) only when they are implementing Union law” and the Court of Justice underlines that the Charter is to be applied “within the scope of European Law” (§ 21). In German, article 51, titled “Anwendungs bereich”, sets out that “Diese Charta gilt (…) für dieMitgliedstaaten ausschließlich bei der Durchführung des Rechts der Union” and the Court of Justice stresses that the Charter must be applied “in den Geltungsbereich des Unionsrechts” (§21).

[xvii] As ruled by the Court of Justice of the European Union, the field of application of Article 41 of the Charter titled “Right to good administration” stands alone and is more limited than that of the Charter’s other articles; Article 41 is addressed not to the Member States but solely to the institutions, bodies, offices and agencies of the European Union OJEU 5 November 2014, Sophie Mukarubega, C-166/13, § 44-45.

[xviii] CJEU 26 February 2013, Ǻkerberg Fransson, C-617/10, § 21. In English: “The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter.” In German: “Die Anwendbarkeit des Unionsrechts umfasst die Anwendbarkeit der durch die Charta garantierten Grundrechte.”

[xix] European regulations have a vertical and a horizontal direct effect (full direct effect), see: CJEU 14 December 1971, Politi, 43-71.

[xx] CJEU 4 December 1975, Yvonne van Duyn v. Home Office, 41-74 and CJEU 5 April 1979, Public Prosecutor vs Tullio Ratti, C-148/78.

[xxi] CJEU 9 March 1978, Amministrazione delle Finanze dello Stato v. Simmenthal SPA, 106/77, § 24 and 26.

[xxii] CC No. 2010-605 DC dated 12 May 2010, Loi relative à l'ouverture à la concurrence et à la régulation du secteur des jeux d'argent et de hasard en ligne. [Bill on the opening to competition and regulation of online gambling and games of chance]

[xxiii] CE 14 May 2010, Rujovic, No. 312305.

[xxiv] CJEU 22 June 2010, Melki and Abdeli, C-188/10.

[xxv] CE, Ass. 31 May 2016, Jacob, No. 393881.

[xxvi] CE 31 May 2016, Jacob, No. 393881.

[xxvii] CJEU 28 March 1996, Opinion 2/94.

[xxviii] CJEU, Full Court, 18 December 2014,  2/13 ; in particular, pts. 155 to 159.

[xxix] CJEU, Grand Chamber, 30 May 2006, Commission v. Ireland (MOX), C-459/03.

[xxx] CJEU, Grand Chamber, 3 September 2008, Kadi and AL Barakaat International Fondation v. Council of the European Union and Commission of the European Communities, C-402/05.

[xxxi] CJEU 4 June 2013, ZZ v. Secretary of State for the Home Department, C-300/11.

[xxxii] CJEU, Grand Chamber, 18 July 2013, EuropeanCommission et al. v. Kadi, C-584/10.

[xxxiii]In this respect prescriptive jurisdiction is unlike enforcement jurisdiction, which is subject to the absolute principle of territoriality.

[xxxiv] PCIJ 7 Sept. 1927, publication of PCIJ, Series A, No.10.

[xxxv] On this point see: D. Bureau and H. Muir Watt, Droit international privé, Volume I « partie générale », (PUF, coll. Thémis droit, 2nd ed., 2010, Paris, pp. 76 and 80.

[xxxvi] On this case see: Y. Quintin, Aux frontières du droit : les embargos américains et l’affaire BNP Paribas, Revue de droit bancaire et financier, No. 5, Sept. 2014, study 21.

[xxxvii] On this point see: P. Athanassiou, M. Prokop and A. Theodosopoulou, Effets extraterritoriaux du droit américain sur les institutions financières non-américaines, une vue d’ensemble, Revue de droit bancaire et financier, No. 5, Sept. 2014, study 20.

[xxxviii] Agreement entered into in Paris on 14 November 2013 between the Government of the French Republic and the Government of the United States of America for the purpose of improving international tax compliance and to implement FATCA, published by decree No. 2015-1 dated 2 January 2015.

[xxxix] Multilateral agreement signed in Berlin on 29 October 2014 between the competent authorities on automatic exchange of information relating to financial accounts.

[xl] Directive 2011/16/EU of the Council dated 15 February 2011 on administrative cooperation in the field of taxation, repealing Directive 77/99/EC.

[xli] On this point see: M. Dubertret, Affaire Morrison v. National Australia Bank Ltd : l’espoir d’un nouvel âge ? , Revue de droit bancaire et financier, No. 4, July 2010, Study 17.

[xlii] H. Muir Watt, L’Alien Tort Statute devant la Cour suprême des Etats-Unis, territorialité, diplomatie judiciaire ou économie politique?, Revue critique de droit international privé, 2013, p. 595.

[xliii] See on this point: the dissenting opinion of Judge Breyer in the Kiobel case: although he endorses the same solution as the majority opinion, Judge Breyer bases his position not on the presumption against extraterritoriality of the ATS but on the principles and practices of international relations that tend to restrict the extraterritorial application of the lex fori to the most serious crimes or to the most significant infringements of national interests. See for an analysis of this position: N. Maziau, L’arrêt Kiobel : reconnaissance différée d’une responsabilité des sociétés multinationales pour les crimes contre les droits de l’Homme, Recueil Dalloz, 2013, p. 1316.

[xliv] CJEU, Grand Chamber, 13 May 2014, Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos (AEPD), Mario Costeja González, C-131/12.

[xlv] CJEU, Grand Chamber, 6 October 2015, Maximillian Schrems v. Data Protection Commissioner, C-362/14.

[xlvi]Regulation (EC) No. 2271/96 of the Council dated 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom.

[xlvii] See the European Commission’s press release: http://europa.eu/rapid/press-release_IP-16-2923_fr.htm

[xlviii] F. Ost and M. Van de Kerchove, De la pyramide au réseau. Pour une dialectique du droit, (Presses des facultés universitaires de Saint Louis, 2002).

[xlix] ECHR, Full court, 7 December 1976,  Handyside v.United Kingdom, No. 5493/72, § 48.

[l] ECHR 26 June 2014, Mennesson v. France, No. 65192/11, § 80.

[li] ECHR, Grand Chamber, 22 April 2013, Animal Defenders v. United Kingdom, No. 48876/08, §102.

[lii] See on the topic of displaying crucifixes in classrooms of state schools: ECHR 18 March 2011, Grand Chamber, Lautsi v. Italy, No. 30814/06; on the topic of wearing the Islamic veil in higher education establishments: ECHR 10 November 2005, Grand Chamber, Leyla Sahin v. Turkey, No. 447774/98, §109-110.

[liii] See on the topic of legislation on the right to abortion: ECHR, Grand Chamber, 16 December 2010, A., B., C. v. Ireland, No. 25579/05; on the topic of the conditions for resorting to in vitro fertilisation: ECHR, Grand Chamber, 3 November 2011, S.H. v. Austria, No. 57813/00; on the topic of resorting to assisted suicide: ECHR 20 January 2011, Haas v. Switzerland, No. 31322/07.

[liv] ECHR, Grand Chamber, 1st July 2014, SAS v. France, No. 43835/11, § 154.

[lv] ECHR 28 November 1984, Rasmussen v. Danemark, No. 8777/79, § 40.

[lvi] ECHR 26 June 2014, Mennesson v. France, No. 65192/11, § 77.

[lvii] As set out in article 5 of the TEU, pursuant to this principle, “in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather (…) be better achieved at Union level.”

[lviii] See e.g., on the topic of interpretation of legislation consistent with Council Directive 2003/109/EC dated 25 November 2003: CE 16 December 2013, Nouri-Shakeri, No. 366722; or with Council Directive 90/435/EEC dated 23 July 1990: CE 15 December 2014, SA Technicolor, No. 380942.

[lix] CC No. 2010-605 DC dated 12 May 2010, Loi relative à l’ouverture à la concurrence et à la régulation du secteur des jeux d’argent et de hasard en ligne [Bill on the opening to competition and regulation of online gambling and games of chance] cons. 14 and 15.

[lx] CE 14 May 2010, Rujovic, No. 312305.

[lxi] CJEU, Grand Chamber, 22 June 2010, Melki and Abdeli, C-188/10 et C-189/10, § 50.

[lxii] CJEC 14 May 1974, Nold, 4-73, §13.

[lxiii] CJEC 28 October 1975, Rutili, 36-75, § 32.

[lxiv] See art. 53 of the European Convention on Human Rights: “Nothing in this  Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party”; art. 53 of the Charter of Fundamental Rights of the European Union: “Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States' constitutions.” Additionally, see art. 52 § 3 of the Charter: “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.” 

[lxv] See on this point: R. Tinière, Le rôle de la Charte dans la jurisprudence de la Cour de justice de l’Union européenne depuis l’avis 2/13 : vers un modus vivendi avec le droit de la Convention ?, Revue de l’Union européenne, 2016, p. 400.

[lxvi] CJEU, Grand Chamber, 16 July 2015, Lanigan, C-237/15, pt 57 (in the case of keeping a person who is the subject of a European arrest warrant in detention).

[lxvii] CJEU 17 December 2015, WebMindLicenses Kft, C-419/17, pts. 70 to 72 (ont the subject of obtaining evidence in the context of criminal proceedings); CJEU 18 June 2015, Deutsche Bahn, C-583/13, pts 19 to 23 (on the topic of the inviolability of the home).

[lxviii] CJEU, Grand Chamber, 8 September 2015, Tarico, C-105/14, pt 57 (on the topic of the extension of the limitation period and its immediate application).

[lxix] CJEU 3 September 2015, Inuit, C-398/13, pts 60 and 61 (on the topic of the right to property and the functional notion of “possessions”).

[lxx] ECHR, Grand Chamber, 30 June 2005, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Irelande, § 156.

[lxxi] See in relation to a decision to transfer to Greece: ECHR, Grand Chamber, M.S.S. v. Belgium and Greece, No. 30696/09, §358; on a decision to transfer to Italy: ECHR, Grand Chamber, 4 November 2014, Tarakhel v. Suisse, No. 29217/12, §120-122.

[lxxii] Which is not always the case: according to the Court of Justice, only “systemic flaws” can justify not proceeding with a “Dublin” transfer: on this point see CJEU 21 December 2011, N.S. v. Secretary of State for the Home Department, C-411/10, §85.

[lxxiii] ECHR 6 March 2013, Michaud v. France, No. 12323/11, §103.

[lxxiv] ECHR 6 March 2013, Michaud v. France, No. 12323/11, §115.

[lxxv] ECHR, Grand Chamber, 23 March 2016, Avotins v. Latvia, No. 17502/07, § 109.

[lxxvi] ECHR, Grand Chamber, 23 May 2016, Avotins v. Latvia, No. 17502/07, § 114. In this case, the senate of Latvia’s supreme court ordered the enforcement in Latvia of a decision delivered in absentia by a Cypriot court: applying the Bosphorus presumption, the Cour noted in concreto the absence of manifest deficiency in the protection of the fundamental rights that might overturn the presumption. See on this point: C. Picheral, Des réponses potentielles de la Cour européenne des droits de l’Homme à l’avis 2/13, Revue de l’Union européenne, 2016, p. 426.

[lxxvii] ECHR 10 February 2009, Zolotoukhine, No. 14939/03.

[lxxviii] ECHR, Grand Chamber, 4 March 2014, Grande Stevens, No. 18640/10.

[lxxix] CJEU, Grand Chamber, 26 February 2013, ǺkerbergFransson, C-617/10.

[lxxx] CC No. 2014-453 QPC dated 18 March 2015, John L.

[lxxxi] CC No. 2016-545 QPC dated 24 June 2016, Alec W. and CC No. 2016-546 QPC dated 24 June 2016, Jérôme C.

[lxxxii] CC No. 2016-550 QPC dated 1st July 2016, Stéphane R.

[lxxxiii] See the broad interpretation adopted by the Court of Justice in its judgment CJEU, Grand Chamber, 26 February 2013, ǺkerbergFransson, C-617/10.

[lxxxiv] See on the topic of the scope of article 41 of the Charter: CJEU 17 July 2014, YS, C-141/12, § 67; the right to be heard, which is consecrated by this article is nonetheless “an integral part of the rights of the defence, which is a general principle of EU law”: see on this point CJEU 5 November 2014, Sophie Mukarubega, C-166/13, § 45; CJEU 11 December 2014, Khaled Boudjlida, C-249/13, § 34.

[lxxxv] See on this point V. Skouris, Développements récents de la protection des droits fondamentaux dans l’Union européenne : les arrêts Melloni et Åkerberg Fransson, Dir. Un. Eur., fasc. 2, 2013, p. 229.

[lxxxvi] CJEU, Grand Chamber, 26 February 2013, ÅkerbergFransson, C-617/10, § 36.

[lxxxvii] CJEU, Grand Chamber, 26 February 2013, Stefano Melloni, C-399/11. See on this point, the Spanish Constitutional Court’s reply: Aida Torres Perez, « Melloni in Three Acts: From Dialogue to Monologue », European Constitutional Law Review, vol. 10, Issue 02, September 2014, pp. 308-331.

[lxxxviii] CJEU, Grand Chamber, 26 February 2013, Stefano Melloni, C-399/11, § 60; also, the obiter dictum in the ǺkerbergFransson judgment on the same day:CJEU, Grand Chamber, 26 February 2013, ÅkerbergFransson, C-617/10, § 29.

[lxxxix] CJEU, Full Court, 18 December 2014, Opinion 2/13; see on this point, H. Labayle and F. Sudre, L’avis 2/13 de la Cour de justice sur l’adhésion de l’Union européenne à la Convention européenne des droits de l’Homme : pavane pour une adhésion défunte ?, RFDA, 2015, p.3.

[xc]Solange I judgement of 29 May 1974, BVerfGE, 37, 271 – RTD eur. 1975.316 – and Solange II judgment of 22 October 1986, BVerfGE 73, 339 – RTD eur. 1987.537.

[xci] Art. 79 sub-§. 3 of the Fundamental Law.

[xcii] CC No. 2006-540 DC dated 27 July 2006, Loi relative au droit d’auteur et aux droits voisins dans la société de l’information, cons. 19 [Law relating to copyright and related rights in the information society].

[xciii] See P. C. Villalon, re CJEU, Grand Chamber, 16 June 2015, Gauweiler, C-62/14.

[xciv] “European arrest warrant” Decision dated 15 December 2015, 2 BvR 2735/14. In the same decision, the German Federal Constitutional Court emphasised the limits imposed by the observance of the Charter of Fundamental Rights’ to the principle of mutual recognition and to the practical enforcement of a European arrest warrant. See on this point: A. Gaillet, Confiance et méfiance autour du mandat d’arrêt européen. La décision de la Cour constitutionnelle fédérale allemande du 15 décembre 2015, AJDA, 2016, p. 1112.

[xcv] CJEU, Grand Chamber dated 5 April 2016, Aranyosi and Căldăraru (C-4074/15): “where there is objective, reliable, specific and properly updated evidence with respect to detention conditions in the issuing Member State that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention, the executing judicial authority must determine, specifically and precisely, whether there are substantial grounds to believe that the individual concerned by a European arrest warrant, issued for the purposes of conducting a criminal prosecution or executing a custodial sentence, will be exposed, because of the conditions for his detention in the issuing Member State, to a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, in the event of his surrender to that Member State. (operative part of judgment). 

[xcvi] [2015] UKSC 19, Pham v Secretary of State for the Home Department, 25 March 2015.

[xcvii] [2014] UKSC 3, R (on the application of HS2 Action Alliance Limited) (Appellant) v The Secretary of State for Transport and another (Respondents), 22 January 2014.

[xcviii] See, for instance, in the area of taxation, the regime for relations between parent companies and subsidiaries: CC No. 2015-726 DC of 29 December 2015, Loi de finances rectificatives pour 2015, cons. 7 and 8; CC No. 2015-520 QPC du 3 February 2016, Société Metro Holding France SA, cons. 9.

[xcix] CJEU, Grand Chamber, 26 February 2013, Stefano Melloni, C-399/11.

[c] CJEU, Grand Chamber, 5 April 2016, Aranyosi et Caldararu, C-404/15 and C-659/15.

[ci] CC No. 2013-314 QPC dated 4 April 2013, Jeremy F. (referral to the Court of Justice of the European Union); CJEU 30 May 2013, Jeremy F., C-168/13; CC No. 2013-314 QPC dated 14 June 2013, Jeremy F. (decision on merits, abrogation).

[cii] CJEU, Grand Chamber, 16 June 2015, Peter Gauweiler, C-62/14.

[ciii] Judgment of 14 January 2014, 2 BvR 2728/13; CJEU, Grand Chamber, 16 June 2015, Peter Gauweiler, C-62/14. See on this point: H. Gaudin, L’affaire OMT devant son (ses) juge(s). En attendant Karlsruhe, plaidoyer pour un dialogue constitutionnel, AJDA, 2016, p. 1050.

[civ] In the absence of a precise definition of monetary policy in the European treaties, since the Pringle judgment (C-370/12, pt. 53), the CJEU delimits its realm with reference to the objectives it pursues.

[cv] Judgement of 21 June 2016, 2 BvR 2728/13.