—Michèle Finck, University of Oxford
A shockwave went through the world of those practitioners and academics that focus on both on European Union (‘EU’) law and on the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’) last week. The reason for this is the opinion of the Court of Justice of the European Union (‘CJEU’) on the draft accession agreement (‘DAA’) according to which the EU was to join the ECHR. To the surprise of many if not all, the DAA was declared incompatible with the European Treaties. The Court’s approach stands in stark contrast with the previously delivered opinion of Advocate General Kokott and the submissions of the Member States (with the exception of Luxembourg, Malta, Croatia and Slovenia, which refrained from sharing their observations on the matter) and the other EU institutions. Contrary to the CJEU, they all concluded that the DAA was compatible with EU law. This blog entry cannot do justice to the extreme complexity of the opinion, nor the issue of accession more generally. Its aim consists solely in providing an overview of the opinion, also for those unfamiliar with EU and ECHR law.
The background
The ECHR is an international agreement concluded in the Council of Europe, which entered into force in 1953. The EU, whose origins also date back to the post WWII period, is a politico-economic union of 28 Member States located on the European continent, which over time has developed a fundamental rights catalogue composed of a variety of sources. All EU Member States are contracting parties to the ECHR. Given that the ECHR and the EU partly overlap as regards history, membership and objectives, the question whether the EU should accede to the ECHR and hence be formally bound by this Convention has long loomed in the background.
In 1996, the CJEU declared in opinion 2/94 that, as EU law stood at the time, the EU had no competence to accede to the ECHR. The 2009 Lisbon Treaty amended Article 6 of the TEU, and now states that the EU is to accede to the ECHR. Protocol No 8 of the same Treaty specifies that accession must fulfil certain conditions to make provision for the preservation of specific characteristics of the EU and EU law. EU competences and the powers of its institutions should not be affected. According to Douglas-Scott accession would have had three main benefits (i) it would have underlined the EU’s concern for human rights, (ii) addressed criticisms about double standards as the EU requires that all of its Member States accede to the ECtHR but has not acceded itself, and (iii) would alleviate the situation of individuals that suffer breaches of the ECHR by the EU institutions. Negotiations started in 2010 and ultimately resulted in the DAA, which the Commission asked the CJEU to give its opinion on in 2013, pursuant to Article 218 (11) TFEU.
Opinion 2/13
Opinion 2/13 declares the DAA incompatible with EU law. The CJEU, sitting as a full court (however, as Scheinin has noted one of the judges was absent for unknown reasons) opens its analysis with the statement that the founding treaties of the EU, unlike ordinary international treaties, established a new legal order, possessing its own institutions, for the benefit of which the Member States thereof have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only those States but also their nationals. The fact that the EU has a new kind of legal order, the nature of which is peculiar to the EU, its own constitutional framework and founding principles, a particularly sophisticated institutional structure and a full set of legal rules to ensure its operation, has consequences as regards the procedure for and conditions of accession to the ECHR.
The CJEU’s main grounds of objection regarding the accession agreement can be summarised as follows. They all concern either the perceived threat to the autonomy of EU law or the exclusive jurisdiction of the CJEU.
External control: After accession, the ECHR would ‘form an integral part of EU law’ and be binding upon EU institutions. As a consequence, the EU would ‘be subject to external control to ensure the observance of the rights and freedoms.’ The CJEU recalled its finding in Kadi that an international agreement may not have an ‘adverse effect on the autonomy of the EU legal order’. In particular accession should not bind ‘the EU and its institutions, in the exercise of their internal powers, to a particular interpretation of the rules of EU law.’
It should be noted that the EU now has its own Charter of Fundamental Rights (‘the Charter’) that acquired the same legal force as primary law in 2009. The EU must respect these rights and the Member States must too, when they are implementing EU law. While accession would render the EU subject to external control to ensure the observance of the ECHR rights and freedoms, the same would not be true as regards the interpretations the CJEU undertakes with respect to EU law, including the Charter. The CJEU observes that ‘it should not be possible for the ECtHR to call into question the Court’s findings in relation to the scope ratione materiae of EU law, for the purposes, in particular, of determining whether a Member State is bound by fundamental rights of the EU.’ According to the CJEU, the autonomy of EU law means that ‘the interpretation of those fundamental rights be ensured within the framework of the structure and objectives of the EU.’
Higher Standards: Article 53 of the Charter, as interpreted by case law, in particular the recent Melloni judgment, clarifies that the application of national fundamental rights standards must not compromise the level of protection provided for by the Charter or the primacy, unity and effectiveness of EU law. As Article 53 ECHR allows the contracting parties to the ECHR to lay down higher standards of protection than those guaranteed in the Convention, ‘that provision should be coordinated with Article 53 of the Charter (…) so that the power granted to Member States by Article 53 of the ECHR is limited — with respect to the rights recognised by the Charter that correspond to those guaranteed by the ECHR — to that which is necessary to ensure that the level of protection provided for by the Charter and the primacy, unity and effectiveness of EU law are not compromised.’ The draft agreement does not however contain any provision to this effect. This reasoning has been strongly criticized by Michl.
Mutual Trust: The CJEU considers accession to constitute a threat to the mutual trust between Member States. As per the Court, ‘the principle of mutual trust between the Member States is of fundamental importance in EU law, given that it allows an area without internal borders to be created and maintained.’ This implies the (rebuttable) presumption on behalf of one State that another State observes fundamental rights. Accession would however require the EU and the State to check whether another State observes fundamental rights so that ‘accession is liable to upset the underlying balance of the EU and undermine the autonomy of EU law’.
Jurisdiction: Article 344 TFEU provides that Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein. This means that an international agreement cannot affect the allocation of powers inherent to the Treaties or the autonomy of the EU legal order. The DAA however allows the Member States or the EU to submit an application to the ECtHR regarding alleged violations of the ECHR by a Member State or the Union in relation to EU law.
Threat to the preliminary reference procedure: under this procedure, enshrined in Article 267 TFEU, national courts can refer questions for preliminary ruling to the CJEU as regards the interpretation of EU law. The CJEU notes that this procedure is the keystone of the EU judicial system, which sets up an intra-EU judicial dialogue, and ‘has the object of securing uniform interpretation of EU law.’ The ECtHR however permits States’ highest courts and tribunals to request advisory opinions on questions of principle with respect to the interpretation of the rights and freedoms protected under the ECHR. The CJEU notes that ‘since the ECHR would form an integral part of EU law’ this mechanism could ‘notably where the issue concerns rights guaranteed by the Charter corresponding to those secured by the ECHR — affect the autonomy and effectiveness of the preliminary ruling procedure.’
The Co-Respondent Mechanism and the Procedure for Prior Involvement: According to the co-respondent mechanism, the EU can become a party in a case addressed to a Member State with the aim of allowing the EU to take part in proceedings concerning its laws. This, the CJEU found, could require an expression on behalf of the ECtHR on the respective powers of the EU and the States. The same conclusion was reached as regards responsibility. The DAA provides for joint responsibility between the EU and the State but also that the ECtHR may decide otherwise on the basis of the respective reasons provided. As regards the procedure for prior involvement, the DAA foresaw that the CJEU could be involved in cases in which it has not yet assessed the compatibility with the ECHR of EU law. The CJEU did not accept this as it would be ‘tantamount to conferring on [the ECtHR] jurisdiction to interpret the case-law of the Court of Justice.’
The Common Foreign and Security Poilcy (‘CFSP’): The CJEU noted that pursuant to the DAA, the ECtHR would be given jurisdiction over CFSP measures that the CJEU itself is not competent to hear. It states that this ‘would effectively entrust the judicial review of those acts, actions or omissions on the part of the EU exclusively to a non-EU body, albeit that any such review would be limited to compliance with the rights guaranteed by the ECHR.’
Reactions to the Opinion:
The CJEU was largely concerned with its own standing and competence, to the detriment of human rights protection. As O’Neill noted, the decision ‘appears to be more about the Court of Justice’s fears about its constitutional position rather than about the closing of any gap in human rights protection in the EU.’ The International Commission of Jurists stated that the opinion constitutes a ‘major setback for human rights in Europe’ and ‘presents a serious challenge to the EU’s commitment to the further realisation of human rights in Europe.’
Peers took issue in particular with the ‘mindboggling’ objection regards the CFSP, which he describes as going beyond
‘setting a dividing line over which Court has jurisdiction to interpret EU law: to repeat, the CJEU’s position is that if it can’t have jurisdiction over CFSP, then no other international court can either. In short since it isn’t allowed to play, it’s taking the football away from everyone else. It’s the judicial politics of the playground. But it could have serious consequences, leaving the victims of serious human rights violations without an effective remedy at international level.’
Opinion 2/13 has accordingly been strongly criticized. This raises the question about the future of accession. Article 6 TEU obliges the EU to accede to the ECHR. Lock however notes that in light of the terms of opinion 2/13 ‘may make accession a practical impossibility.’ Peers moreover questioned whether, in light of the DAA, it is still worth advocating accession. He notes that in the terms defined by opinion 2/13, accession ‘could only appeal to those who don’t like human rights very much’ as under the terms set out, the EU may nominally become a signatory to the Convention, yet remain free to do as it wishes with respect to human rights issues. Besselink has called for political disobedience, arguing that the EU should accede to the ECHR notwithstanding the CJEU’s negative opinion.
Opinion 2/13 hence confirms one of the universal truths of humanity: anyone with power is reluctant to let go of it.
Suggested citation: Michèle Finck, The Court of Justice of the European Union Strikes Down EU Accession to the European Convention on Human Rights: What Does the Decision Mean?, Int’l J. Const. L. Blog, Dec. 28, 2014, available at: http://www.iconnectblog.com/2014/12/the-court-of-justice-of-the-european-union-strikes-down-eu-accession-to-the-european-convention-on-human-rights-what-does-the-decision-mean/
Comments
3 responses to “The Court of Justice of the European Union Strikes Down EU Accession to the European Convention on Human Rights: What Does the Decision Mean?”
[…] Treaties. There have already been several analyses of the decision: for helpful summaries see Michèle Finck on the International Journal of Constitutional Law blog and David Hart […]
Thank you for this clear and helpful blog. You understand the ‘notwithstanding’ option I have suggested as a way out of the accession quagmire to be ‘a call for political disobedience’. I do not take that to be a matter of political disobedience at all. If those terms would be appropriate,which I think is not the case, I would consider it an act of consistent obedience to the political and legal commitment undertaken by the EU and its member states in the EU Treaty (by the EU member states also by their ratification and approval of Protocol 14 ECHR) to accede to the ECHR, as I tried to make clear in my original blog. But there are further considerations of a political, legal and constitutional nature which, in my opinion, make it inappropriate to speak in terms of ‘disobedience’ or ‘obedience’.
The starting point must be the acknowledgment that there is a disagreement between on the one hand the member states, the EP, the Council and the Commission and on the other hand the ECJ as to the compatibility of the draft accession agreement with the EU Treaties – ‘obedience’ or ‘disobedience’ of one to the other is not helpful then.
In terms of political practicality, I would consider a ‘notwithstanding protocol’ a manner of resolving an otherwise, both in EU constitutional, national constitutional terms and diplomatically intractable problem.
Legally, the situation is comparable to scrutiny of the constitutionality of treaties as we find it in many European states. If an incompatibility is found, the usual way is to change the constitutional provisions that stand in the way of ratifying the relevant treaty. One way is to amend the text of the relevant provision (or provisions) in order to make them consonant with the provisions of the treaty to which one wishes to become a party. Another way is to provide at the level of the constitution itself for the ratification of the treaty, if necessary with an explicit ‘notwithstanding’ clause – a standard example is Ireland as regards EU Treaties and their amendments, but France has sometimes done something similar. In some EU member states, it is not even necessary to explicitly amend the constitution to do so since a notwithstanding clause is already provided for, as is the case in Finland, Portugal, and somewhat differently in the Netherlands. I find it hard to consider these ‘acts of political disobedience’ – quite to the contrary, they are aimed at creating and guaranteeing openness towards the European or international legal order.
More importantly, in constitutional terms, the situation that has arisen is one which concerns by definition the question of whether and how to change the law – Art. 218 TFEU is quite explicit on this.
Somehow commentators think that if the ECJ has spoken, it has done so for eternity and amendment of the EU Treaties in the sense of Art. 218 (11) TFEU is only possible by means of a codification of what the Court has said. I think that is not what the EU constitution prescribes. When it comes to changing the law and the treaties, it is not the ECJ but the Member States who are masters of the Treaties, and masters of the EU constitution. In case of reasonable disagreement over the meaning of the Treaties in light of larger constitutional concerns in a situation which must be resolved through a change of the law, there is no necessity that the views of a court on the lex lata instead of the democratically legitimated organs of member states prevail de lege ferenda.
‘Obedience’ or ‘disobedience’ are therefore not the appropriate categories in which to discuss the present situation.
Regards,
Leonard
I actually do agree with you. I didn’t mean to suggest that accession would be ‘political disobedience’ as a general matter, only that in proceeding to accession there would be a political disregard of at least some of the concerns expressed in the opinion. Accession would of course give expression to the obligation embodied in Article 6(2) TEU.