Besselink, L.

English

The Court’s Opinion may have shattered expectations. Who had thought that the revised accession agreement that was renegotiated by the EU and its Member States with the State Parties to the ECHR, after an initial rejection in the Council by the UK and France, would be dodged by the Court? After all, on all the points that the Court and its President had made known to the negotiators, namely the guaranteed ‘prior involvement’, the Court seemed to have been granted a privileged position, that has not been granted to any other court of any of the parties to the ECHR. Was the Court’s membership of the Council Committee in charge of supervising the negotiations on this and other points in vain

International Migration, Integration and Social Cohesion online publications

UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl)UvA-DARE (Digital Academic Repository)Acceding to the ECHR notwithstanding the Court of Justice Opinion 2/13Besselink, L.Publication date2014Document VersionFinal published versionLink to publicationCitation for published version (APA):Besselink, L. (Author). (2014). Acceding to the ECHR notwithstanding the Court of JusticeOpinion 2/13. Web publication or website, BlogActiv.http://acelg.blogactiv.eu/2014/12/24/acceding-to-the-echr-notwithstanding-the-court-of-justice-opinion-213/#more-469General rightsIt is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s)and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an opencontent license (like Creative Commons).Disclaimer/Complaints regulationsIf you believe that digital publication of certain material infringes any of your rights or (privacy) interests, pleaselet the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the materialinaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letterto: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. Youwill be contacted as soon as possible.Download date:10 Mar 2023Acceding to the ECHR notwithstanding the Court of Justice Opinion 2/13 | ACELGhttp://acelg.blogactiv.eu/2014/12/24/acceding-to-the-echr-notwithstanding-the-court-of-justice-opinion-213/#more-469[11-10-2016 11:15:55]About Newsletter Create your Blog Support LoginDecember 24, 2014Acceding to the ECHR notwithstanding the Courtof Justice Opinion 2/13The Court’s Opinion may have shattered expectations. Who had thought thatthe revised accession agreement that was renegotiated by the EU and itsMember States with the State Parties to the ECHR, after an initial rejection inthe Council by the UK and France, would be dodged by the Court? After all, onall the points that the Court and its President had made known to thenegotiators, namely the guaranteed ‘prior involvement’, the Court seemed tohave been granted a privileged position, that has not been granted to any othercourt of any of the parties to the ECHR. Was the Court’s membership of theCouncil Committee in charge of supervising the negotiations on this and otherpoints in vain?By Leonard BesselinkIt is too early to give an in-depth assessment of the position taken by the Court on various points. We donow know that we have to take the President seriously when he announced in the plenary debate at theclosing session of the FIDE Conference 2014 powerfully:“The Court is not a human rights court: it is the Supreme Court of the Union.”It took this in a more literal way than could be expected, and gave a resounding: NJET.What’s to do now? Tobias Lock has suggested that ‘[i]t is clear that the drafters of the DAA will have toreturn to the negotiating table’. I respectfully disagree.Whether one finds the Court’s rejection and its concept of autonomy a form of autarky or a symptom ofautism, and whether or not its judges behave like Humpty Dumpty, spoilt brats, or overly severeschoolmasters dealing out a bad marks to the Commission, the reality is that there is little political prospectthat the non-EU parties to the ECHR will be willing to reopen the negotiations on accession, and give up allthe compromises that in the end they were willing to strike. I refer in particular to Switzerland, Turkey andthe Russian Federation. The declaration of Russia at the re-opening of the negotiations after a few EUMember States rejected the earlier version of the Accession Agreement, stands as an omen (see AppendixVI to the Minutes of the relevant meeting).Acceding to the ECHR notwithstanding the Court of Justice Opinion 2/13 | ACELGhttp://acelg.blogactiv.eu/2014/12/24/acceding-to-the-echr-notwithstanding-the-court-of-justice-opinion-213/#more-469[11-10-2016 11:15:55]So if renegotiating the Accession Agreement is hardly feasible, the other alternative that the TFEU leavesopen in its Article 218(11), is to amend the EU Treaties. It is this option that I here consider, in light of thefact that 24 of the Member States concluded before the Court that the revised Accession Agreement is inaccordance with the Treaties, and so did the Council and Parliament – though not necessarily on the samegrounds as the Commission did (see point 108 of the Opinion).The points on which the Court rejected the Accession Agreement are numerous, and some of them concernpoints that are not in the Treaty at all, in particular the issue of ‘autonomy’ of the Court. It is also for these –but not only – that the solution here proposed would be a way out.Seeking inspiration in clauses of national constitutions of some of the Member States that provide aconstitutional way out of constitutional divergences for the sake of further European integration, I proposesolving the matter with a “Notwithstanding Protocol”.It should read:‘The Union shall accede to the European Convention for the Protection ofHuman Rights andFundamental Freedoms, notwithstanding Article 6(2) Treaty on European Union,Protocol (No 8 ) relating to Article 6(2) of the Treaty on European Union andOpinion 2/13 of the Court of Justice of 18 December 2014.’In this manner the Treaties have been amended fully in accordance with the requirements of the Court aswell as Article 218 (11) of the TFEU. All of the several objections of the Court are covered by such aProtocol. Should there arise any doubts on this, the proposed provision can be accompanied by either aconsideration in the Preamble or another protocol provision, that reads:‘This Protocol effects a revision of the Treaties in the sense of Article 218(11) ofthe Treaty on European Union.’True, not all 28 Member States took the same position before the Court on whether accession agreed withthe Treaties. Nevertheless, of at least of 24 we can assume that they disagree with the Court. The fourMember States not intervening at the Court were Croatia, Slovenia, Luxembourg and Malta. Although wecannot be absolutely certain, but none of them seem to have had any major objections to the terms ofaccession.But even if they would, it will certainly be easier to straighten out and negotiate a Notwithstanding Protocolwith potentially four (partly) dissenting EU Member State than having to go through highly embarrassingnegotiations with the parties to the ECHR plus the Council of Europe (and European Court of Human Rightsrepresentatives).There is of course a constitutional presumption underlying such a Notwithstanding Protocol.The rejection of the first draft Accession Agreement had cast doubt on the sincerity of some of the MemberStates to take their commitment to let the EU accede to the ECHR seriously. The Court of Justice has nowdriven its recent position of not accepting any EU legal commitment that anchors it within a broader legalAcceding to the ECHR notwithstanding the Court of Justice Opinion 2/13 | ACELGhttp://acelg.blogactiv.eu/2014/12/24/acceding-to-the-echr-notwithstanding-the-court-of-justice-opinion-213/#more-469[11-10-2016 11:15:55]order to the very extreme on the issue of the protection of fundamental rights of EU citizens within the strictlyEuropean context.Thus, the Court casts doubt on its constitutionalist commitment to the project of European integration. It isnow for the EU Member States to show what the protection of the rights of their citizens is worth to them,and whether they think it useful to anchor it externally and consent to protection according to the pan-European minimum standard by a European Court that has so successfully provided a true safety valve,should the EU institutions fail to do so.This article has previously appeared in slightly different form on Verfassungsblog.de.Leonard Besselink holds a chair in European constitutional law at the Amsterdam Centre for EuropeanLaw and Governance. His personal page can be accessed here.Author : acelg Print Uncategorized , accession ECHR, opinion 2/13 One CommentComments1. Pingback: Reaction to Leonard Besselink’s ACELG Blog | ACELGLeave a ReplyYou must be logged in to post a comment.0 0 0ACELGProvides insights on European Law from an academic perspective. 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Acceding to the ECHR notwithstanding the Court of Justice Opinion 2/13

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Acceding to the ECHR notwithstanding the Court of Justice Opinion 2/13

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