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Opinion 2/13 of the Court of Justice of the European Union

Amanda Spalding, PhD Candidate, King’s College London, The Dickson Poon School of Law – Teaching Fellow, SOAS, School of Law

The Court of Justice of the European Union (CJEU) has finally given its opinion as to the validity of the draft agreement on the accession of the European Union to the European Convention of Human Rights. Unfortunately, it found that the draft agreement is not compatible with EU law. This is a significant set-back to an already complex and drawn-out process of accession.

Background

On the 1st of December 2009 the new Treaty on the European Union came into force. Article 6(2) of that Treaty provides that the European Union shall accede to the European Convention on Human Rights (ECHR). In July 2010 negotiations began between the Council of Europe and the European Union in the form of an informal working group to draft an agreement regarding the accession of the EU to ECHR. An initial draft agreement was made available in October 2011 but a final draft agreement was not reached until April 2013 and the Commission asked the CJEU for its opinion on the agreements compatibility with EU law in July 2013.

Reasons for Rejecting the Draft Agreement

The CJEU gave many reasons for the draft agreements incompatibility with EU law. They shall be outlined below:

  1. Coordinating the ECHR and the Charter of Fundamental Rights

The CJEU noted that Article 53 of the ECHR gives it’s contracting parties the power to lay down higher standards of human rights protection than provided by the Convention. Where rights recognised by the Charter correspond to those guaranteed by the ECHR, the power granted to Member States under Article 53 ECHR must be limited 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 CJEU found there was no provision in the draft agreement providing for such a coordination. This protects the principle laid down in the Melloni case that Member States could not have higher standards than the Charter of Fundamental Rights were the area of relevant law has been fully harmonized.

  1. Mutual Trust Principle Undermined

The CJEU was also concerned that the principle of mutual trust, particularly in the area of freedom, security and justice (AFSJ) between Members States of the EU, a principle of fundamental importance to the EU, could be undermined by accession. When implementing EU law, a Member State may be required to presume that fundamental rights are in principle observed by other Member States. In contrast, the ECHR would require Member States to check other Member States had actually observed fundamental rights in that context. The CJEU believes this is liable to upset the underlying balance of the EU and undermine the autonomy of EU law. The Court found there was no provision in the draft agreement which prevented this.

  1. The Preliminary Ruling Procedure

Protocol No 16 to the ECHR allows the highest courts and tribunals of contracting parties to request the European Court of Human Rights (ECtHR) to give an advisory opinion on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto. The EU is not becoming a signatory to that Protocol but the CJEU thinks that this procedure may undermine the EU’s preliminary ruling procedure set out in Article 267 TFEU. It fears that when faced with questions concerning the compatibility of EU law with human rights, the highest courts of Member States may prefer to request an advisory opinion from the ECtHR rather than make a preliminary reference to the ECJ.

  1. Article 344 – Interstate dispute settlement

Article 344 TFEU provides 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. The fact that the draft agreement does not exclude the possibility that the ECtHR may be used to settle such a dispute meant that Article 344 may be affected by accession. As the CJEU has consistently held that an international agreement cannot affect the allocation of powers fixed by the Treaties or, consequently, the autonomy of the EU legal system, observance of which is ensured by the Court, this affected the agreements compatibility with EU law.

  1. The Co-respondent Mechanism

One of the trickier aspects of the EU’s accession to the ECHR is the fact that although EU law is mostly implemented by Member States, the degree of discretion they have in this implementation varies massively.  This makes allocating responsibility for human rights violations complicated. In response to this problem, the draft agreement provided for the co-respondent mechanism. This mechanism allows the EU and a Member State to become co-respondents in a case, rather than having one as an intervening third party – this means that the co-respondents are both parties to the case and bound by the judgment. However to become a co-respondent, a contracting party must either accept an invitation from the ECtHR or the ECtHR must make a decision upon the request of that Contracting Party.  In making this decision or extending this invitation, the ECtHR would essentially be making a judgment on the division of competences between the EU and the Member States. In deciding whether both co-respondents are liable for any human rights violation would also be a judgment on the division of competences. Therefore the CJEU found that allowing the ECtHR to make such judgments would risk adversely affecting the division of powers between the EU and its Member States.

  1. Prior judgment by the CJEU

In an attempt to preserve the autonomy of EU law, the ECtHR may only rule on a case concerning EU law once the CJEU has ruled on that issue of EU law. However the Court was concerned that the draft agreement did not reserve, to the CJEU, the right to decide whether the EU law matter had been dealt with. If the ECtHR was allowed to make that ruling then the ECtHR would be essentially given the jurisdiction to rule on the interpretation of ECJ case-law. Secondly, the draft agreement states that the Court may have the chance to rule on the validity of an EU provision in respect to fundamental rights guaranteed by the Charter. The CJEU believes that this excludes the CJEU from ruling on the interpretation of the provision under this procedure and therefore the ECtHR may interpret the EU provision. The CJEU sees this as a breach of its exclusive jurisdiction over EU law and believes that may adversely affect the competences of the EU and the powers of the Court.

  1. Judicial Review of the Common Foreign and Security Policy (CFSP)

At present, the CJEU has limited jurisdiction over acts adopted under the CFSP. However on the basis of accession as provided for by the draft agreement, the ECtHR would be empowered to rule on the compatibility with the ECHR of certain acts, actions or omissions performed in the context of the CFSP including those that the CJEU cannot rule on. Thus exclusive judicial review of part of the EU body would be given to a non-EU body. The CJEU therefore found that the agreement envisaged fails to have regard to the specific characteristics of EU law with regard to the judicial review of acts, actions or omissions on the part of the EU in CFSP matters.

Consequences

This Opinion represents a significant set-back for the accession process. Some of the CJEU’s objections, such as the CFSP issues, probably require an EU treaty change to be fixed, a potentially long and complicated process. The draft agreement itself was the result of three years of negotiations and redrafting. It is possible that many non-EU, ECHR contracting parties will not be amenable to re-opening negotiations to suit the CJEU’s opinion. Indeed, governments in Member States within the EU itself, such as the UK, who are debating whether to change their relationship with both the EU and the ECtHR may also be unwilling to re-negotiate. Indeed Steve Peers has noted the similarity between this judgment and the UK’s attitude. ‘In fact, in many respects the Court’s judgment is essentially a more articulate and EU-specific version of the document recently produced by the UK’s Justice Minister, which sought changes to the law to ensure that the UK would be free to do as it wished as regards human rights issues, while (possibly) nominally remaining a signatory of the ECHR.’[1]

Article 6 (2) TEU requires the EU to accede to the ECHR, stating that the EU shall accede, not may accede so undoubtedly there will be much effort made to continue the process but this judgment provides a significant roadblock in the journey to accession.

[1] S. Peers ‘The CJEU and the EU’s accession to the ECHR: a clear and present danger to human rights protection’ 18 December 2014 available at http://eulawanalysis.blogspot.co.uk/2014/12/the-cjeu-and-eus-accession-to-echr.html