POMFR: The EU Accession to the ECHR

By Paul Gragl

At the time of writing, EU scholars and lawyers are still eagerly awaiting the Court’s verdict on the compatibility of the EU/ECHR Accession Agreement with the Union Treaties (Opinion 2/13 is to be delivered on 18 December 2014 and hopes are high that accession may proceed as smoothly as possible and without any major amendments to the agreement). In the meantime – pre-Christmas stress allowing – I can only recommend the latest academic contribution to this topic, a volume co-edited by Vasiliki Kosta, Nikos Skoutaris and Vassilis P. Tzevelekos, concisely entitled The EU Accession to the ECHR (Hart Publishing, 2014). Even though the issue of the EU’s accession to the European Convention on Human Rights is almost as old as the Union itself, this book aptly brings the debate again to the spotlight and discusses the intricate nitty-gritties of this historically unprecedented step in a clear and precise manner. And whatever the outcome of Opinion 2/13 might be, human rights in Europe undoubtedly form part and parcel of the European ‘constitutional’ public order – a development to which the case law of the Court of Justice and the entry into force of the Charter of Fundamental Rights have successfully contributed. Accession remains the missing building block in the edifice of European human rights law, which is intended to close the last gaps in the protection of individual rights by subjecting the EU and its institutions to the external supervision of the European Court of Human Rights. Thus, as the editors correctly state, ‘the post-accession order will be structured on a vertical basis confirming that the last say in human rights will rest with the Strasbourg Court’ (p. 4).

From the perspective of human rights protection, accession is therefore certainly a step that is to be welcomed as the last piece of the puzzle of European organisations, building an institutional bridge between the EU and the ECHR system. From a strictly legal point of view, however, accession appears to be a Pandora’s box of complex procedural questions where the solution of one problem only gives rise to the next issue of legal autonomy and competence. In this context, it must be emphasised that one of the finest features of this book is its balanced analysis, ranging from institutional arrangements, the prior involvement procedure and the EU’s autonomy (part I), over the allocation of responsibilities and the co-respondent mechanism (part II), the accommodation of multiple actors in the future multi-level protection system of human rights (part III), the issue of legal pluralism within post-accession Europe (part IV), to the future common espace juridique and its potential expansion in areas of economic activity (part V). Instead of a conclusion, four shorter pieces on the overall framework of accession complete the picture (part VI).

Andrew Drzemczewski opens part I on institutional arrangements, the prior involvement procedure and the autonomy of the EU with an overview of the negotiation process and highlights a number of ‘selected features’ from the draft Accession Agreement which proves to be a perfect starting point to set the scene, especially for readers without any prior knowledge of the context and history of EU accession to the ECHR. Aida Torres Pérez continues the discussion by analysing the so-called prior involvement procedure of the CJEU which ensures that the EU courts are not side-lined if individuals directly submit a complaint to the ECtHR after a national court has failed to request a preliminary ruling from the CJEU. Should such a situation transpire, the CJEU would then be given opportunity to internally review a case before it is finally passed on to Strasbourg. And although this seems to be the perfect instrument to maintain the EU’s legal autonomy and the principle of subsidiarity, Pérez rightfully raises the question whether this new procedure may involve ‘too many voices’ in the protection of human rights. Having argued that prior involvement is not required in order to conform to the principles of autonomy and subsidiarity (pp. 32-37), she advocates the abandonment of this element of the accession agreement, in particular because of its technical complexities and harmful procedural delays for individuals. Seeing, however, that the prior involvement procedure seems non-negotiable, she offers viable limits to its use in order to avoid such difficulties in the protection of human rights and to eventually come to terms with an ‘exhausting’ mechanism which might ‘lead to undesired results’ (p. 44). Nikos Vogiatzis takes up this issue, but from the particular viewpoint of extra-judicial redress in EU law. Besides the proposals presented by the European Ombudsman on non-judicial redress, this chapter examines the scope and limits of Article 47 of the Charter, the ECtHR’s jurisprudence on Article 13 ECHR, and especially whether non-judicial bodies might constitute effective remedies. This brings Vogiatzis to the question whether recourse to effective non-judicial entities may amount to the exhaustion of domestic remedies under Article 35 ECHR and may thus hinder the activation of the prior involvement procedure (p. 63). The author nonetheless concludes that this merely constitutes a very remote ‘danger’, as the rationale of the mechanism is essentially to enable the CJEU to have its say – a prerogative that will not be jeopardised by non-judicial remedies (p. 64). In the last chapter of part I, Andrew Drzemczewski explores the question of the election of the EU judge onto the ECtHR after accession – an issue that is somewhat more complicated than appears at first sight. The reason for this complication lies in the fact that the accession agreement does not provide any details on the question how the EU judge will be elected. In fact, it leaves the European Parliament’s participation in the election process in the Parliamentary Assembly of the Council of Europe for the Assembly to determine. Drzemczewski concludes that the necessary arrangements for this determination will likely be done in the form of a resolution, which will propose changes to the Assembly’s Rules of Procedure in order to achieve the aims of accession in this respect (pp. 71-72).

Part II of the book is dedicated to the allocation of responsibility and the co-respondent mechanism, the latter being the other innovate procedural instrument of the accession agreement besides the prior involvement mechanism. The overall focus of the chapters in this part is the ECtHR case law on the responsibility of Member States for conduct linked to their membership in international organisations, and the interrelationship between the mechanisms and the rules of international law on the responsibility of international organisations (p. 6). Jean D’Aspremont sets the scene by asking whether the co-respondent mechanism which was introduced to deal with the responsibility for human rights violations shared by the EU and its Member States, could be conducive to the emergence of special rules of international responsibility for the EU (p. 76). After a concise analysis of the Draft Articles of International Organisations for Internationally Wrongful Acts by the International Law Commission, D’Aspremont argues that these articles leave sufficient room for the further development of regional rules of international responsibility and affirms that, as a result of EU accession to the ECHR, EU law and practices in this area may become internal to the ECHR as well (pp. 84-85). Similarly, Arman Sarvarian examines the potential consequences of accession for the attribution of conduct to the Member States and/or international organisations under the law of international responsibility before the ECtHR, in particular in the light of joint operations under the EU’s Common Foreign and Security Policy, UN Security Council resolutions and NATO operations. He concludes that because of the analytical flaws in Strasbourg’s case law on the attribution of responsibility and the European Commission’s arrogation of responsibility to the EU in international litigation through the co-respondent mechanism legal uncertainty after accession might be acerbated. A more consistent and precise application of the approach of the ILC texts could rectify these problems, even on the basis of the co-respondent mechanism (p. 102-103). Andrés Delgado Casteleiro concludes this part by investigating the future relationship between the Luxembourg and Strasbourg Courts through the lens of the co-respondent mechanism and what problems the joint participation of the EU and the Member States may involve for the EU’s legal autonomy. And although both the EU and its Member States will have the right to ‘stand united’ before the ECtHR and speak with a ‘single voice’ (p. 119), the co-respondent mechanism has one significant inherent deficiency: as, the initiation of this mechanism remains voluntary, it favours concerns regarding the EU’s legal autonomy over concerns on legal certainty by individuals alleging human rights violations.

Part III focuses on an often-neglected aspect of accession, which is the national legal orders of the Member States. Since it is the Member States continuing to implement and interpret both the law of the EU and the ECHR after accession, it will therefore also be their obligation to adapt to the new situation and respond to it in a way which guarantees its eventual success (p. 6). John Morijn examines how Member States’ policy practice after accession may ‘kiss awake the sleeping beauty’ of the EU Charter of Fundamental Rights, namely by ‘organising external judicial review of simultaneously formally EU internalised standards’ (p. 123). In Morijn’s opinion, it is particularly the policy stage (i.e. the stage of developing policy and drafting legislation on the Member State level) that remains crucial in order to guarantee the correct interpretation and application of those Charter rights which correspond to certain ECHR rights (p. 138). Subsequently, Giuseppe Martinico argues that the distinction between EU and ECHR law has gradually been overcome by an – albeit still limited – extension of the structural EU law principles (direct effect and supremacy) to the ECHR. He investigates the similarities and differences between the national judicial treatment in applying and interpreting EU and ECHR law and concludes that accession will not render these differences moot: in fact, the CJEU clarified in the Kamberaj case that EU law does not require the disapplication of domestic law conflicting with the Convention – the effects of the ECHR will therefore continue to depend on the national constitutions, not the law of the EU (pp. 156-158). Monica Claes and Šejla Imamović then discuss the role of national courts in the new European post-accession fundamental rights architecture and how accession may impact the national courts (p. 160). Situated at the crossroads of three legal systems (national, EU, and ECHR), domestic courts often face conflicting obligations in protecting fundamental rights and will, after accession, be confronted with an even more intricate institutional complexity. The authors aptly conclude that ‘there is a mighty task ahead for national courts’ (p. 174).

These questions are also linked with part IV which provides the reader with an overview of the post-accession environment from the perspective of legal pluralism and the co-existence of various legal orders without any hierarchically informed Archimedean point of reference. Olivier de Schutter argues that the Bosphorus doctrine, originally conceived by the ECtHR as a ‘presumption-of-compliance’ doctrine vis-à-vis EU law, must ultimately be abandoned after accession (p. 177). Otherwise the EU will never be on an equal footing with its Member States. If, however, Bosphorus is reborn and transformed in a more generalised version after accession, it could serve as a strengthening element for the principle of subsidiarity (p. 187). This would concurrently convert the European system human rights protection into a system that is shaped by horizontal relationships and judicial dialogue. Robert Harmsen subsequently sets out to examine the geopolitics of accession in the wider Europe on the basis of the dichotomical concepts of constitutionalism and pluralism (p. 200). The author argues that pluralism has inherent limits in understanding and explaining the operation of both the contemporary and post-accession Convention system: subjecting the EU to the external supervision of the ECtHR is definitely a recognition of a constitutionally grounded legal order in which the Strasbourg Court will sit at the apex. Moreover, accession should not be seen in isolation from wider reform debates of the ECHR system, and must necessarily take into account that there are also other contracting parties to the ECHR which are – at the same time – not EU Member States. Conversely, Lucas Lixinski considers EU accession to the ECHR as a missed opportunity to ‘tame the fragmentation monster’ of European human rights law, and concludes that the constitutional pluralism advocated by the EU is not really pluralist – which may have a negative impact on how the EU protects human rights. Despite certain shortcomings of the accession agreement, the ECtHR will in the end step in and enforce human rights in the case of violations by EU law (pp. 232-233).

Part V eventually deals with substantive issues of human rights and sheds light on the tool of interpretation in protecting human rights. This part can certainly not be exhaustive, and therefore the editors chose to look into three areas of economic activities within the EU: Bernard M. Hoekman and Petros C. Mavroidis look into trade conflicts between the EU and the US and their eventual settlement within the WTO framework. They reflect upon the question whether the EU might be held responsible by the ECtHR after accession, if it decided cases such as Fedon the same way it did before accession (p. 250). Albert Sanchez Graells discusses the future of due process rights in EU competition law after EU accession to the ECHR and concludes that there is no need for any significant changes in EU competition law enforcement to make it comply with Article 6(1) ECHR. Firstly, competition law does not belong to the ‘core’ of criminal offences foreseen in this provision, and secondly there is a risk of transforming the ECtHR in a third appellate instance in EU law which could generate considerable potential of strategic abuse (p. 270). Aris Georgopoulos, on the other hand, examines possible implications in the area of public procurement after accession and concludes in the affirmative: accession might not only have a qualitative impact by assisting the shift in the balance between market freedoms and human rights, but also open up new procedural pathways for individuals to bring complaints against the EU directly before the Strasbourg Court (pp. 272 and 289).

The last two chapters of part V focus on European Equality Law after accession, which Panos Kapotas sees – despite EU law being more sophisticated and broader than the ECHR – as the driver for greater conceptual clarity and interpretative convergence (pp. 292 and 307); and on the principle of European consensus, which the ECtHR applies in its reasoning. Kanstantsin Dzehtsiarou and Pavel Repyeuski consider European consensus as a medium of changing ECtHR case law through the increasing competence of the EU; the transformation from international into domestic law; and a more formal approach to consensus identification exercised by the ECtHR (p. 323).

‘Instead of a Conclusion’, as part VI aptly promises, it takes stock of EU accession to the ECHR in general and opines that this step will close the last remaining lacunae in human rights protection in Europe (Christos L. Rozakis). Furthermore, it is argued that while the prior involvement procedure is not absolutely necessary, the scope of application of EU fundamental rights vis-à-vis the Member States does need further clarification and prior compliance control with regard to the Charter is required (Christiaan Timmermans); and that the co-respondent mechanism represents an entirely new approach within ECHR law (Giorgio Gaja). Eventually, the book concludes that five last items remain on the EU’s human rights agenda even after accession: the proper implementation of the accession agreement, a re-evaluation of the ECHR’s impact on the EU legal order, the allocation of responsibility in the EU’s multilevel governance system, engagement with other international human rights initiatives, and the protection of fundamental rights through positive measures (Bruno de Witte).

In an overall conclusion, I can only recommend this book as a very ambitious and comprehensive addition to the on-going debate on EU accession to the ECHR. In the light of the upcoming Opinion 2/13, however, I would also agree with the editors that some of the questions raised in this book ‘may in the future find a place in the introduction of another book on the accession of the EU to the ECHR. Some other questions may be forgotten without ever being duly discussed’ (p. 14).’ But be that as it may, the accession agreement remains an intriguing piece of international law which deserves close scrutiny, and both praise for its ambitious tour de force and criticism for its several shortcomings. Only future interpretation of its provisions and its application will show what ‘accession’ will look like.