“The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.” Article 6, paragraph 2, TEU
The EU took another step towards accession to the ECHR with the finalization, late last week, of the Draft Revised Agreement on the Accession of the EU to the ECHR, after almost three years of negotiations.
However, as Antoine Buyse notes over on ECHR Blog, the road to accession remains long and winding. The next hurdle will be to request an opinion from the Court of Justice on the compatibility of the agreement with the EU Treaties, pursuant to Article 218(11) TFEU. The agreement would then require the unanimous approval of the Council, in addition to the approval of all Member States “in accordance with their respective constitutional requirements” (Article 218(8) TFEU). Finally, the agreement will have to be ratified by all States of the ECHR.
The explanations of the Draft Agreement are available in annex to the report. Below, I flag some important aspects of the Draft Agreement, notably the co-respondent mechanism and the prior involvement of the CJEU.
Article 1(4) of the Draft Agreement states that, for the purposes of the ECHR:
an act, measure or omission of organs of a member State of the European Union or of persons acting on its behalf shall be attributed to that State, even if such act, measure or omission occurs when the State implements the law of the European Union, including decisions taken under the [TEU and the TFEU]. This shall not preclude the European Union from being responsible as a co-respondent for a violation resulting from such an act, measure or omission […].
Thus, the EU may, either by way of request or upon the invitation of the Strasbourg Court, become a co-respondent along with the respondent Member State (Article 3(5)), giving it the status of a “party” to the proceedings. The voluntary nature of the mechanism, dependent on the consent of the EU or Member State concerned, has been criticized (see Tobias Lock’s post here).
Article 3(2) specifies that the co-respondent mechanism can be triggered when proceedings have been initiated against a Member State if it appears that the alleged violation:
calls into question the compatibility with the Convention rights at issue of a provision of European Union law, including decisions taken under the TEU and under the TFEU, notably where that violation could have been avoided only by disregarding an obligation under European Union law.
Similarly, the Member States may become co-respondents in a case against the EU where the alleged violation hinges on provisions on EU law and could only have been avoided by disregarding those obligations (Article 3(3)).
Notably, if a violation is established in such a case, “the respondent and the co-respondent shall be jointly responsible for that violation”, unless the Court decides otherwise for specific reasons. The reference to “joint responsibility” has also been described as sitting uneasily with the requirement under Article 1 of Protocol No 8 to the EU Treaties to establish “mechanisms necessary to ensure that proceedings […] are correctly addressed to Member States and/or the EU as appropriate” (for further discussion, see the ESIL Reflection by Judge Gaja of the ICJ).
Prior Involvement of the CJEU
At the heart of this issue is a desire to accommodate the autonomy of the EU legal order (and of the CJEU to interpret the rules of that order) within the ECHR system, while also reconciling it with the requirement to exhaust domestic remedies (Article 35(1) ECHR).
When considering the role of the EU courts in this regard, two situations must be distinguished. The first situation concerns a “direct action” against the EU challenging an act of an EU institution. This situation is not addressed by the Draft Agreement, but it emerges from the Joint Communication of the Presidents of the CJEU and the ECHR, that an applicant bringing a direct action against the EU would first have to exhaust all remedies before the EU courts.
The second situation concerns an “indirect action” in which a Member State is alleged to have violated the ECHR when implementing or applying EU law, and it is this scenario that has been the subject of much discussion. As the explanations to the Draft Agreement note, since applicants cannot compel a national court to make a preliminary reference to the CJEU, a preliminary ruling “cannot be considered as a legal remedy that an applicant must exhaust before making an application to the Court.” However, in order to ensure that the Strasbourg Court would not adjudicate on the conformity of EU law without the CJEU first having the opportunity to review it, Article 3(6) of the Draft Agreement provides that:
In proceedings to which the European Union is a co-respondent, if the Court of Justice of the European Union has not yet assessed the compatibility with the Convention rights at issue of the provision of European Union law as under paragraph 2 of this Article, sufficient time shall be afforded for the Court of Justice of the European Union to make such an assessment, and thereafter for the parties to make observations to the Court. The European Union shall ensure that such assessment is made quickly so that the proceedings before the Court are not unduly delayed. The provisions of this paragraph shall not affect the powers of the Court.
The specific modalities of such a procedure are not set down in the Draft Agreement and are left to be determined by EU law.
As noted above, the accession process is unlikely to be concluded any time soon. Consequently, Strasbourg’s existing jurisprudence concerning the (indirect) judicial review of EU law, notably the Bosphorus case, remains relevant.
In that regard, readers might be interested in a recent decision of the ECtHR which ostensibly refined the Bosphorus rule by emphasizing the importance of prior review of the CJEU to the Bosphorus presumption of equivalent protection. In Michaud v France, which became final on 6 March 2013, the Court was asked to assess the compatibility of an obligation pursuant to EU Money Laundering Directive requiring lawyers to report reasonable suspicions of money laundering or terrorist financing with the right to privacy protected by Article 8 ECHR.
The ECtHR declined to extend the presumption of equivalent protection to the Directive on two grounds. First, the Court noted that Directives, unlike Regulations, grant a “margin of manoeuvre” to States as to how the obligation is to be achieved. If this is relatively unsurprising, the Court then proceeded to find that secondly, and “above all”, the present case was to be distinguished from Bosphorus because the Conseil d’Etat had not made preliminary ruling to the CJEU, nor had the CJEU any other opportunity to examine the question. The Court thus concluded that:
because of the decision of the Conseil d’Etat not to refer the question before it to the Court of Justice for a preliminary ruling, even though that court had never examined the Convention rights in issue, the Conseil d’Etat ruled without the full potential of the relevant international machinery for supervising fundamental rights – in principle equivalent to that of the Convention – having been deployed. In the light of that choice and the importance of what was at stake, the presumption of equivalent protection does not apply. [para.115]