Douglas-Scott, Sionaidh

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Opinion 2/13 on EU accession to theECHR: a Christmas bombshell from theEuropean Court of JusticeSionaidh Douglas-Scott 2014-12-24T16:55:36On 18 December 2014, the ECJ delivered its long awaited Opinion 2/13 on thecompatibility with EU law of the draft agreement for EU accession to the ECHR. TheECJ concluded, to the great surprise of many, that the accession agreement is notcompatible with EU law. Indeed it found so many obstacles with the agreement that ithas now rendered accession very difficult, if not impossible.For a long time, it has been considered expedient that the EU should accede tothe ECHR, in order to optimize its human rights protection. All EU Member Statesare already Contracting Parties to the ECHR, and there are many advantages tothe EU itself acceding. First, a formal linking of the EU and ECHR could be seenas underlining the EU’s concern for human rights, given that the ECHR is seen aspart of European cultural and political heritage. Second, the accession would finallyanswer criticisms of double standards: that the EU requires accession of all MemberStates but not, before Lisbon at least, of itself. Third, and crucially, EU accession tothe ECHR would alleviate the situation in which individuals find themselves whenfaced by possible breaches of the ECHR by EU institutions. At present, unless EUlaw has been implemented by some Member State act (in which case action wouldbe against that Member State) there is no possible action in Strasbourg. This leavesa gap in judicial enforcement.That being said, the ECJ concluded 2 decades ago in Opinion 2/94 that, underthe existing treaty provisions, there was no competence for what was then theCommunity to accede to the ECHR. The Lisbon treaty remedied this by amendingArticle 6(2) TEU to place an obligation on the EU to accede to the ECHR, andaccession proceedings were opened. The mandatory accession procedure, set outin Article 218 TFEU, is cumbersome and complex. Nonetheless, in April 2013, adraft agreement on accession was agreed between the Council of Europe and theEuropean Commission. Given that a number of member states – both from withinand outside the EU – initially had reservations about the terms of EU participationin the Convention system, it is some achievement that agreement between themwas reached, albeit in a regrettably secretive process on the EU side, as the actionbrought by Leonard Besselink for access to accession documents revealed.However, the ECJ was also asked to provide an Opinion under Article 218(11)TFEU, which provides for a special procedure whereby a member state, or majorEU Institution, may obtain the Opinion of the ECJ as to whether any agreementenvisaged by the EU is compatible with the treaties. Notably, despite the fact thatthe three major EU institutions, as well as the EU’s 28 member states, submitted atthe Court hearing that the draft accession agreement was compatible with the EU- 1 -treaties, the Court held that it is not. AG Kokott, in an Opinion delivered on 13 June2014, had also found the agreement compatible with EU law, albeit in highly qualifiedterms. Given the ECJ’s adverse holding, the agreement may not enter into forceunless it, or the EU treaties, is revised.The Court’s reasoning in Opinion 2/13Much of the Court’s Opinion considers the arguments made by EU Institutions andMember States. Indeed, only just over one quarter of the judgement, about 8 webpages, actually sets out the Court’s own position on compatibility of accession withEU law. This posting will now briefly consider, in order, each of the arguments madeby the Court as to why, in its mind, accession would be incompatible with EU law.First, and significantly, the Court was quick to point out that, to date, only Stateshave been members of the ECHR. The Court disparaged the approach adopted inthe draft agreement, which it believed treats the EU as a State, and thus ignored theintrinsic nature of the EU. In contrast, the ECJ has characterized the EU as ‘a newlegal order’. Interestingly, in Opinion 2/13, the ECJ asserted that, under internationallaw, the EU is precluded by its very nature from being considered a State. Whilesuch a clear statement may come as a relief to those who fear the growth of the EUinto a superstate, what follows in the Opinion amounts to a robust declaration of theautonomy of EU law, which has some troubling consequences, and ultimately led theECJ to find the draft agreement incompatible with EU law. The Court structured theremainder of its arguments under the following headings:1. a) The specific characteristics and the autonomy of EU lawThe autonomy of EU law, and its specific, sui generis nature, has been a runningtheme throughout its legal history. EU Accession to the ECHR must thereforenot disturb EU competences nor the interpretive monopoly of the CJEU in theinterpretation of EU law, and Protocol 8 Lisbon treaty was drafted with this in mind,specifically stating that the accession agreement must ‘make provision for preservingthe specific characteristics of the Union and Union law.’ The ECJ observed that,while after accession, the Strasbourg Court’s interpretation of the ECHR would bindthe EU, including the ECJ, nonetheless it would be unacceptable for the ECtHR tocall into question the ECJ’s findings in relation to the scope of EU law. The Courtcited 3 specific ways in which the draft agreement failed to take account of thespecific characteristics of EU law.First, the ECJ was concerned that Article 53 ECHR, which gives Contracting Partiesthe power to lay down higher standards of protection than those guaranteed by theECHR, should not compromise EU law. Although Article 53 of the EU Charter ofFundamental Rights appears to state something very similar to Article 53 ECHR, inthe 2013 Melloni judgment, the ECJ held that Member States could not have higherstandards than the EU Charter in cases where the EU has fully harmonized therelevant law. Thus the ECJ asserted that the ECHR should be coordinated with (theECJ’s interpretation of) the Charter, and found that there was no provision in thedraft agreement to ensure such coordination.- 2 -Second, the ECJ was concerned that the principle of mutual trust under EU law,highly relevant in the context of the EU´s Area of Freedom, Security, and Justice,could be undermined. Much EU legal co-operation within the AFSJ, such as, forexample, execution of European Arrest Warrants, is based on the presumption ofhuman rights compliance throughout the EU. In contrast, the ECHR would requireeach Member State to check that other Member States had actually observedfundamental rights, even though EU law imposes an obligation of mutual trustbetween those Member States. The accession agreement contains no provision toprevent such a development. In those circumstances, the Court of Justice believedthat accession is liable to upset the underlying balance of the EU and undermine theautonomy of EU law.Third, the Court noted that Protocol 16 ECHR (only signed on 2 October 2013)allows ECHR states’ highest courts to seek advisory opinions from the ECtHRregarding the interpretation and/or application of rights in the ECHR. Although theEU will not accede to this Protocol, the ECJ nonetheless perceived it as a threat tothe autonomy of EU law, because ECHR states’ highest courts might prefer to makea preliminary reference to Strasbourg on the compatibility of EU law with ECHRrights, rather than to Luxembourg.1. b) Article 344 TFEUThe ECJ has consistently held that an international agreement cannot affect theallocation of powers fixed by the Treaties and, consequently, the autonomy of theEU legal system. That principle is enshrined in Article 344 TFEU, which providesthat EU Member States may not to submit a dispute concerning the interpretation orapplication of the Treaties to any method of settlement other than those provided forby the Treaties. Given that the draft agreement did not exclude the possible use ofthe ECtHR to settle such disputes, the ECJ found that this undermined EU law.1. c) The co-respondent mechanismA large part of EU law is implemented by its Member States, and, therefore, it willseem logical for the applicant to proceed against the State. Yet, Member Statesoften have no discretion as to whether, or how, an action emanating from the EU isimplemented. In such cases, the root of the problem lies with the EU measure, ratherthan the Member State. Therefore, EU accession prompts tricky questions as to howresponsibility between the Member States and the EU should be split. In order toaddress these problems, Article 3 of the draft accession agreement makes provisionfor a co-respondent mechanism to be established. It provides that a ContractingParty is to become a co-respondent either by accepting an invitation from the ECtHRor by decision of the ECtHR upon the request of that Contracting Party. However,carrying out such a review would require the ECtHR to assess the rules of EU lawgoverning the division of powers between the EU and its Member States. The Courtof Justice held that to permit the ECtHR to make such an assessment would riskadversely affecting the division of powers between the EU and its Member States.1. d) The procedure for the prior involvement of the Court of Justice- 3 -Regard for autonomy of EU law requires that the CJEU must have had the chanceto interpret and rule on an issue of EU law before it reaches the ECtHR. The realproblem emerges with indirect actions concerning EU law brought in the courts ofthe member states, and it is possible that, in such a case, a national court mightnot refer to the CJEU for a preliminary ruling – in which case the CJEU would bedenied the ability to provide authoritative guidance on the treaties. A solution to thisproblem was offered by Presidents Costa and Skouris in a joint communication,which suggested that, as part of the accession agreement, an internal procedurefor indirect actions should be introduced, so that the CJEU should have a chanceto make a ruling in such cases. This idea was adopted by the draft accessionagreement (Article 3 (6)).However, the ECJ found fault with the draft agreement’s terms, because, first, it didnot reserve to the CJEU only (ie it did not exclude the ECtHR) the power to rule onwhether the CJEU has already dealt with an issue, and, second, it did not permit theCJEU to rule on the interpretation, but only on the validity, of EU law.1. e) The specific characteristics of EU law as regards judicial review in CFSPmattersLastly, the Court analysed the specific characteristics of EU law as regards judicialreview in matters of the common foreign and security policy (‘CFSP’). The CJEU haslimited jurisdiction over CFSP acts, and so it is possible that it would have no chanceto interpret the EU law at issue prior to an ECtHR ruling in a case concerning thehuman rights compatibility of a CFSP measure in Strasbourg. In such a situation,the ECtHR would itself interpret EU law without the aid of the CJEU. This mightjeopardize the autonomy of Union law, and also the ECJ’s interpretative monopolyunder Article 344 TFEU. For example, if as a consequence of an EU military action,a human rights violation were pleaded, it would appear that, post accession, anaction against the EU in the Strasbourg court would be feasible. Such a situationwould effectively entrust the exclusive judicial review, as regards compliancewith the rights guaranteed by the ECHR on the part of the EU, to a non-EU body.Therefore, the ECJ held that the draft agreement failed to have regard to the specificcharacteristics of EU law with regard to the judicial review of acts in the area of theCFSP.Reflections on the OpinionThis Opinion undoubtedly makes it difficult for the EU to proceed with accession. Thedraft agreement was only achieved after tortuous negotiations and redrafts, mainly– but not only – due to objections within the EU itself. The Court’s Opinion sets outso many objections to accession, some requiring treaty change, that one is promptedto think that the Court desired to make accession as difficult as possible. And this isso, even given the Court’s somewhat privileged position as member of the CouncilCommittee that negotiated accession, and the fact that its suggestions, in both adiscussion document and a joint communication from the presidents of the ECtHRand ECJ, appear to have been accommodated.- 4 -The EU is required by the terms of its own Treaty, Article 6(2) TEU, to accede tothe ECHR, and the Commission is open to an infringement action if it fails to doso. The history of EU integration provides many illustrations of ad hoc, pragmaticactions in the face of seemingly impossible practical difficulties. So accession maystill be achieved. Nonetheless, the ECJ’s Opinion makes it highly problematic for theCommission to proceed. There may indeed, be little prospect that non-EU ECHRstates will acquiesce in renegotiating the agreement to suit the terms of the ECJ’sOpinion. In such a situation, the Commission could not be blamed if non-EU actionmade it impossible to fulfil the obligation in Article 6(2).What should our conclusions be if we value human rights? Peers characterizesthe Court’s Opinion as ‘a clear and present danger to human rights protection’ andI believe he is right. The Court’s Opinion is shot through with statements on theautonomy and special position of EU law, and most particularly with concern forits own prerogatives as ultimate determinant of the EU legal order, rather than anyabiding concern with human rights. Thus the old critique that the ECJ does not takerights seriously springs back to mind. As Leonard Besselink reminds us, we nowknow that we must take seriously the ECJ President’s announcement at the FIDEConference 2014: ‘The Court is not a human rights court: it is the Supreme Courtof the Union.’ Indeed, there is something highly ironic in the ruling, in that the ECJappears to be opposing ECHR accession for fear this might result in a loss of itssovereignty – a position uncannily similar to that taken by UK eurosceptics, whodesire ECHR membership only on their own terms.This is indeed doubly ironic, for the Court expresses these concerns about itsconstitutional position and autonomy of EU law, just at a time when, with theexpansion of EU criminal powers through the AFSJ, human rights control overthe EU has never been needed more. The ECHR has an important role to play inunderlining that the EU principles of mutual trust and recognition, although lynchpinsof European integration, must not threaten fundamental rights and subvert the veryvalues of the EU.Yet, were the EU to accede to the ECHR, in full compliance with the Court’srequirements in Opinion 2/13, human rights protection in the EU would not beenhanced, for the EU would be shielded from many human rights claims, includingmany, if not most, in the highly controversial CFSP and AFSJ areas. Given all ofthe difficulties thrown out by the Court’s Opinion, Besselink has suggested that thetreaties should now be amended to insert the following ‘notwithstanding protocol’ toread as follows:‘The Union shall accede to the European Convention for the Protection of HumanRights and Fundamental Freedoms, notwithstanding Article 6(2) Treaty on EuropeanUnion, 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.’This is a dramatic suggestion indeed. But would all EU member states agree to sucha protocol? The UK’s present administration is unlikely to be very accommodating.Therefore, I reluctantly conclude that, in the light of the ECJ Opinion, those whovalue human rights no longer have any reason to pursue EU accession to the ECHR.- 5 -Accession in compliance with the ECJ’s judgement would not provide effectiveexternal control of the EU’s actions. This is a pessimistic conclusion, but it is hard toconclude otherwise than that Opinion 2/13 does not take rights seriously.This article is also published on the UK Constitutional Law Blog. - 6 -

Opinion 2/13 on EU accession to the ECHR: a Christmas bombshell from the European Court of Justice

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Opinion 2/13 on EU accession to the ECHR: a Christmas bombshell from the European Court of Justice

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