Article

Opinion 2/13: Some Further Reflections

Veronica Shleina: LL.B King’s College London, LL.M Candidate University College London

Introduction

In December 2014[1] the CJEU “dropped its Christmas bombshell”[2] declaring the Draft Agreement on the Accession to the ECHR[3] incompatible with EU law, thereby deeming the future accession almost impossible. While some of the concerns that Luxembourg addresses seem plausible, overall the Opinion appears to be a disappointing incarnation of playground politics. It is clear that despite the CJEU’s view, there is a real need for accession.

The Melloni doctrine[4]

Since accession would render the EU bound by the Convention, the first concern is related to the possibility of external control to be exercised by Strasbourg. Luxembourg ruled 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”[5]. It also reiterated that it is not possible for the Member States to rely on Article 53 of the Charter to raise the domestic standard of protection if this would compromise the harmony of EU law. However Article 53 of the ECHR may be used in this way.  Hence, in order to “ensure that the level of protection provided by the Charter and the primacy, unity and effectiveness of EU law are not compromised” there is a need for coordination[6].

It seems that Luxembourg found it particularly worrying that the Melloni doctrine would not be accepted by the domestic courts thereby providing for a higher standard of protection within the Contracting Member States than at EU level which would compromise EU harmonisation. At first glance, this concern is understandable. In Melloni, there was a real attempt to challenge EU law through the invocation of constitutional rights through Article 53 of the Charter, which means that such claims may well arise under Article 53 of the ECHR[7]. According to the Opinion, the Accession Draft Agreement lacks any reassurance that a limit would be imposed on Strasbourg’s excessive power, which could adversely affect the autonomy of EU law.

However, the objection is implausible. First of all, while in some circumstances the Member States may be required to not go beyond the standards provided by the Charter, the Charter itself cannot decrease the standard below the Convention threshold[8]. Thus, the higher standard could be possible on the domestic level by virtue of the ECHR but would fail to be legal under EU law. Spaventa argues that under no circumstances would a clash between the respective articles be possible, as the Convention provision is not obligatory: “Article 53 ECHR provides discretion on Contracting Parties (if they wish they may provide more generous protection). It does not provide an obligation”[9].

Furthermore, the EU would not let what Halberstam calls ‘some abstract human right’[10] prevail over Community law. Indeed, in light of Internationale Handelsgesellschaft it is apparent that in defining the extent of the protection of human rights some leeway for constitutional courts is possible[11]. Even in Melloni itself the Court explicitly stated, “A Member State’s idiosyncratic fundamental rights catalogue cannot undermine the primacy, unity, and effectiveness of EU law”[12]. Halberstam argues[13] that irrespective of the Melloni-type cases, there is no legal foundation for the concern since Article 53 ECHR, by construction, limits other provisions of the Convention. It provides that

 “[n]othing in this Convention shall be construed as limiting or derogating from any of the… rights… which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party.”[14]

Not only would this not grant the Member States any hitherto non-existent rights but it also completely eliminates the possibility of resurrection of any already denied rights. Therefore, since the Member States were refused a higher standard of protection, which would disturb the unity of EU law, prospectively they cannot get one by means of the Convention. If, however, a Member State wishes to argue for a higher standard, it is always possible to review this standard using the Melloni doctrine in a way it was done before.

The Accession

Prima facie, since the CJEU already acts as a human rights adjudicator, it might appear that the accession to the ECHR is redundant. The research carried out by De Búrca suggests that after the Lisbon Treaty, which brought the European Charter on Fundamental Rights into force, references to the ECHR by the CJEU drastically decreased: out of 122 cases involving the Charter, only 20 referred to the ECHR. In contrast, before 2009 the numbers were slightly higher – around 40 cases.[15] Nevertheless, the accession would be beneficial for two reasons: first of all, it would address the important issue of independent supervision; and secondly, rectify the Bosphorus[16] mess.

It is admitted that even in such democracies where the protection of fundamental rights is well-established, there may still be cases of violations. The Convention would, therefore, rectify the errors on the domestic level by providing for the right balance between conflicting interests. Spaventa notes that the accession to the ECHR is important because while assessing the actions of the government, it would bring in a pluralistic element, seeking to ensure that the state does not unduly interfere with rights of individuals.[17] Essentially, this would be beneficial for both the Member States with the so-called good reputation for protection fundamental rights and less mature democracies. The CJEU in its Opinion has overlooked the fact that although the role of Strasbourg would still be residuary, by no means  would it become less valuable; there is still a risk of fundamental rights being sacrificed in favour of economic integration at EU level, calling for enhanced scrutiny.

Thus, currently Luxembourg seems to be biased in using human rights protection as a shield only for the purposes of strengthening market integration. For example, in Carpenter[18], a case that concerned European citizenship, despite the link between the freedom to provide services and EU law being rather weak, the CJEU nevertheless found it to be sufficient to impose the fundamental right to family life. However, this is clearly not the case where fundamental rights act as an obstacle to the operation of the free market. For instance, in cases concerning the European Arrest Warrants[19], or Brussells II/ Dublin II regulations, the court is reluctant to engage with the application of fundamental rights even for the purposes of implementation of EU law[20].

Furthermore, accession would be beneficial in order to ensure the clarity of Strasbourg’s jurisdiction over EU law. Although the EU cannot be made responsible for a violation of the ECHR until it accedes, this does not apply to the individual Member States. Hence, in Matthews[21] Strasbourg was explicit that in areas where the CJEU lacks jurisdiction, it will decide the case and hold the relevant Member State responsible. In Bosphorus, the Turkish airlines leased aircraft belonging to Yugoslav Republic and brought one of them to Ireland for maintenance. The Irish authorities impounded the aircraft on the basis of the EC Regulation 990/93, which was a part of sanctions regime against Yugoslavia. Bosphorus argued a violation of right to property, which the CJEU ruled against. Bopshorus alleged a violation before Strasbourg, which decided that as long as an international tribunal “is considered to protect fundamental rights in a manner which can be considered at least equivalent to that which the Convention provides” a presumption arises in favour of the State’s compliance with the ECHR. This seems to confirm that the Court has competence to review EU Acts only indirectly. As there has been no relaxation of the Bosphorus doctrine so far, the current state of affairs is left in a confusing position.

Conclusion

Thus there are definitely issues with some of the CJEU’s reasoning in Opinion 2/13 and many important reasons for accession to go ahead. Most importantly, accession will ensure consistency between the EU itself and the Member States: at the moment the Union’s perception of rights somewhat contravenes its requirements of protection from the rest of the world. This is apparent from the Union’s heavy reliance on fundamental rights clauses in bilateral agreements as a necessary precondition for the conclusion of such an agreement.

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[1] Opinion 2/13 (2014)  EU:C:2014:2454

[2] Douglas-Scott, S, Opinion 2/13 on EU accession to the ECHR at http://ukconstitutionallaw.org/2014/12/24/sionaidh-douglas-scott-opinion-213-on-eu-accession-to-the-echr-a-christmas-bombshell-from-the-european-court-of-justice/

[3] ECHR hereafter

[4] C-399/11 Melloni v. Ministerio Fiscal (2013) ECR 2013

[5] supra n1 §186

[6] §189

[7] Supra n.9

[8] Art.52(3) CFR

[9] Spaventa, E, A Very Fearful Court?, The protection of fundamental rights in the European Union after Opinion 2/13 [2015] 22, Maastricht journal of European and comparative law, 1, 14

[10] Halberstam, D, It’s the Autonomy Stupid!, German Law Journal, 2015, Vol.16 p.21

[11] [1974]

[12] Supra n.9

[13] supra n.10 pp.21-23

[14] ECHR

[15] De Búrca, G, After the EU Charter of Fundamental Rights: The Court of Justice as the Human Rights Adjudicator?, [2013] 20 Maastricht Journal of European and Comparative Law 168, 169

[16] Bosphorus v Ireland (2005) ECtHR app. No. 45036/98

[17] Supra n.19 p.4

[18] C-60/00 Carpenter v. Secretary of State for Home Department (2002) I-06279

[19] CFD 2002/584/JHA

[20] C-400 PPU MCB (2010) ECR I-8965

[21] Matthews v UK (1999) App No 24833/94