POMFR: The Accession of the European Union to the European Convention on Human Rights

Alright, we admit it, the topic of the EU’s accession to the European Convention on Human Rights is indeed intriguing us quite a bit here at the blog, as some of our recent contributions (see here and here) demonstrate. But like probably many, if not most of our readers, as EU lawyers we are drawn like moths toward lights by such an important constitutional development; there is simply no helping. I am thus again giving in to the temptation and will briefly discuss a recent book, Paul Gragl’s The Accession of the European Union to the European Convention on Human Rights (Hart Publishing 2013) which treats this phenomenon in detail. For the purpose of this POMFR, I will start by briefly outlining the structure followed by the book, to continue then with a number of points I would like to comment on.

Gragl starts with a useful reflection on the need for a whole book on this subject, which leads him to set out his research question: Can accession and the system of human rights protection under the Convention be effectively reconciled with the autonomy of EU law, and if so, how? (p. 8). The second part of the book (chapters 3-6) examines mainly the ‘status quo’, including the seminal case law on the autonomy of the EU legal order and what we could perhaps term the EU human rights acquis. Chapter 3 provides a review of the relevant literature and explores in more depth the notion of legal autonomy as enshrined in the Treaties and in the case law of the Court. Chapter 4 turns to the impact of the somewhat ‘isolationist’ approach found in the Court’s case law on international law; it does so by scrutinizing the relationship of the CJEU with a number of other international courts and tribunals, recalling for this purpose in particular the MOX plant controversy and the legal controversy surrounding the creation of the European Economic Area and the EFTA Court. Chapter 5 analyses the Court’s relationship with the European Court of Human Rights as a ‘special case’, which includes a broad discussion of the development of human rights standards in EU law and the impact of the EU Charter of Fundamental Rights. The second part as a whole may not necessarily be particularly new to some readers, but Gragl’s accessible style makes it an enjoyable read and provides newcomers or those who need to refresh their memories with some helpful warm-up exercises for what is to follow. What I find particularly useful here is the concise summary provided in Chapter 6. The term of legal autonomy comprises thus for Gragl four ‘imperatives’ that the Court has developed, with the consequence of some serious constraints imposed by the CJEU under its vigilant protection of legal autonomy on Member States choice and utilization of other international courts and tribunals and on the jurisdiction of such courts and tribunals (p. 84).

The third part aims to provide elements to answer the research question, focusing thus in each chapter on a particular topic. Chapter 7 assesses what rank the EU accession agreement would need to have within the EU legal order in order to safeguard the autonomy of EU law. Concluding that it possesses a ‘mezzanine’ rank, Gragl then proceeds to some thought experiments on potential norm conflicts to show that legal autonomy can be preserved. I must admit that I am a bit more in two minds here about his rather positive assessment (pp. 104-105) of the role of Article 51 (1) of the Charter, as in particular after the Åkerberg Fransson case we still have to see to what extent there will remain effectively two clearly separate spheres of Member State and EU fundamental rights protection. Chapter 8 examines whether the fact that the EU is subject to review by the European Court of Human Rights is compatible with the concept of autonomy of EU law. This also includes a commendably comprehensive discussion of the suggestion that primary EU law be excluded from the scope of review by the Strasbourg Court. Chapter 9 focuses on applications by individuals who want to challenge a certain legal act; for this purpose, it discusses at length the co-respondent mechanism (note here the highly useful chart on p. 171!). Chapter 10 examines inter-party cases after accession; from an internal perspective, there may be potential for future clashes of jurisdiction between the CJEU and the European Court of Human Rights, since both claim exclusive jurisdiction for disputes among their Member States. From an external perspective, the question arises whether the EU itself could become a human rights litigator among Convention members, e.g. in its relations towards candidate countries who have to comply with the well-known Copenhagen Criteria. Chapter 11 eventually explores the exhaustion of domestic remedies rule, in particular the intricate problem of cases where the CJEU had no prior opportunity to weigh in on alleged violations of the Convention by EU law. Finally, part four answers the research question, concluding that the autonomy of EU law can indeed be reconciled with accession of the EU to the Convention.

As one unfortunate point, of course the recently published revised Draft Agreement for Accession could not be discussed by the author anymore – but this is of course the eternal problem of monographies; fortunately, nowadays blogs can come to the rescue for such recent developments. In any event, the comprehensive discussion of the book provides a continuously relevant and thorough framework for reflection not only for the revised agreement, but for any future development – also the Court’s expected opinion under Article 218 (11) TFEU.

And there is more to commend about this book. One point I liked –  as an academic writing from the somewhat ‘external’ perspective of Switzerland – was the explanation of differences between the third party intervention and the co-respondent mechanisms (p.151); only the former one is available for the EU to intervene when one of its partner countries under an association regime is brought before the Court. It will be interesting to see to what extent this will indeed become relevant when e.g. controversies on association-based regimes such as Schengen or Dublin emerge and partner countries of the EU find themselves before the Strasbourg Court for applying norms created essentially by the EU. The subject would merit perhaps more discussion, but admittedly, the focus on EU legal autonomy does not leave a lot of room for such excursions.

This is perhaps one of the drawbacks of the clear focus on the research question pursued throughout the book: While the resulting study is very coherent and interesting to read, the focus lies very strongly on jurisdictional and court-related issues. Of course, as part of a study on the topic of accession of the EU to the Convention, the changes necessary in the other institutions and procedures – for example as regards supervision of the execution of judgments by the Committee of Ministers – could have also been discussed.

Nonetheless, Gragl’s study has great potential in my view. Ideally, it will be able to entertain two audiences at the same time: On the one hand, Gragl’s perspective is clearly that of an EU lawyer, in particular with the very focus of the study on EU legal autonomy. On the other hand, however, he fruitfully manages to bring in at a number of occasions arguments that challenge the special treatment that the EU’s nature – at least according to the EU side, of course – seems to require at a number of levels. This should make the book appealing also to readers more familiar with the Convention and rather external to the EU’s constitutional structure. They are likely to find a good weighing of various arguments in this book, which should make the various positions brought forward by EU actors during the negotiation process much easier to understand. For all the ‘internal’ talk about what happens to the EU, the CJEU and EU law in case of accession, let us not forget that there is also the Convention itself and its non-EU members who are part of this debate.