Stefan Reitemeyer and Benedikt Pirker
The present contribution is a translated and somewhat simplified version of an article that appeared in German on 23 March 2015 in the Swiss legal online-journal Jusletter. The authors thank the Jusletter for their kind permission to republish the article and Markus Kern and the European Law Blog’s editorial team for valuable comments on earlier versions.
Readers of this blog will nearly inevitably already have been confronted with this decision. The reactions to the Court’s Opinion have been vivid, to say the least. What did the Court say exactly on this draft agreement for accession to the ECHR? And is the current predominantly negative reaction (see for an exception here) justified? The main aim of the present post is to provide a concise summary of the Court’s findings, but also to provide some early assessment and criticism of the reactions on particular points. After a brief historical introduction to the context of the Opinion, we follow the sequence of analysis of the Court and thus examine in turn:
- the arguments of the Court on the autonomy of the EU legal order;
- the monopoly on dispute settlement established by Article 344 TFEU;
- the co-respondent mechanism;
- the procedure for the prior involvement of the CJEU and the specific characteristics of EU law concerning judicial review in matters of the Common Foreign and Security Policy (CFSP).
Short historical overview
The planned accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms (ECHR) pursues the objective of increasing the effectiveness and homogeneity of fundamental rights protection in Europe. The very idea of accession goes back to 1974, when France as the then last EU Member State ratified the ECHR and the German Bundesverfassungsgericht criticized the inadequate protection of fundamental rights in the European Economic Community in its well-known Solange I decision. While the Commission already favoured accession in 1979 and tried to convince the Council of its idea again in 1990, the latter only in 1994 asked the Court of Justice of the EU (CJEU) for a legal opinion. In its Opinion 2/94, however, the Court insisted that the Treaties lacked an appropriate legal basis for accession. With the Treaty of Lisbon, accession is now provided for in Article 6 (2) TEU. Consequently, on 4 June 2010 the Council gave a mandate to the Commission to start negotiations with the Council of Europe on accession of the EU to the ECHR. After the conclusion of negotiations the Commission now asked the Court for an Opinion on the draft agreement reached in the negotiations. The Opinion handed down by the Court in December 2014 was adequately designated as a veritable “Christmas bombshell”. Not only did the Court find a number of elements to criticize, as could already have been expected after the view delivered by Advocate General Kokott in June 2014. It eventually decided that the draft agreement was incompatible with the Treaties and developed a highly demanding reasoning rendering future accession quite a difficult task, as is subsequently set out in more detail.
The autonomy of EU law
The autonomy of EU law has been of constant high importance for the Court ever since its seminal decision in Van Gend en Loos. Following up on this case law, the Court also emphasizes with particular vigour the notion of autonomy in its opinion. Put shortly, the Court understands autonomy to signify that the EU may be a construction of international law, but that in its internal order its own rules displace the principles and mechanisms of international law.
In the Opinion, the Court notes, however, also the principal possibility of the EU and its organs to submit themselves via an international agreement to a binding interpretation of the latter by an external judicial organ (para 182, if not indicated otherwise all paragraph numbers refer to the Opinion of the Court). This principle is nonetheless limited in that the competences of the EU must not be affected in their essential character. In particular, ECHR organs must not be able to bind the EU to a particular interpretation of rules of EU law (paras 183-4).
In the Opinion, the CJEU finds three situations in which an accession of the EU to the ECHR based on the draft agreement could endanger the autonomy of EU law:
1. The conflict between Art. 53 ECHR and Art. 53 Charter of Fundamental Rights
First, the Court holds that the draft agreement does not make Art. 53 ECHR compatible with Art. 53 Charter of Fundamental Rights. Both provisions foresee that the relevant instrument is not to be interpreted as to adversely affect fundamental rights standards already granted in other ways by the respective Member States. The Court sees therein the problem that EU Member States could be permitted by means of Art. 53 ECHR and in absence of a reconciling provision in the draft agreement to raise the level of protection of a fundamental right to the extent that the primacy, unity and effectiveness of EU law would be compromised (as already established in Melloni). The Court thus leaves room for renegotiation of the draft agreement in this respect so that its concerns can be met. It would thus have to be regulated that raising the level of protection of fundamental rights under the ECHR must neither affect the primacy of EU law for the EU Member States nor the unity and effectiveness of EU law (para 190).
However, this request will be hard to implement and appears to go beyond what is justified for two reasons, apart from the fact that the Court does not address to what extent the mentioned problems already exist with the current state of the law before an accession.
First, the Court requires that the European Court of Human Rights (ECtHR) effectively respects in its jurisprudence the CJEU’s findings in Melloni and thereby gives supremacy to the primacy, unity and effectiveness of EU law over fundamental rights protection under the ECHR. With this, the Court implies and requires that for the EU to accede to the ECHR for EU Member States within the scope of application of EU law only the Charter of Fundamental Rights is relevant, while the ECHR takes the backseat in terms of its substantive content. This would be comparable in effect to a reservation by a party state to the ECHR which requires that the interpretation of ECHR rights by the ECtHR must not go further than the national interpretation of fundamental rights. This appears to be extremely difficult to reconcile with the very object and purpose of the ECHR.
Second, the CJEU does not address at all Art. 52 (3) of the Charter according to which the rights granted in the Charter of Fundamental Rights which correspond to rights granted under the ECHR have the same content and scope as the latter. The ECHR operates thus as a source of knowledge on the minimum standard of protection of such fundamental rights which form part of EU primary law. There is, as a consequence, already a mechanism in EU law which reconciles the scope and content of fundamental rights in the Charter and the ECHR to a considerable extent. For most EU fundamental rights, the jurisprudence of the ECtHR is thus already relevant and binding. Within the scope of application of EU law national courts can already now apply higher standards of fundamental rights protection based on the ECHR and are obliged in cases of doubt to submit a question to the CJEU in the framework of a preliminary reference procedure. This again ensures that the Court has the last word on the standard of protection applicable in EU law.
2. The requirement to check whether another Member State has observed fundamental rights under the ECHR
As a second problem the Court perceives a danger for the autonomy of EU law in the draft agreement because it may adversely affect the principle of mutual trust between the Member States concerning the respect of fundamental rights, which is in particular relevant in the Area of Freedom, Security and Justice (paras 191 ff.). The draft agreement provides according to the Court for an obligation of Member States to check the observance of all other party states even if they are EU Member States (para 194).
Indeed it can be taken as a fact that the mutual checking of observance of fundamental rights under the ECHR impairs the principle of mutual trust. The Court’s dicta, however, do not address that the relevant obligation already binds the EU Member States now. Furthermore, a more conciliatory argument could have been made at this point. Mutual checking of the observance of fundamental rights is typically required in the case law of the ECtHR where substantial violations of ECHR rights would be caused by the surrender of persons to another state – e.g. in the framework of the Dublin system. A deviation from the principle of mutual trust in EU law is, however, typically only permitted in cases of extraordinary circumstances, which arguably requires a graver and more systematic violation of Convention rights. It is deplorable that the Court only recognises the divergence of standards in this matter as a problem without trying in any way to align EU law with the higher standard of protection given under the ECHR. It thereby sustained the principle of mutual trust practically at all costs.
3. Requests for advisory opinions by national highest courts to the ECtHR on questions of principle
The third danger for the autonomy of EU law consists for the CJEU in the possibility granted by protocol n° 16 to the ECHR (currently not yet in force) for the highest courts of Member States to ask questions on the interpretation or application of fundamental rights to the ECtHR. The Court holds that although an accession of the EU to protocol n° 16 was not foreseen in the draft agreement, the ECHR would nonetheless become part of EU law, with the effect of the preliminary ruling procedure of Article 267 TFEU potentially loosing effectiveness. The highest courts of those Member States which ratified protocol n° 16 could also ask the ECtHR for advisory opinions falling within the scope of EU fundamental rights. Therefore, a mechanism is needed in the eyes of the Court to regulate the relationship between these two mechanisms and to ensure the autonomy and effectiveness of the preliminary ruling procedure (paras 196 ff.).
Indeed it cannot be excluded that the entry into force of protocol n° 16 may effectively have negative effects on the role of the CJEU. Nonetheless, it must be taken into account that the opinions handed down by the ECtHR are non-binding. Furthermore, as also the Advocate General found (AG view para 140), such negative effects would not be an effect of the accession of the EU to the ECHR. Even without such an accession EU Member States who ratified the protocol can ask advisory opinions from the ECtHR.
Contrary to the Court’s view, this problem already finds its solution in the Treaties. Based on Art. 267 (3) TFEU the courts of last instance of the Member States are obliged to submit EU law questions in the framework of a preliminary ruling procedure to the CJEU. This obligation enjoys clearly primacy over the obligations of Member States as parties to the ECHR as they could result from protocol n° 16 (see also AG view para 141). Should a Member States‘ court of last instance nonetheless submit a question within the scope of EU law to the ECtHR without being entitled to do so under the acte-clair-doctrine, proceedings for infringement of the Treaties could be engaged against that Member State based on Art. 258 f. TFEU.
The monopoly of dispute settlement under Art. 344 TFEU
The monopoly of dispute settlement maintained by the EU courts under Art. 344 TFEU obliges the Member States to settle disputes concerning the interpretation or application of the Treaties by no other means than the ones provided for in the latter and thereby strengthens the jurisdictional order of competences within the EU. Here, the Court sees a danger for this order. Art. 5 of the draft agreement provided that proceedings of the Member States before the CJEU ought not to be considered as proceedings in the sense of Art. 55 ECHR (para 201 ff.). Nonetheless, based on Art. 33 ECHR EU Member States would still have the possibility to start proceedings against other Member States or the EU itself. Even the mere existence of this possibility does not comply with Art. 344 TFEU in the eyes of the Court and would be incompatible with the latter provision’s exclusive character (paras 208 and 212). This tension can only be resolved by means of an express exclusion of the competence of the ECtHR under Art. 33 ECHT for disputes between EU Member States or between them and the EU which concern the application of the ECHR within the scope ratione materiae of EU law (para 213).
The CJEU thereby demands the inadmissibility of all state complaints in front of the ECtHR as far as the relevant provisions of the ECHR also fall within the scope of EU law and on the applicant and the respondent side there are Member States or the EU itself. This demand, however, is excessive for four reasons.
First, a demand for disconnection clauses (e.g. Art. 282 United Nations Convention on the Law of the Sea) contradicts the general praxis of international agreements to create an exception for the major part of parties excluding them from the dispute settlement procedure without opening this possibility for the other parties to the agreement (see also AG view para 115-6). It is highly likely that such an exception would meet little acceptance by the other member states of the Council of Europe and might render accession as provided for in Art. 6 (2) TEU difficult, if not impossible.
Second, this demand would simultaneously mean that numerous agreements already concluded by the EU are already now in contradiction to Art. 344 TFEU as they do not contain such exception provisions (see AG view para 117).
Third, in this case also EU Member States would find themselves under an obligation under Art. 351 (2) TFEU to amend a number of existing agreements. As soon as two or more EU Member States – as in the MOX Plant case – form parties to an agreement with a dispute settlement mechanism and provisions that overlap in substance with EU law, the monopoly of dispute settlement under Art. 344 TFEU would thus be endangered and the relevant agreement incompatible with the autonomy of EU law
Fourth, it remains questionable whether the autonomy of EU law must really be secured by imposing on non-Member States that they have to expressly guarantee the respect of the monopoly on dispute settlement of the CJEU within the EU in the provisions of an international agreement. The suggestion made by the Advocate General is more convincing in this regard. It should thus be sufficient to start infringement proceedings based on Art. 258 f. TFEU against EU Member States if they settle their disputes before other international instances (AG view, para 118). As an additional measure to ensure the practical effectiveness of Art. 344 TFEU EU Member States could be obliged before the accession of the EU to the ECHR to declare with binding force under international law that they will not engage proceedings under Art. 33 ECHR whose object of dispute falls within the material scope of EU law (AG view, para 120).
The co-respondent mechanism
Art. 3 of the draft agreement sets out the so-called co-respondent mechanism in which several member-states and/or the EU might have to respond jointly for a particular violation of the ECHR. Based on arguments of both respondent and co-respondent, this might allow the ECtHR to at least check some internal responsibilities in the EU. The first part of Art. 3 (7) provides that the respondent and the co-respondent are jointly responsible for a violation of the ECHR, which should prevent that the ECtHR has to decide based on EU law who is responsible for a particular violation (AG view, para 176). Based on the co-respondent mechanism the Union or an EU Member State can become full parties to proceedings with all corresponding rights and obligations whenever the examination of a violation of the ECHR implies also the scrutiny of a provision of EU law as to its compatibility with the ECHR. This is the case in particular where a violation would only have been avoided by means of a violation of EU law (paras 55 ff.). The draft agreement provides for two possibilities. Based on Art. 3 (5), the ECtHR can invite a party to the ECHR to become co-respondent or decide on a request to intervene as a co-respondent. In the latter case, the ECtHR has to verify whether the relevant requirements are plausibly fulfilled. The CJEU criticizes this point holding that it must be left to the EU and its Member States to examine whether the requirements for the co-respondent mechanism are met (para 220).
The mere invitation procedure fulfilled this condition according to the CJEU, as the invitation itself is not binding (para 221). Accordingly, a party could not be obliged to participate in proceedings (para 219); also, the EU and its Member States thereby retained the power to examine whether the material requirements were fulfilled – which necessarily included a decision based on EU law (para 220-1). For this purpose, it would be indispensable to apply the rules of EU law on the distribution of competences between the EU and the Member States and the criteria for accountability to the EU or the Member States (para 221).
In the case of a request to intervene as a co-respondent by either the EU or a Member State, however, the requesting party must provide arguments showing that the requirements are met (para 223). As a consequence, the Court would be called to examine not the arguments themselves in-depth, but nonetheless their plausibility (para 224). According to the CJEU, this is „liable“ to interfere with the division of powers between the EU and the Member States and thus inadmissible (para 225).
The Court’s approach appears highly restrictive in this context. Arguably, the intensity of review used by the ECtHR in all likelihood in this context will be rather low; moreover, no effectively binding interpretation of the distribution of powers takes place.
As a further point of criticism the Court finds fault in the joint responsibility provided for in Art. 3 (7) of the draft agreement for the respondent and the co-respondent. This could lead to a Member State being held to be responsible together with the EU of a violation of a provision of the ECHR in respect of which said Member State has made a reservation (para 227). This would contradict protocol n° 8 to the Treaties which prescribes that the agreement on the accession of the EU to the ECHR has to ensure that nothing therein affects the particular situation of the Member States in relation to the ECHR, in particular in relation to reservations.
This argument similarly raises some questions. First, the EU can only become co-respondent in proceedings relevant to EU law when a Member State is respondent in front of the ECtHR. This is already excluded if there is a relevant reservation by that Member State. Second, neither will the ECtHR invite a Member State to intervene as co-respondent if there exists a relevant reservation by that Member State, nor will a Member State request to intervene in such a case. It therefore remains unclear how the joint responsibility mechanism is supposed to overrule in practice an existing valid reservation.
Finally, the CJEU criticizes – arguably correctly – that according to Art. 3 (7) of the draft agreement the ECtHR could decide based on the arguments of the respondent and the co-respondent, having sought the views of the applicant, that only one of the two is responsible for a violation. This would constitute again necessarily a decision based on EU law concerning the distribution of powers. As that decision is taken by the ECtHR, it could adversely affect this distribution (paras 230-1). This assessment would also remain the same if the ECtHR were to decide exclusively based on the arguments of the respondent and the co-respondent without hearing the applicant; even if by these means the ECtHR would merely „confirm“ an agreement reached by the respondent and the co-respondent on the distribution of responsibility, this would concern a question falling within the exclusive competence of the CJEU (para 234).
The procedure for the prior involvement of the CJEU
The procedure for the prior involvement of the CJEU provided for in Art. 3 (6) of the draft agreement intends to ensure that the Court obtains the opportunity and necessary time to examine the compatibility of provisions of EU law with the ECHR if it did not have a prior opportunity to do so. For the Court, this procedure is indispensable not only for reasons of subsidiarity as they result from the mechanism of supervision established by the ECHR, but also to ensure the proper functioning of the EU judicial system (para 236). For this purpose the CJEU holds that the question whether the Court had already ruled on a particular legal question necessarily had to be decided by an EU organ and in a manner binding for the ECtHR (para 238). Otherwise, the competence to interpret the jurisprudence of the CJEU would be transferred to the ECtHR (para 239). As a consequence, the Court finds that Art. 3 (6) of the draft agreement in its current form was incompatible with those principles, as it did not ensure that the EU was „fully and systematically“ informed in any case pending before the ECtHR, which was necessary to allow the competent institution to assess whether the prior involvement procedure had to be triggered (para 241). In particular, the ECtHR knows no systematic collection of all pending and received complaints as is by comparison the case for the CJEU in form of the Official Journal of the EU (see AG view, para 224). The argument about an indirect duty to inform imposed on the Member States based on the duty of loyal cooperation was also not taken up (see on these points AG view, para 227).
While this appears in principle convincing, the question arises whether the duty of full and systematic information must necessarily be regulated in the accession agreement. Based on the duty of loyal cooperation of the Member States this problem could also be resolved within the EU in the form of a more concrete EU legal act.
At the same time, the CJEU finds fault in the interpretation given to Art. 3 (6) by the draft explanatory report; the report stated that the provision ought to mean that the CJEU would only examine the compatibility with ECHR with respect to the interpretation of primary law and the validity of secondary law, but not with respect to the interpretation of secondary law. Apparently matters of interpretation of secondary law could thus not be brought before the Court (para 242-3). It would violate the exclusive competence of the CJEU to interpret EU secondary law in a binding manner if as a consequence the ECtHR had to decide for itself on a plausible interpretation of secondary law in this context (para 246).
The Court’s analysis is certainly convincing in this respect. However, it can be criticized that a problem should be resolved at the international legal level of the accession agreement that is – at the end of the day – essentially an internal one of the EU legal order, namely the potential disrespect by national courts of the duty to refer EU law questions to the Court. In purely substantive terms the arguments of the Court are, however, correct. In theory, one could of course try to interpret the notion of “[a]ssessing the compatibility” broadly so that cases of interpreting EU secondary law would be included (see AG view, para 132). However, the draft explanatory report that according to the express will of its drafters enjoys the same authority as the draft agreement itself expressly casts doubt on such a reading (AG view, para 134). An amendment and clarification in a future draft agreement is thus indispensable (AG view, paras 133 and 135).
The Common Foreign and Security Policy
For the purposes of the Common Foreign and Security Policy (CFSP), the jurisdiction of the Court is limited in the Treaties to whether Art. 40 TEU has been respected and to the review of legality of certain decisions taken based on Art. 275 (2) TFEU, the latter concerning essentially legal actions brought against the legality of decisions on restrictive measures against natural and legal persons taken by the Council. The question becomes therefore to what extent the ECtHR can have jurisdiction to examine the compatibility of legal acts with the ECHR without the CJEU being able to express its views on such acts.
The Commission had argued that a systematic interpretation would be possible according to which the Court would have a sufficiently large jurisdiction. As a consequence of such an interpretation, all cases would be encompassed which could potentially form the basis of a complaint under the ECHR, which are annulment actions, but also actions in damages and preliminary ruling procedures engaged by national courts in the area of the CFSP. However, the Court had severe doubts in this regard, as it did not yet have the opportunity to address the extent of the limitations of its jurisdiction in the area of the CFSP (para 251). Because of the limitation of the CJEU‘s jurisdiction in the Treaties, according to the Court an accession based on the draft agreement would currently lead to a situation where the judicial control of the relevant acts or omissions of the EU with regard to their compatibility with the ECHR would be exclusively attributed to an organ external to the EU (para 255). As held in earlier jurisprudence, this would be inadmissible (para 256).
In merely dogmatic terms the Court is certainly correct in its interpretation of Art. 275 (2) TFEU. The interpretation suggested by the Commission is hardly convincing: The provision already systematically forms an exception from the rule that the CJEU has no jurisdiction. Furthermore, its wording only refers to annulment actions brought by individuals based on the conditions of Art. 263 (4) TFEU and not as suggested by the Commission to other kinds of proceedings (see AG view, para 89). By contrast, the fundamental rejection of giving jurisdiction to the ECtHR is less convincing as the rather short-hand answer given by the Court makes it appear. One can already note with curiosity that the Court here makes exclusive statements on jurisdiction, thereby extending its own exclusive jurisdiction to an area where – based on the Treaty – its own jurisdiction is expressly excluded.
A closer look at the area of the CFSP shows that one may regret from an integrationist perspective the decision taken by the drafters of the Lisbon Treaty (see AG view, paras 101-3); however, it must be accepted that they intentionally created a situation where the national courts take the place of the CJEU, which therefore also prevents the emergence of any problem of violation of the latter’s exclusive jurisdiction. From this perspective, accession to the ECHR would not be excluded (AG view, paras 101-3).
In the case of the CFSP the national courts replace the CJEU and have to ensure effective judicial protection of individuals also in the absence of the Court’s competence to make preliminary rulings and monopoly to annul EU law (AG view, para 102). The Court’s reasoning is hardly convincing in this regard, as problems of conflicting jurisprudence and dangers for the EU’s supranational structure cannot emerge when an international court is granted more far-reaching jurisdiction than the EU courts (AG view, para 193).
However, this has been explicitly taken into account by the drafters of the Lisbon Treaty when they regulated both the accession of the EU to the ECHR and the limited jurisdiction of the CJEU in CFSP matters in the Treaties (AG view, para 194). Also with regard to this point the Court’s reasoning appears thus to exceed what is dogmatically convincing, with the result that in an area where much could be gained by accession to the ECHR from the perspective of individuals in terms of judicial control, the Court finds it preferable that no one has jurisdiction to the ECHR being granted this privilege. What is more, the Court’s dicta seem to point in a direction where an interpretation of provisions of CFSP acts by the International Court of Justice in The Hague would appear problematic and Member States could accordingly see themselves threatened by infringement proceedings if they participate in such proceedings.
The general reaction by the doctrine to Opinion 2/13 has been overwhelmingly negative. As a representative remark, it has been stated that in light of the overall objective of submitting the EU to an external system of judicial fundamental rights review, the Court’s findings seem to overemphasize the autonomy of the EU legal system and do not ask sufficiently what could be acceptable losses of autonomy indispensable to achieve the stated objective. Already the view of Advocate General Kokott demonstrates that a different solution would have been possible. Despite her criticism of a number of points in the draft agreement, the Advocate General suggested that the Court ought to avoid pronouncing the draft agreement incompatible with the Treaties, but instead hold that it was compatible if certain amendments were undertaken following the Court’s opinion (AG view, para 279). Before this background, one can legitimately ask whether the Court’s approach is justifiable in the light of Art. 6 (2) TEU which can certainly be read as encompassing a duty of best efforts towards accession of the EU to the ECHR. Instead of at least opting for a somewhat encouraging wording that could serve as a road map for the Commission, the Court, however, decided to hand down a no spread over nine pages.
How to move on?
The Opinion will generally render future accession highly difficult and delay it in addition, since already the negotiations of the draft agreement proved protracted and complex and since in the draft agreement suggestions by the CJEU which was represented in the relevant Council committee had already been taken into account.
A number of concrete proposals have been brought forward as a reaction to Opinion 2/13. Some argue thus that accession would make no longer sense under the conditions given by the CJEU, as this would not allow the creation of an effective external surveillance mechanism of EU action with regard to fundamental rights protection. Others propose an amendment of EU primary law – up to an open snub towards the Court. Politically, however, this appears highly difficult, as such an amendment would need to be comprehensive and tackle a number of points. A rather extreme suggestion calls openly for political disobedience against the CJEU: a protocol should be drafted that allows accession of the EU to the ECHR notwithstanding Opinion 2/13. A renegotiation of the draft agreement would be hardly realistic given the notable unwillingness of negotiating partners such as Russia or Switzerland. Again others see the opinion as a welcome step that gives more time to the EU to develop its internal mechanisms for fundamental rights protection, in particular those based on the Charter of Fundamental Rights, before an external surveillance mechanism is installed. Another alternative proposal foresees an amendment of the Treaties which clarifies the status of the ECHR within EU law and upgrades it to ensure instead of an accession to the ECHR a more coherent observance of the ECHR acquis.
The perspective of the ECtHR
Some speculation has also arisen with regard to what changes for the ECtHR as a result of Opinion 2/13. In particular, one may wonder whether the Bosphorus presumption developed in the ECtHR’s jurisprudence could now be questioned. Under this presumption, the ECtHR did not fully release EU Member States of their responsibility for having transferred their activities to the level of an international organisation like the EU, but established after a thorough investigation that the EU’s system of fundamental rights protection according to the state of the law at the time was appropriate in the sense of the ECHR. Early reactions from the ECtHR have already been interpreted as possible signs for a less close cooperation between the two courts in the future.
This post was co-authored with Benedikt Pirker