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EU Accession to the ECHR: Ante Portas or a Mirage on the Horizon?

Christina Eckes, University of Amsterdam, reviewing Vasiliki Kosta, Nikos Skoutaris, and Vassilis Tzevelekos, The EU Accession to the ECHR (Hart Publishing 2014, 402pp)

Whether and when the European Union (EU) will accede to the European Convention on Human Rights (ECHR) remains to be seen. What is certain is that the possibility of EU accession to the ECHR and the relationship between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have been the subject of intense academic discussion for decades.

This book is a timely, well-researched and well-argued contribution to this body of literature. The Committee of Ministers took note of the draft accession agreement on 11 September 2013. Hence, the process of accession has just entered into a new stage, reaching a semi-definitive agreement that is worth analyzing and debating. At the same time, the date of accession is far from definitive with a request for an opinion of the CJEU pending and with the requirement of ratification of all 28 EU Member States.

From inter-disciplinarity to intra-disciplinarity

The book aims to offer an intra-disciplinary approach to accession, combining the perspectives of constitutional law, public international law and EU law. Indeed, legal scholarship is divided into subfields and sub-subfields that often conduct isolated debates amongst scholars with the same background and interest. The book is hence a welcome attempt to bridge these divides and to approach a topic of relevance in different subfields from the perspectives of several of these subfields. However, the next step and this is a step the book does not (fully) accomplish, would be to engage the different perspectives in a fruitful intra-disciplinary debate. The book consists of 23 individual chapters that indeed tackle the EU’s accession from the standpoint of three different legal subfields; yet, there is very little exchange between these different chapters or perspectives.

The structure

The book is divided into six parts, addressing different aspects of accession. It progressively zooms out, starting with a focus on specific institutional arrangements, including the co-defendant mechanism and prior involvement, to then slowly broaden the view to meta-questions such as pluralism to multilevel protection of human rights within Europe.

The technical side of accession

Part I starts with technical and procedural issues. It examines the institutional arrangements, addresses an issue that has been central to the accession negotiations: the autonomy of the EU. Andrew Drzemczewski is the author of two chapters in this part. Chapter two takes us through the different stages of the accession process and points out the most relevant issues of the negotiations. Chapter five discusses the election of the EU judge to the ECtHR. Both chapters give a good overview of the relevant facts and rules. In Chapter three Aida Torres Pérez essentially makes an argument against the necessity of the prior involvement mechanism, which allows the CJEU to assess the compatibility of the act challenged before the ECtHR with the rights at issue if the CJEU has not had this opportunity before. It is an argument that the EU does not require special treatment, based in its core on the observation that the ECtHR in any event would not rule on the validity of EU law – as it does not rule on the validity of national law. This stands in sharp contrast to Nikos Vogiatzis analysis in the following chapter, which concludes that the prior involvement mechanism is necessary indeed to protect the autonomy of the EU legal order and to avoid potential gaps in the participation, accountability and enforceability of the Convention system. His particular focus is the right to a fair trial (Article 6 ECHR) and the right to an effective remedy (Article 13 ECHR) as opposed to the merged “right to an effective remedy and to a fair trial” under the EU Charter of Fundamental Rights (Article 47).

Part II deals with a specific issue that is of particular concern to both EU law and public international law: the allocation of responsibility of the EU and its Member States after accession. Two scholars of international law, Jean d’Aspremont (Chapter six) and Arman Sarvarian (Chapter seven), and one with a background in EU law, Andrés Delgado Casteleiro (Chapter eight), discuss international responsibility after accession. All three offer interesting insights and do not shy away from drawing clear conclusions on possible future developments; yet they firmly stick to the literature of their discipline. Only chapter eight integrates some public international law sources in its EU perspective. However, the responsibility of the EU and its Member States under mixed agreements is an example of an area where the debates could greatly benefit from a combined approach contrasting and comparing EU and international law. The specific contribution of chapter six is its analysis of the impact on the development of international law, while chapter eight demonstrates how the draft accession agreement “proceduralizes” the issue of allocating responsibility between the EU and its Member States. This means in actual fact the agreement avoids giving a definite answer and leaves the decision to the workings of the co-decision mechanism in the judicial challenges of the future.

An increasingly multilayered human rights architecture and its challenges

Part III moves to the broader meta-issues of how the multiple actors may be accommodated in Europe’s multi-level system of human rights protection. Particularly chapter 10 by Giuseppe Martinico and chapter 11 by Monica Claes and Šejla Imamovic address an issue that figures less prominently in the accession debate: the role of national courts. Chapter 11 goes well beyond naming the usual suspects (German Constitutional Court and co.) and introduces case law from different national jurisdictions. The geographical breadth of its sources is commendable; yet, the material could have been introduced in a more systematic matter. It remains unclear why these judicial voices are heard and not others? What is the situation in countries that are not mentioned? Also, a more detailed comparison contrasting how specific courts deal with EU law and the ECHR might also have been enlightening. John Morijn (chapter 9) traces in chapter nine the double track of fundamental rights protection pursued by the Lisbon Treaty: on the one hand the internalization of external Convention system by the EU Charter of Fundamental Rights and on the other, an external layer of review by the ECtHR. He emphasizes the relevance of taking into account the practices of applying human rights prior to judicial involvement. The latter is certainly an interesting point; yet not one that is followed up by this collection, which is centered on judicial practices and court interaction.

Aren’t we all pluralists nowadays?

Part IV is entitled “pluralism in the new order” and aims to tackle the discussion on the implications of an increasingly multi-layered constitutional structure that also runs explicitly or implicitly through the other parts. In the light of the title it is perhaps surprising that the authors examine the “limits of pluralism” and even its “dark side”. Olivier De Schutter first offers a detailed analysis of the Bosphorus doctrine post-accession (chapter 12). Considering different scenarios – some are more likely than others – he demonstrates the ability to conduct open-minded intellectual exercises. Robert Harmsen (chapter 13) then discusses the geopolitical implications of the EU’s accession. The final chapter 14 in this part, written by Lucas Lixinski, directly addresses two classic issues in a multilayered structure: fragmentation and constitutionalisation. It asks whether the result within Europe is “pluralism lite”?

Human rights as the theme that connects areas of law as diverse as trade, competition, procurement and equality

Part V addresses the implications of the EU’s accession to the ECHR in specific legal areas, such as trade conflicts (Chapter 15 by Bernard Hoekman and Petros Mavroidis), due process rights in EU competition law (Chapter 16 by Albert Sanchez Graells), public procurement (Chapter 17 by Aris Georgopoulos), European equality law (Chapter 18 by Panos Kapotas), and “European consensus” (Chapter 19 by Kanstantsin Dzehtsiarou and Pavel Repyeuski). Chapter 19 in particular considers the interpretational shift from classifying EU law as international law (pre-accession) to classifying it as domestic (national) law (post-accession). This is certainly an interesting aspect relevant both to scholars of international as well as EU law that has so far not attracted much attention.

Instead of a conclusion

Under the title “Instead of a Conclusion” Part VI contains four chapters written by the well-known experts on this topic, a former judge at the ECtHR, Christos Rozakis, and a former judge of the CJEU, Christiaan Timmermans, as well as a current judge of the ICJ, Giorgio Gaja, and an eminent scholar of EU law, Bruno de Witte. Yet the reader closes the book wanting for a conclusion, in which the editors critically engage with the 23 chapters that offer a comprehensive treatise of a complex multifaceted topic and relate the different legal perspectives to each other. We are left with the feeling that the team of three young editors did not dare to comment on, leave alone challenge, the views of the authors but rather gave the last word to a group of more eminent writers. Christos Rozakis (chapter 20) explains the limitations of the existing methods to avoid fragmentation. He ends on an overall positive note as regards the future challenges to achieve harmonization. Christiaan Timmermans (chapter 21) picks up a number of assertions made in the accession debate, including in the preceding chapters, and critically reflects on them in a refreshingly straightforward manner. These include the need for a prior involvement mechanism and the continuous application of the Bosphorus doctrine. Giorgio Gaja (chapter 22) takes a closer look at the co-respondent mechanism and the allocation of responsibility under the draft accession agreement. For the sake of an exchange of perspectives it would have been helpful if this chapter had engaged with the earlier chapters on responsibility in part II of the book. Bruno de Witte (chapter 23) ends the collection with “five items for the European Union’s human rights agenda”. He commendably refers to several of the previous chapters and puts his finger on issues that the procedural arrangements of the draft accession agreement, rather than resolving them in substance, “pamper over”, such as the allocation of responsibility within the EU’s own multi-layered structure.

The End

To finish, I will do what I have just criticized in the reviewed book. Instead of offering an overall conclusion I will return to the three themes that run across this book: multi-layered constitutional structures, judicial discourse and diverging levels of protection. Different authors make a contribution to exploring these themes. The difficulties posed by the increasing number of layers in Europe’s fundamental rights protection architecture lies at the center of the accession debate and at the center of this book, in the analysis of the specific institutional and procedural set ups suggested in the draft accession agreement, as well as in the debate of the meta questions of pluralist and constitutionalist tendencies in Europe. Indeed these difficulties return in nearly ever chapter, for example in form of a discussion of the problem of ambiguity or legal uncertainty (e.g. chapters eight and nine), fragmentation (e.g. chapters 14 and 20), and conflict (e.g. chapter 4). Judicial discourse and interpretation techniques building on the margin of appreciation and the European consensus are some of the suggested ways of reconciling inconsistencies. Yet in certain chapters the realization shines through that consistency for the sake of consistency may also become problematic.

Most book reviews start by pointing to the value of the book or at least praising the relevance of the topic it covers and finish by recommending the book to the interested reader. In the middle part they offer some critical reflections on what could have been done better, where the author(s) erred or what they neglected. This book review is no exception. The book provides the reader with an excellent understanding of the problems and possibilities of the EU’s accession to the ECHR. It is a timely contribution to an ongoing debate that equips the reader with the necessary knowledge and insights to form an opinion both on the procedural and institutional aspects of the EU’s accession as well as on the substantive issue of where a permissible level of diversity of human rights protection in Europe may lie and how this level may legally be achieved and maintained.

Suggested Citation: Christina Eckes, Book Review, EU Accession to the ECHR: Ante Portas or a Mirage on the Horizon?, Int’l J. Const. L. Blog, Tuesday, Nov. 11, 2014, available at: http://www.iconnectblog.com/2014/11/eu-accession-to-the-echr-ante-portas-or-a-mirage-on-the-horizon

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Published on November 11, 2014
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