The right to education of vulnerable groups in the European system of human rights protection

1 hónap 1 hét ago

A blogbejegyzés Campus Mundi ösztöndíjjal támogatott tanulmányok keretében került elkészítésre. (The publishing of this article has been made possible by a Campus Mundi grant.)


I. Introduction

When talking about the topic of vulnerability, one must first carefully define the concept of vulnerability itself, as research in law and social sciences (especially sociology and bioethics), the legal documents of states and international organizations, and international frameworks of human rights protection all offer differing approaches to what it means to be vulnerable. Even if we narrow the scope of our analysis to strictly legal approaches, we are faced with multiple parallel concepts of vulnerability – and these aren’t always considered mutually compatible. 

On one hand, representatives of critical theory – such as Martha Anderson Fineman, Anna Grear or Morgan Cloud – approach vulnerability as a universal category: due to our embodiment, we are all inevitably vulnerable, our physical existence being exposed to illnesses and disabilities, accidents, natural disasters, economic hardships and other difficulties. This approach, while accepting that certain members of society – due to differences in both their embodiment and their social and economic position – are vulnerable in different ways and to a different extent, rejects the idea that vulnerability can be limited to certain identities and to those groups in society that embody these identities.[i]

On the contrary, in the European framework of human rights protection – with particular regard to the practice of the ECtHR and the legal instruments of both the Council of Europe and the European Union – a different interpretation of vulnerability emerges: those regarded as vulnerable belong to certain groups, certain populations within society.[ii] This interpretation – closely related to the concept of “protected characteristics” utilized by anti-discrimination law, but somewhat broader – considers vulnerability to stem from the fact that due to certain identities or characteristics, members of some populations find it particularly difficult to exercise their rights. Vulnerability implies harm (or potential harm) – in the practice of the ECtHR, two main types of harm are delineated: maldistribution, resulting in financial deprivation and social disadvantages for the members of the group in question and misrecognition, resulting in prejudice and stigmatization towards those belonging to the group.[iii]

II. Categories of vulnerability

In drawing up the structure of the research behind this paper, I used a categorization of vulnerable groups developed by Francesca Ippolito and Sara Iglesias Sanchez in their volume dealing with vulnerability specifically in the context of European human rights protection. The book in question identifies five categories of vulnerable groups:

1. Groups traditionally considered vulnerable: the broad groups belonging to this category are those whose innate or physical characteristics make them socially perceived as ‘inherently’ vulnerable. This category includes children and the elderly (those considered vulnerable due to their age), people with disabilities and in certain scenarios, women.[iv]

2. Vulnerable minorities: groups whose vulnerability derives from their status as a minority by reference to the dominant cultural, social, ethnical or sexual orientation positions of their society of reference (so primarily, ethnic and national minorities, linguistic minorities, religious minorities and sexual minorities).[v]

3. Non-nationals: this category includes various groups ranging from those deprived of any nationality and those who cannot avail themselves of the protection of their state of nationality, to those awarded the highest level of protection as citizens of the European Union. Particularly vulnerable are the stateless and asylum seekers: the vulnerability of the latter is often exasperated by such personal circumstances as bad health and old age.[vi]

4. Victims of illegal acts: these cases of vulnerability arise out of intentional human conduct, turning an individual into a victim (including trafficked migrants, victims of crime and victims of terrorism).[vii]

5. Circumstantial vulnerability: the final category covers three very different groups: prisoners/detainees, irregular immigrants, and socially vulnerable people (in this case meaning financially deprived and at direct risk of social exclusion). Despite the obvious differences among these groups, the reason that they are grouped together is the fact that their vulnerability stems from circumstantial elements that may well be temporary, and which are often imposed on them by the state or their social conditions. Additionally, despite their undeniable vulnerability, their need for protection is sometimes countered in the political and legal discourses by the perception that individual choice has somehow contributed to their own position (by committing criminal offences, disregarding the applicable migration rules, or failing to achieve social inclusion).[viii]

III. Vulnerable groups and the right to education

During my research into the topic, I endeavored to briefly explore some specific approaches designed within the European system of human rights protection that aim to promote the access of the members of certain vulnerable groups to education and training that is of a sufficiently high quality and that is reactive to their group-level particularities (their special needs). Within the scope of this present blog post, I would only like to summarize my main conclusions without going into detail.

I found that the European framework of human rights protection reacts rather differently to specific forms of vulnerability: the provision of access to education, as an important tool in countering social exclusion, appears primarily in the context of people with disabilities and those belonging to national and ethnic minorities. With regard to other vulnerable groups, for instance, asylum seekers or socially vulnerable youth, legal guarantees in the field of education are significantly more scarce, and in the case of certain groups (such as irregular immigrants) they are completely absent.

1. Vulnerability of disabled people

Within the category of groups traditionally seen as vulnerable, the one group that received the most attention with regard to their special status in education are the disabled. Approximately 80 million people in the European Union live with some form of physical, intellectual, sensory or learning disability, who are affected by poverty to a much larger extent than other EU citizens, and face limitations in access to employment as well as limited opportunities to enjoy a wide range of goods and services including education.[ix] Within the European framework of human rights protection, a social model of disability has started to replace the formerly ubiquitous medical model: while the medical model can be characterized as paternalistic and essentializing, considering disabled people as little more than the objects of protective legislation (that often restricts the rights of affected people), the social model perceives disabled people as the subjects of rights: their rights should be equal to those of other members of society, and in order to allow them to practice these rights freely, legislation should aim for their integration instead of maintaining segregation by “protective” measures.[x]

While the explicit admission of the vulnerability of disabled persons is mostly limited to the area of consumer protection in European Union law – where the legal category of “vulnerable consumers” provides extra protection to children, the elderly and those with mental disabilities against unfair commercial practices and dangerous products[xi] – the EU itself and all its member states are parties to the UN Convention on the Rights of Persons with Disabilities of 2006, meaning that the provisions of the Convention are legally binding on EU institutions and bodies. The Convention remedies the lack of a definition of “disability” in relevant EU instruments – such as Directive 2000/78 of the Council on equal treatment in employment and occupation – and its Article 24 requires Parties to recognize the right of persons with disabilities to education with a view to realizing this right without discrimination and on the basis of equal opportunity.[xii]

While the Court of Justice of the EU opined in its judgment in the Z. v A Government department and the Board of management of a community school case that the Convention is “programmatic” and its provisions are not “unconditional and sufficiently precise” to have direct effect in European Union law[xiii], the Convention, nonetheless, played an important role in the development of the European Commission's European Disability Strategy 2010-2020. Regarding the area of education, the Strategy commits to promoting inclusive education and lifelong learning for pupils and students with disabilities in order to facilitate their participation in society and in the labour market and to improve their quality of life.[xiv]

2. Vulnerability of national and ethnic minorities

The other form of vulnerability that receives particular attention in the field of education, training and youth policy is that of national and ethnic minorities, who, in comparison to majority society, are often lacking in those resources they would require for the preservation of the particular identities of their communities. When trying to remedy the vulnerability of minorities, Member States are faced with a double challenge: on the one hand, they must strive to establish substantial equality between members of minority groups and those belonging to the majority; on the other, they should enable minorities to retain their distinguishing specificities, their culture and traditions.

On a European level, the Framework Convention for the Protection of National Minorities, adopted by the Council of Europe, can be considered the most comprehensive document promoting the rights of national minorities. Multiple provisions of the Framework Agreement affect the right to education of members of national minorities: according to Article 6, the contracting parties undertake to “encourage a spirit of tolerance and intercultural dialogue and take effective measures to promote mutual respect and understanding and co-operation among all persons living on their territory, irrespective of those persons’ ethnic, cultural, linguistic or religious identity, in particular in the fields of education […]”.[xv] Articles 12 through 14 require Member States to provide equal opportunities for access to education at all levels for persons belonging to national minorities, to take measures in the fields of education and research to foster knowledge of the culture, history, language and religion of their national minorities and to recognize the rights of persons belonging to a minority to set up and to manage their own educational and training establishments and to learn their minority language.[xvi]

The European Convention on Human Rights, while not containing any specific provisions on the protection of minorities, plays an important role in remedying the infringements of minority rights: of particular importance is Article 2 of the first Protocol, providing for the right to education for everyone, including the right of parents to ensure access to education and teaching in conformity with their own religious and philosophical convictions.[xvii] Article 14 of the Convention provides for the enjoyment of the rights and freedoms set forth in the Convention without discrimination on any ground, while Article 34 entitles every person or group of individuals in the Member States – including, therefore, members of minorities and minority groups themselves – to submit an application to the European Court of Human Rights in the case of Member States infringing upon their rights set forth in the Convention and its Protocols.[xviii]

Examining the case law of the European Court of Human Rights, we can find that the Court concluded in several cases concerning the right to education of young people belonging to a certain national or ethnic minority that Article 2 of the first Protocol and Article 14 of the Convention have been infringed upon. The Court has unearthed particularly severe issues regarding the education of Roma children: in the cases D.H. and others v. Czech Republic, Orsus and others v. Croatia and Horváth and Kiss v. Hungary, the Court condemned the Member States in question for classifying the Roma youth in question as intellectually disabled and placing them in special schools.

While the scope of the EU approach to minority protection is in general narrower than that of the Council of Europe, with the coming into effect of the Treaty of Lisbon, the Treaties now explicitly refer to respect for human rights, specifically including the rights of persons belonging to minorities, as one of the foundational values of the European Union.[xix] Within secondary EU legislation, it is worth mentioning Directive 2000/43/EC of the Council, which aims to lay down a European framework for combating discrimination on the grounds of racial or ethnic origin: the provisions establishing the scope of the Directive make explicit mention of education as one of the key areas where there shall be no direct or indirect discrimination based on racial or ethnic origin.[xx]

Regarding certain larger minorities, the European Union strives to further help Member States in the fight against social exclusion and discrimination by developing special programmes, such as the EU framework for national Roma integration strategies, through which the European Commission implores Member States to adopt national strategies for the improvement of the socio-economic conditions of Roma people until 2020.[xxi] The framework delineates four crucial areas where Member States should adopt specific measures to combat the social exclusion of Roma people: access to education is once again considered a key area alongside the areas of employment, healthcare and housing.[xxii]


As mentioned earlier and illustrated by these examples, the legal mechanisms currently in place seem to “favor” certain forms of vulnerability in the context of providing equal access to inclusive, quality education. However, this conclusion should be supplemented by two additional notes. First, the European framework of human rights protection has gradually become more sensitive to the issue of vulnerability, with the European Court of Human Rights at the forefront of this development process. Landmark decisions of the Court have played a key role both in defining the concept of vulnerability (Chapman v. United Kingdom case) and in establishing the vulnerability of certain groups (including Roma, people with disabilities and asylum seekers). However, in cases concerning other groups – including certain national and ethnic minorities (for example, Kurds living in Turkey), religious and sexual minorities – the Court, so far, has not invoked the concept of vulnerability in its arguments. If this tendency of “sensitization” continues and the Court further develops its case-law regarding the concept of vulnerability, this development may also provide guidance for other key participants within the European human rights protection framework for the establishment of further targeted approaches aiming to provide equal access to education for members of vulnerable groups.[xxiii]

Second, while an in-depth analysis of European Union education policy would fall beyond the scope of this blog post, it is important to notice that the fight against social exclusion appears often among the key aims of European Union policy instruments: in the area of education, training and youth policy, the promotion of social inclusion and diversity plays an ever-greater role in the structure and the execution of the “Education and Training 2020” strategic framework and the Erasmus+ programme, both of which have previously been explored in the blog posts linked above. While the competences of the EU in this policy area are limited to supporting, coordinating and supplementing the actions of the Member States[xxiv], the use of the Open Method of Coordination (OMC) ensures that the EU can efficiently support Member States in developing education and youth policy instruments that take into account the issues of vulnerability and the risk of social exclusion without the necessity of the harmonization of Member State legislation.


For a list of references, click HERE.

Author: Daniel Szilágyi, PhD student, University of Debrecen, Faculty of Law

[i] Martha Anderson Fineman: Equality, Autonomy, and the Vulnerable Subject in Law and Politics. In: (Martha Albertson Fineman – Anna Grear eds.) Vulnerability: Reflections on a New Ethical Foundation for Law and Politics, eds. Ashgate, Farnham 2013. 21–32.

[ii] Lourdes Peroni – Alexandra Timmer: Vulnerable groups: The promise of an emerging concept in European Human Rights Convention law. International Journal of Constitutional Law 2013/4. 1056–1085.

[iii] Peroni – Timmer: i.m. 1065.

[iv] Francesca Ippolito – Sara Iglesias Sánchez (szerk.): Protecting Vulnerable Groups: The European Human Rights Framework. Hart Publishing, Oxford 2015. 6.

[v] Ippolito – Iglesias Sánchez: i.m. 10-11.

[vi] Ippolito – Iglesias Sánchez: i.m. 14.

[vii] Ippolito – Iglesias Sánchez: i.m. 16-17.

[viii] Ippolito – Iglesias Sánchez: i.m. 18-19.

[ix] Anja Wiesbrock: Disability as a Form of Vulnerability under EU and CoE Law: Embracing the ’Social Model’? In: (Francesca Ippolito – Sara Iglesias Sánchez szerk.) Protecting Vulnerable Groups: The European Human Rights Framework. Hart Publishing, Oxford 2015. 71-94.

[x] Szilvia Halmos: A fogyatékosság orvosi és társadalmi modelljének szintézise, különösen a munkajog területén. Doctoral thesis, Pázmány Péter Katolikus Egyetem Jog- és Államtudományi Kar, Budapest 2016. 17-20.

[xi] Wiesbrock: i.m. 81-87.

[xii] Paragraph 1) of Article 2 of the United Nations Convention on the Rights of Persons with Disabilities

[xiii] Z v. A Government Department and the Board of Management of a Community School (2014), C-363/12, 90.

[xiv] European Disability Strategy 2010-2020: A Renewed Commitment to a Barrier-Free Europe, 2.1.5.

[xv] Convention for the Protection of National Minorities, Article 6.1.

[xvi] i.m., Articles 12-14

[xvii] Protocol No. 1 to the European Convention of Human Rights, Article 2

[xviii] Ippolito – Iglesias Sánchez: i.m. 10-11.

[xix] Treaty on the European Union, Article 2

[xx] Directive 2000/43/EC of the Council implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, 3.1.

[xxi] Communication of the Commission COM(2011) 173 final: An EU Framework for National Roma Integration Strategies up to 2020

[xxii] Tawhida Ahmed: The Many Vulnerabilites of the Roma and the European Legal Framework. In: (Francesca Ippolito – Sara Iglesias Sánchez eds.) Protecting Vulnerable Groups: The European Human Rights Framework. Hart Publishing, Oxford 2015. 141-158.

[xxiii] Peroni – Timmer: i.m. 1070.

[xxiv] Treaty on the Functioning of the European Union, Article 6

Kategória: Public EducationEuropean UnionBrexit Eng: 

Implications of a “no deal” Brexit for students at UK universities

2 hónap 3 hét ago

Following the “historic defeat” of PM Theresa May’s Brexit deal at the hands of the UK House of Commons – whose members overwhelmingly voted against the deal by the devastating margin of 432 to 202 – the possibility of a “no deal” Brexit seems higher than ever before, meaning a scenario in which the United Kingdom would leave the European Union immediately on 29 March 2019 with no agreements in place about what their relationship would be like in the future. Effects of a “no deal” Brexit could include the re-introduction of border checks, a severe disruption of transport and trade between the UK and the EU, compatibility issues between UK and EU drivers’ licenses – possibly requiring a special driving permit – and the lack of a transition period in the entry into force of the new rules governing the relationship of the UK and the EU.

Without further preparatory actions or commitments made by the UK government, a “no deal” Brexit would create immediate uncertainty for EU nationals in UK universities, prospective students and staff from across the EU, and for those participating in any of the Horizon 2020, Structural Funds or Erasmus+ programmes. According to advocacy organisation Universities UK, if the Brexit negotiations end without a deal in place, then:

  • there is going to be a general uncertainty on whether any commitments agreed as part of the Draft Withdrawal Agreement on citizens’ rights and continued participation in Horizon 2020 and Erasmus+ still apply,
  • there would be no agreement on implementing a transition period between the date of Brexit (29 March 2019) and 31 December 2020, during which time freedom of movement would essentially still apply,
  • there would be no certainty on what the UK’s future relationship with the EU would look like, including in areas like the mobility of citizens and access to EU programmes,

Furthermore, a “no deal” Brexit could result in the following outcomes taking effect after 29 March 2019:

  • EU nationals entering the UK could be treated as third country nationals, subject to non-EEA immigration rules and requirements,
  • the UK’s ability to participate in Horizon 2020 and Erasmus+ could cease, because there would be no legal obligation for the UK to pay any financial settlement on exit,
  • the continued mutual recognition of professional qualifications covered by the EU Directives currently in force would be uncertain.

The UK government has already put in place a number of stability measures for universities that Universities UK and other advocacy organizations in the field of education have lobbied for. These measures include a policy paper on citizens’ rights in the event of a “no deal” Brexit, confirming that the EU Settlement Scheme will continue to be implemented after 29 March 2019, allowing EU citizens and their families living in the UK to continue to be able to work, study, and access benefits and services in the UK on the same basis as they do now. Regarding the migration arrangements for EU and EEA nationals arriving after 29 March in a “no deal” scenario, the government confirmed that the individuals in question will be able to travel to and enter the UK as now, but if they wish to remain for more than three months, they will need to register for the European Temporary Leave to Remain which will be valid for three years.

With regards to Horizon 2020 funding, the UK government extended its commitment to underwrite payments of multi-beneficiary Horizon 2020 grants (i.e. those open to cooperating participants from multiple countries) awarded to UK-based applications submitted after the UK leaves the EU; however, the government is aware that access to the funding of mono-beneficiary grants (such as European Research Council and Marie Sklodowska-Curie Actions) will be lost in the case of a “no deal” Brexit. Similarly, projects originally funded by EU Structural Funds will be underwritten by the UK government until the end of the current EU budget period (in 2020) with the UK authorities continuing to sign new projects until programme closure. In the case of a “no deal” scenario, the UK government will also underwrite Erasmus+ grants agreed before 29 March 2019, covering UK university students on an Erasmus+ placement at the point of Brexit, and any projects that fall under these grant agreements but are yet to start.

EU students starting a course in the higher education institutions of the UK in 2019–20 (the first cycle post-Brexit) will remain eligible for home fee status and for financial support as per existing rules, even in the case of a “no deal” Brexit. On the topic of recognition of qualifications, the government stated that it wishes to establish a system on mutual recognition of professional qualifications (MRPQ) that covers the same range of professions as the existing EU Directive.

Universities UK has suggested a scope of further governmental actions to mitigate risk for universities, building on the aforementioned stability measures, that would help minimise any disruption in the event of a “no deal” Brexit, to provide greater certainty for the university sector over the coming months. This includes the government committing to:

  • make no substantive changes to rules governing EU migration until 1 January 2021,
  • strengthen and clarify its existing underwrites for participation in EU programmes,
  • establish back-up structures to mirror Horizon 2020 and Erasmus+ where required.

Through its general commitments, the UK government should also work on clearing up the main areas of uncertainty faced by universities in the case of a “no deal” outcome. Universities UK has suggested the following specific actions that the government should take to mitigate uncertainty and to ensure stability across the university sector in a “no deal” scenario:

  • reconsidering the policy of European Temporary Leave to Remain in order to provide reassurance to EU students starting courses that are longer than three years in duration,
  • clarifying how the underwrite for EU grants will work in practice, including who will administer funds/make funding decisions and what would be required of universities receiving funds,
  • setting out its contingency plans for replacing access to single beneficiary Horizon 2020 funds, including the European Research Council and Marie Sklodowska-Curie Actions,
  • setting out its contingency plans for replacing access to Erasmus+.


The briefing of Universities UK on the implications of a ‘no deal’ Brexit can be read in full HERE.

Kategória: Public ServicesPublic LawEuropean UnionHigher EducationBrexit Eng: 

CETA’s mechanism for the settlement of disputes gets green light from Advocate General

3 hónap 1 hét ago

The dispute settlement mechanism between investors and states provided for by the free trade  agreement between the EU and Canada (Comprehensive Economic and Trade Agreement, CETA) is compatible with EU law, the Advocate General of the European Court of Justice (ECJ) concluded on Tuesday (29 January), dismissing previous concerns. The agreement does not adversely affect the autonomy of EU law and does not affect the principle that the ECJ has exclusive jurisdiction over the definitive interpretation of EU law.

On 30 October 2016, Canada and the EU and its Member States signed the CETA, containing detailed provisions on trade and investment. Key to proceedings here, the Parties agreed as part of their deal to create a system by which investors and States could settle disputes over the interpretation and application of the agreement (Investor State Dispute Settlement System, ISDS). In that context, what is envisaged – as one of the CETA’s innovations – is the creation of a Tribunal and an Appellate Tribunal and, in the longer term, a commitment to the establishment of a multilateral investment tribunal. The aim is thus to establish an Investment Court System (ICS), which, in line with the Commission’s objectives to transform investment treaty arbitration into a court-like system, departs from several long-standing features of investment arbitration, including Party-appointed arbitrators and the absence of an appeal mechanism.

More precisely, on 13 September 2017, the Commission introduced a recommendation for a Council decision authorising the opening of negotiations for a convention establishing a multilateral court for the settlement of investment disputes (Multilateral Investment Court, MIC), with the aim of „having one, multilateral institution to rule on investment disputes covered by all the bilateral agreements in place” rather than one bilateral investment court for each free trade agreement. The Council formally gave its agreement on 20 March 2018, though the possibility of replacing the various ICSs by a single MIC had already been provided for by the CETA, the EU-Singapore Free Trade Agreement (EUSFTA) and the EU-Vietnam Free Trade Agreement (EUVFTA). International negotiations are taking place in the framework of the UN Working Group under the United Nations Commission on International Trade Law (UNCITRAL), which had identified the setting up of MIC as an „option for reform” of investor-State dispute settlements at the occasion of its 50th session last July. On 18 January 2019, the EU and its Member States submitted two papers to the working group. The first paper sets out in more detail the EU’s proposal of establishing a MIC whilst the second proposes a work plan for the process of the working group. The EU papers are a contribution to a multilateral discussion on ISDS reform with broad and inclusive participation of all countries and stakeholders and it remains to be seen whether the EU will gather sufficient support from its trading partners.

 Investor protection – and in particular, the above-mentioned system of tribunals, as we wrote here – became a focal point of protests against CETA when EU countries were deciding whether to back it in 2016. In autumn, the same year, the Belgian region of Wallonia threatened to block it, but Belgium persuaded it not to do so in return for certain concessions – including a request for the ECJ to give its view (full implementation of CETA in any case requires the approval by all 28 EU member countries and, for Belgium, also regional parliaments). Critics of the deal said that its provisions on investor protection give too much power to multinationals, letting them sue public authorities in special courts and effectively allowing them to dictate public policy. On 6 September 2017, before ratifying CETA Belgium asked the ECJ to assess the compatibility of this ICS with EU law (although it took no official position on the merits of its questions). The request for an opinion is structured around the following three issues: the jurisdiction of the Court, the principle of equal treatment and the requirement that EU law is effective, and the right of access to an independent and impartial tribunal.

First, Belgium observed that the ICS allows the CETA Tribunal to examine the compatibility of the provisions of secondary EU law with the relevant provisions of CETA. Advocate General Yves Bot  opined that the ICS provisions of CETA did not undermine the principle that the ECJ has exclusive competence to provide the definitive interpretation of EU law. In that regard, the Advocate General states that the reason for the establishment of a dispute settlement mechanism is the requirement of reciprocity in the protection afforded to the investors of each Party and that is consistent with the agreement not having direct effect. The Advocate General considers that the safeguards surrounding the establishment of the dispute settlement mechanism are sufficient. The Tribunal has a narrowly circumscribed jurisdiction, namely, in the event of a breach of the relevant provisions of that agreement by one of the Parties, granting compensation to the investors suffering loss.

Moreover, the Advocate General states that the dispute settlement mechanism does not affect the role of national courts and tribunals of ensuring the effective application of EU law. He noted that whilst the CETA Tribunal can interpret EU law, it must follow the prevailing interpretation of domestic law of a Party by the courts or authorities of that Party, and the meaning it places on domestic law (including EU law) cannot bind the courts or authorities of a Party. He concluded, accordingly, that „the CETA Tribunal cannot therefore issue binding interpretations of EU law”. The award therefore is „binding between the disputing parties in respect of that particular case” and the ECJ will retain jurisdiction to give a definitive interpretation of EU law.

Second, Belgium observed that the ICS under CETA could be seen as providing for a preferential judicial process for Canadian investors. The Advocate General rejected the notion that the ICS infringes on the general principle of equal treatment in respect of access to the dispute settlement mechanism and dismissed the possibility that by virtue of that access a Canadian investor may evade the financial consequences of the application of EU law. According to the Advocate General, the situation of Canadian investors who invest in the EU is not comparable with the situation of European investors who invest within their own economic area. Only the investors of each Party who invest in the territory of the other Party are in comparable situations.

Third, rejecting the Belgian argument, the Advocate General also considered that the ICS did not undermine the right of access to an independent and impartial tribunal. The Advocate General referred to the procedural safeguards in place to ensure access to the ICS by small and medium-sized enterprises, such as the ability to request that a sole Member of the Tribunal hear the case to keep costs down; the CETA Tribunal’s general discretion over costs; and the fact that the CETA Tribunal does not have exclusive jurisdiction over actions brought by investors – small and medium sized enterprises can still bring proceedings before domestic courts or tribunals where domestic law contains adequate standards of protection.

The Advocate General also dismissed concerns about the remuneration of CETA Tribunal members which Belgium had questioned as possibly undermining the right of access to an independent and impartial tribunal. There are two components to the remuneration of CETA Tribunal members, one of which is dependent on the volume and complexity of litigation brought, the other of which is fixed. The Advocate General considered that this system was appropriate for the hybrid nature of the ICS and the fact that CETA Tribunal members will initially not be working on a full-time basis. Finally, the Advocate General stated that CETA has specific rules in place regarding the appointment and termination of CETA Tribunal members to guarantee their independence and impartiality, and that these rules are appropriate to the specific characteristics of the ICS’s hybrid nature.


The opinion is likely to shape the future of extra-EU investment arbitration, as the Advocate General highlighted that „what is at issue here is the definition of a model which is consistent with the structural principles of the EU legal order and which, at the same time, may be applied in all commercial agreements between the European Union and third States.” It will affect future international agreements negotiated by the EU, notably, it will have a strong impact for the Commission’s plans to establish a MIC (discussed above).

If the opinion is adhered to by the ECJ, it confirms the viability of the EU’s mooted ICS in terms of its co-existence with the EU legal order, and permits the EU to continue to pursue adoption of the ICS on a wider scale across all of the EU’s trade agreements. The Advocate General’s opinion is not determinative – the ECJ’s judgment is anticipated later this year.  Although the ECJ usually follows the opinion, the divergence of views between the Court and Advocate General Wathelet in Achmea was a striking example that this pattern admits exceptions. In its Achmea ruling (Case C-284/16 of 5 March 2018), the ECJ held that the EU has competence to conclude agreements establishing an international court „provided that the autonomy of the EU and its legal order is respected”.

Pending the ECJ’s ruling and the completion of the necessary ratification process, CETA provisionally entered into force on 21 September 2017 with the exclusion of the ICS – among other controversial provisions.


For a list of references, click HERE.

Author: Petra Ágnes Kanyuk, PhD student, University of Debrecen, Faculty of Law


Source of the images used:

  Kategória: TradeEuropean Union

Expressions about Public Persons: The Case-Law of the European Court of Human Rights and the New Challenges of Social Media

3 hónap 2 hét ago


The Internet is the most important development in communication technology since the press. Thus it affects the practice of freedom of speech and press. It enables much more equal opportunities for communication, as individuals can publish their views via the Internet and the content they create is available almost all over the world.[1] Social media has an important role in the individual’s self-expression today. This new media has several different features compared to other mediums. Beside the multitude of advantages, these new technologies brought along new problems and dangers too. There are new challenges both for the legislative authority and the courts all over the world.[2] The question is raised: how the courts can react to these changed circumstances in the course of human rights adjudication? Is it possible to apply the existing human rights measures or do the features of the new media require the development of new measures?

In this paper I will analyse the precedent-based adjudication of the European Court of Human Rights and the new challenges brought by social media regarding expressions about public persons. The aim of this paper is to provide a short overview of the Court’s case-law from this aspect and highlight the recent developments in connection.

First, I will introduce the measures and the well-distinguished system of criteria created by the Court with the dynamic and evolutive approach to its case-law regarding expressions about public persons. Secondly, I will examine how the Court can apply the previously developed measures and system of criteria in case the expression was published on the internet, especially on social media, which has several different features compared to other mediums. I will furthermore analyse the Court’s approach to the new challenges of the internet and social media through a concrete judgment.

The General Measures in the Case-Law of the European Court of Human Rights

The case law of the European Court of Human Rights has an important role in the Member States of the Council of Europe because it affects their national human rights approaches. For this reason, it is inevitable to constantly analyse the Strasbourg Human Rights mechanism.

It is widely recognized that the case law of the European Court of Human Rights has some characteristics of precedent-based adjudication. It regularly follows those judgments that have precedential significance in its own case law. Nevertheless “cogent reasons”, earlier erroneous decisions or societal changes can shift the Court’s interpretation, thus it uses the technique of overruling in such cases. When a new case is clearly or reasonably different than the precedent, the technique of distinguishing is applied by the Court.[3] On the one hand, the precedent-based adjudication makes the Court’s case law consistent and accountable. On the other hand, the Court can respond to the changing circumstances and with this dynamic and evolutive approach to its case law, and thus the Court develops the protection of human rights in Europe. With this approach the Strasbourg Court creates a well–distinguished system of criteria regarding interpretation of human rights which may make a progressive impact on national judicial interpretations.

In the public discourse, expressions about public persons are significant and essential to a democratic society. Members of society may freely express their opinion on those who have an influence on public discussions and those who make decisions regarding public interest. Accordingly a constitutional tradition became a common constitutional principle: public persons must tolerate more criticism compared to other individuals. The Court consequently stated that the limits of acceptable criticism are wider as regards public persons.[4]

However, it doesn’t mean that every libelous attack on a public figure should be protected. In these cases there is a conflict between human rights. On the one hand there are freedom of expression and freedom of the press. On the other hand, there is human dignity, or more specifically the right to reputation and honour which derives from it. In democratic states, the aim is to try to find an appropriate balance between these rights. In the course of human rights adjudication it is the judges task to reach this balance. These cases are very complex and a number of factors are taken into account when deciding whether the free speech right trumps the human dignity and reputation rights.

As numerous other courts, the ECtHR has also made a distinction between statements of facts and value judgments. It says that while the existence of facts can be demonstrated, the truth of value judgments is not susceptible to proof.[5]

In the Court’s case law, true statements of facts relating to public persons are protected by freedom of expression. According to the Court, the utterance of libelous facts goes beyond the right to freedom of expression provided in Article 10 of the Convention even if it was a criticism about a public person.[6] Consequently, in the Court’s point of view the protection of freedom of expression doesn’t cover the knowingly false statement of fact because it exceeds the limits of permissible criticism.[7]

Beyond that, the Strasbourg Court applies one kind of diligence measure. Applying this measure, the Court examines the negligence of the speaker regarding the truthfulness of his or her statement of fact. When the speaker acted in good faith and based on the available information he or she reasonably thought of as true, his or her allegation of fact is protected by freedom of expression, even if finally turns out that it was false.[8] And there is another measure of diligence in the Court’s practice regarding professional journalists. Their false statements are protected if they were acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism.[9]

As regards value judgments, the Court says that it would be an impossible requirement to prove their truth and it would infringe the freedom of opinion.[10] The Court held that freedom of expression also covers a degree of exaggeration, or even provocation[11] and the satirical or humorous opinions in the public discourse.[12] Accordingly, opinions are protected at the highest level.

The Court also held that it doesn’t mean that there are no limits to these expressions. The Court added that „offence may fall outside the protection of freedom of expression, for example where the sole intent of the offensive statement is to insult.”[13]

However, it could be difficult to distinguish between statements of facts and value judgments. The ECtHR experienced that most of the time the national courts rank the expressions about public persons in the category of statement of fact producing a strong restriction on freedom of expression. For this reason, the ECtHR established that the value judgments also need some factual basis because value judgments also can be excessive if they don’t have any. The Court argues that in those circumstances, the state’s interferences can be proportional.[14] The new subcategory – value judgment based on facts – is protected by freedom of expression. The necessity of the link between the value judgment and its supporting facts can be different from case to case. The Court decides on this connection in the light of the specific circumstances of the cases.[15]

Besides the abovementioned questions, there are other circumstances of these cases that are examined by the Court. In the Strasbourg Court’s practice the subject of the expression is significant. According to the Court’s case-law, those expressions which deal with public interest or contribute to the public debate are protected by Article 10 at the highest level.[16] The reason of this is that a democratic society can work only if free and open debate regarding matters of public interest is guaranteed.

The Court also observes some other relevant criteria in the balancing exercise regarding expressions about public persons, such as: how well known is the person concerned and what is the subject of the report; the prior conduct of the person concerned; the method of obtaining the information and its veracity; the content, the form and the consequences of the publication; and the severity of the sanction imposed.[17]

The Court consequently reiterates that in these cases criminal sanction only in exceptional circumstances can be proportional and would be compatible with the Article 10 of the Convention.[18]

The New Challenges of Internet and Social Media

In general, the Strasbourg Court stated that Article 10 of the Convention applies to the Internet as means of communication. The Court also noted that in light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and in facilitating the dissemination of information generally.[19] At the same time, the Court also assessed that there are higher risks of harm regarding human rights posed by contents on the Internet than in traditional press media.[20] According to the Court’s point of view, this characteristic of the Internet justifies some restrictions on freedom of expression. Regarding defamation cases, the Court established that freedom of expression on the Internet also covers satire and criticism. However, Article 10 doesn’t guarantee unlimited freedom of expression, especially when the published expression may cause serious harm to the reputation and rights of other individuals. For this reason, the national courts have to make a fair balance between these two rights.[21]

In the recent past, in a case against Iceland the Court had to review such a balancing exercise of the national authorities. In the case of Egill Einarsson v. Iceland[22] the Court had to make a decision on whether an insulting Instagram post about a well-known person is protected by freedom of expression or infringes the right to respect for private life.

The applicant was a public figure in Iceland, who for years, published articles, books, blogs, appeared in films, on television and other media. In 2011, an 18-year-old girl reported to the police that he and his girlfriend raped her. In 2012 another accusation was made by a woman against Mr. Einarsson: the accuser stated that he committed sexual offence against her a few years earlier. In 2012, the Public Prosecutor dismissed the procedure because the evidence was not sufficient to lead to a conviction.

Afterwards, a leading newspaper in Iceland published an interview with Mr. Einarsson, in which the rape accusation against him and its falsity was discussed. His picture was published on the front page of the magazine. On the same day, Mr. X published an altered version of the front-page picture of the magazine with the subtitle “Fuck you racist bastard” on his account on Instagram, the well-known online picture sharing application. Mr. X had drawn an upside down cross on Mr. Einarsson’s forehead and written “loser” across his face. Mr. X. believed that his Instagram account was private and the post would be available only to his followers. However, it turned out that the account was public. The following day, a newspaper published an online article about the post and the original interview.

Afterwards, Mr. Einarsson lodged criminal defamation proceedings against Mr. X. The national courts found that Mr. X’s post as a whole contained his opinion about Mr. Einarsson and it had been a part of general public debate because Mr. Einarsson was a well-known person in Iceland and he had to accept being a subject of public discussion. The national courts considered the post as a value judgment and decided that it is protected by freedom of expression.

Mr. Einarsson turned to the Strasbourg Court and complained that the decisions of the national courts violated his right to respect private life guaranteed by Article 8 of the Convention. He stated that Mr. X.’s post was a statement of fact because he accused Mr. Einarsson of rape, even though he had known that the case against him was dismissed by the prosecutor. He argued that the Instagram post was a factual statement because it is possible to prove its falsity.

The Government argued that this case was different from cases that concerned the media publishing information about individuals and therefore the principles created previously by the Court could not be applied in the same way in the current case. The Government pointed out that the questioned post was published by an individual who wanted to express his value judgment about a public figure. Accordingly, the domestic courts applied the standards in conformity with the Convention.

The Court first reiterated the above-mentioned relevant general principles regarding balancing between freedom of expression and reputation and the Internet.

After these considerations, the Court evaluated the following circumstances of the case. The Court stated that the limits of acceptable criticism are wider in this case because the applicant was a well-known person in Iceland. The Court also agreed with the domestic courts’ findings that the applicant’s views attracted attention, and that there was a public discussion regarding the complaints against him regarding sexual violence and he participated in it. However, the Court stated that the term “rapist” has an objective and factual nature. The statement was a serious nature and capable of damaging the applicant’s reputation. The Court argued that even disputed public persons do not have to tolerate being publicly accused of violent criminal acts without such statements being supported by facts.

The Court established that domestic courts failed to strike a fair balance between the applicant’s reputation and Mr. X’s right to freedom of expression. The Court held that there has been a violation of Article 8 of the Convention. Two judges wrote dissenting opinions and stated that the national courts struck a fair balance between the conflicting rights. It shows that there is a discussion between the judges regarding the measure of freedom of expression on the Internet.


This paper summarized the well–distinguished system of criteria of the Strasbourg Court for making decisions regarding expressions about public persons and pointed out the new challenges in connection with such expressions on the Internet, especially social media. As we have seen, the Strasbourg Court perceived that the Internet as a new media has several different features compared to traditional media. Consequently, the Court started to examine these characteristics and to interpret the Convention’s articles with respect to them. However, based on the analysis of the above-mentioned case, it seems that the Court’s practice is not well-balanced yet in this regard. In my opinion, the Court didn’t evaluate sufficiently the characteristics of the social media and the significance of the posts on it in this case.

My conclusion is that the Court should consider carefully its own earlier measures and it should try to find an appropriate way to apply them in these new circumstances or try to find new measures in connection with social media. In my opinion, the Court can reach this aim using the abovementioned techniques of precedent-based adjudication.


Author: Éva Balogh, Assistant Professor, University of Debrecen, Faculty of Law

[1] See more detailed Ash, Timothy Garton (2016): Free Speech, Ten Principles for a Connected World. New Haven, London: Yale University Press, pp. 7-72.

[2] Barendt, Eric (2007): Freedom of Speech. Oxford: Oxford University Press, pp. 451-458

[3] Wildhaber, Luzius (2000): Precedent in the European Court of Human Rights. In: Mahoney, Paul–Matscher, Franz–Petzold, Herbert–Wildhaber, Luzius (eds.): Protecting Human Rights: The Euroepean Perspective. Studies in memory of Rolv Ryssdal. Köln – Berlin – Bonn – München: Carl Heymanns Verlag KG, pp. 1538-1545.

[4] Lingens v. Austria, Judgment of 8 July 1986. § 42.

[5] Lingens v. Austria, Ibid. § 46.

[6] Keller v. Hungary, Decision as to the Admissibility of Application no. 33352/02 by László Keller against Hungary, 4 April 2006.

[7] Nilsen and Johnsen v. Norway, Judgment of 25 November 1999. § 49.

[8] Lepojić v. Serbia, Judgment of 6 November 2007. §§ 77–78.

[9] Niskasaari and Otavamedia Oy v. Finland, Judgment of 23 June 2015.§ 58.

[10] Lingens v. Austria, Ibid. § 46.; Oberschlick v. Austria (No. 1.), Judgment of 23 May 1991. § 63.

[11] Oberschlick v. Austria (No. 2.), Judgment of 1 July 1997. §§ 31–34.; Lopes Gomes da Silva v. Portugal, Judgment of 28 September 2000. §§ 34–37.

[12] Klein v. Slovakia, Judgment of 31 October 2006. § 48.

[13] Uj v. Hungary, Judgment of 19 July 2011. § 20.; Genner v. Austria, Judgment of 12 January 2016. § 36.

[14] De Haas and Gijsels v. Belgium, Judgment of February 24 1997. § 47; Oberschlick v. Austria (No. 2.), Judgment of July 1 1997. § 33; Jerusalem v. Austria, Judgment of February 27 2001. § 43.

[15] Feldek v. Slovakia, Judgment of July 12 2001. § 86.

[16] White, Robin C.A.–Ovey, Clare (2010): The European Convention on Human Rights, Fifth Edition. Oxford-New York: Oxford University Press, 428.; Uj v. Hungary, Ibid. §§ 23-24.

[17] Axel Springer AG v. Germany, Judgment of 7 February 2012. § 89–95.; Ungváry and Irodalom Kft. v. Hungary, Judgment of 3 December 2013, § 45.

[18] Raichinov v. Bulgaria, Judgment of 20 April 2006. § 50.

[19] Times Newspapers Ltd (nos. 1 and 2) v. the United Kingdom, Judgment of 10 March 2009. § 27.

[20] Editorial Board of Pravoye Delo and Shtekel v. Ukraine, Judgment of May 5 2011. §§ 63-64.

[21] Fatullayev v. Azerbaijan, Judgment of April 22 2010. § 102.

[22] Egill Einarsson v. Iceland, Judgment of 7 November 2017., See also Milkaite, Ingrida (2018): Egill Einarsson v Iceland: the Court deals with an offensive Instagram post. In: Strasbourg observers, January 19.

Kategória: Fundamental rightsHuman rightsFreedom of Speach
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