On 18 December 2014, the Court of Justice of the European Union (‘CJEU’ or ‘the Court’) delivered Opinion 2/13 on whether the Draft Agreement on the European Union’s Accession to the European Convention on Human Rights (‘Draft Accession Agreement’) is compatible with EU law. The Court found that the agreement did not sufficiently take into account the specific nature of the European Union, and that it in many ways violated the ‘autonomy’ of the EU legal order. The Agreement was therefore found not to be compatible with EU law, setting the EU back on its path towards eventually becoming a party to the Convention. The Court’s main issues related to the way in which the Agreement would “affect the specific characteristics of EU law and its autonomy”. These concerns were not minor technical issues, however. They struck at the heart of the Accession Agreement and the very institutional innovations that were designed to respect the autonomy of the EU legal order.
Overview of the Opinion
The first concern relates to Article 53 European Convention on Human Rights (‘ECHR’), which sets out that ECHR Contracting Parties may lay down higher standards of protection of fundamental rights than those guaranteed by the Convention. The Court then refers to Art. 53 of the EU Charter of Fundamental Rights (‘Charter’), which has been interpreted to mean that
“[W]here an EU legal act calls for national implementing measures, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised.” (Melloni, paragraph 60).
The Court is of the view that Art. 53 ECHR “should be coordinated with Article 53 of the Charter, as interpreted by the Court of Justice.” [para 189] This means that where the rights recognised by the EU Charter correspond to those guaranteed by the ECHR, the power granted to Member States by the ECHR must be limited to that which is necessary to ensure that the level of protection provided for by the Charter and the “primacy, unity and effectiveness of EU law are not compromised.” [para 189] As the agreement currently stands, there is no provision that would ensure such coordination.
The second concern relates to the principle of ‘mutual trust’ between Member States. This principle requires Member States to consider other Member States as complying with EU law, including fundamental rights. The Court stresses that this principle “is of fundamental importance in EU law”. [para 191] Upon EU Accession, the EU and the EU Member States would be viewed as contracting parties in their relations with one another. According to the Court, this would require “a Member State to check that another Member State has observed fundamental rights”. [para 194] As the Agreement currently stands, it does not avert the risk that the principle of Member States’ mutual trust under EU law would be undermined.
The third objection arises from Protocol No 16 to the ECHR. This protocol was open for signature in 2013 and introduces the possibility for the highest courts of contracting parties to request an Advisory Opinion from the ECtHR. There is also a procedure in EU law whereby a domestic court of an EU Member State may request a preliminary ruling from the CJEU on questions of EU law. The Court sees that this scenario could potentially touch upon the autonomy of the EU. The Court is particularly worried about a situation whereby a request for an opinion under Protocol No. 16 by an EU Member State would trigger the ‘prior involvement procedure’ in the Draft Agreement (discussed below). The Court found that this could potentially adversely affect the autonomy and effectiveness of the preliminary reference procedure [para 197].
Another concern was that the Agreement violated Article 344 of the Treaty on the Functioning of the European Union (‘TFEU’). According to this provision EU Member States are prohibited from submitting any dispute concerning the interpretation of EU law to any method of dispute settlement other than those provided in the EU Treaties. This provision, as interpreted by the Court, provides a judicial monopoly for the CJEU regarding inter-state disputes between EU Member States (See Case C-459/03 Commission v Ireland). However, Article 33 ECHR allows for inter-state disputes between ECHR contracting parties regarding alleged breaches of the Convention. The Court found that the “very existence of such a possibility” of the EU or Member States submitting such an inter-state application to the European Court of Human Rights (‘ECtHR’) with respect to a violation involving EU law violates Article 344 TFEU [para 208]. The Court found that “only the express exclusion of the ECtHR’s jurisdiction under Article 33 of the ECHR over disputes between Member States or between Member States and the EU in relation to the application of the ECHR within the scope ratione materiae of EU law would be compatible with Article 344 TFEU.” [para 213] Yet it is unclear why the Draft Accession Agreement should deal with such a question. If a Member State or the EU were to bring a case against another Member State or the EU in relation to EU law, this would be a clear violation of the EU Treaties, specifically Art. 4(3) Treaty on European Union (‘TEU’). In fact, a similar situation has been dealt with before when Ireland brought international proceedings against the UK over the MOX dispute, where Ireland was found to have violated EU law by initiating proceedings.
The Court also had problems with the ‘co-respondent mechanism’ [paras 215-235]. This is a procedure that would be introduced to the ECtHR whereby the EU or a Member State could be added as a ‘co-respondent’ in the case in certain circumstances. It was specifically designed to prevent the ECtHR from examining issues related to the division of competences between the EU and the Member States. It was also included to satisfy a condition in Protocol No 8 that required a procedure that ensured that applications were brought against the appropriate party. The Court found, however, that this procedure would still require the ECtHR to assess rules of EU law concerning the division of powers between the EU and the Member States, thereby violating the autonomy of the EU legal order.
The Court also took issue with the other major institutional innovation in the agreement: the prior involvement mechanism [paras 236-248]. This procedure was included to take into account the concerns of the Presidents of the two Courts in their Joint Communication. Presidents Costa and Skouris specifically demanded that a procedure be put in place to allow the CJEU to carry out internal review before it was submitted to the ECtHR for external review. Again, the Court found that this procedure would permit the ECtHR to rule on issues relating to EU law. The prior involvement procedure will have to be adapted so the ECtHR would not be called upon to rule, even indirectly, on these questions.
The final issue relates to the Common Foreign and Security Policy (CFSP). Under EU law, the CJEU has only very limited jurisdiction to review CFSP acts. Under the Draft Accession Agreement, however, there is no limitation on the ECtHR’s jurisdiction. This implies that the ECtHR would be able to review acts where the CJEU could not: “Such a situation would effectively entrust the judicial review of [CFSP] acts, actions or omissions on the part of the EU exclusively to a non-EU body, albeit that any such review would be limited to compliance with the rights guaranteed by the ECHR.” [para 255] The idea of excluding CFSP from the ECtHR’s jurisdiction was discussed in the negotiations, and advocated by some EU Member States, but was not included in the final agreement.
Many had expected the Court to find the agreement to be in conformity with EU law. Even if it had particular reservations or concerns about certain issues, it was expected that the Court would still give the green light for accession to go ahead. Firstly, all EU Member States that submitted observations to the Court, the Commission, the Parliament, the Council, and the Advocate General, all agreed that the Draft Accession Agreement was compatible with the EU Treaties. Moreover, to an unprecedented extent the Court was actually involved in the process of drafting the agreement. The Joint Communication of the Presidents of both the Strasbourg and Luxembourg Courts outlined some of the key issues that any agreement should cover. The negotiators went out of their way to ensure that the agreement respected the autonomy of the EU legal order, taking into account the comments of the two Presidents. The prior involvement procedure and co-respondent mechanism were specifically included in order to protect the autonomy of the EU legal order. The Court’s negative opinion of the Draft Accession Agreement will therefore come as a shock to many.
The Court’s Opinion may not be so surprising, however, when viewed in the context of the Court’s case-law in recent years, which has highlighted the autonomy of the EU legal order. This has especially been the case regarding agreements which involve dispute resolution procedures, such as in Opinion 1/09 of the European and Community Patents Court. The Court reminds us that there is in principle nothing wrong with the EU joining a treaty that allows the EU to be involved in a dispute resolution mechanism. However, in doing so, the ‘autonomy’ of the EU legal order must be preserved. The problem with this is that ‘autonomy’ is a vague and ill-defined concept. One may wonder whether the Court has a clear conception of what autonomy entails, or whether it has become just catch-all phrase to strike down provisions of an envisaged agreement it does not like.
The Accession Agreement represents a carefully negotiated compromise. It is the culmination of over three years of negotiations between representatives of the EU and 47 Council of Europe members. It must be remembered that when the EU takes part in international agreements such as the ECHR, it is joining a multilateral agreement to which many more non-EU states are also parties. While negotiators sought to take into account the specific nature of the EU, they also sought to treat the EU, as far as possible, in the same manner as other contracting state parties. This means that ‘EU-specific’ amendments were only to be included insofar as they were justified by the unique nature of the EU legal order. The Court however rejects the very idea that the EU should be treated in the same manner as a state for the purposes of the Convention. The Court argues that:
“The approach adopted in the agreement envisaged, which is to treat the EU as a State and to give it a role identical in every respect to that of any other Contracting Party, specifically disregards the intrinsic nature of the EU and, in particular, fails to take into consideration the fact that the Member States have, by reason of their membership of the EU, accepted that relations between them as regards the matters covered by the transfer of powers from the Member States to the EU are governed by EU law to the exclusion, if EU law so requires, of any other law.” [Para. 193]
The Court recalls its previous case law, starting from van Gend & Loos, stressing that the EU Treaties have established “a new legal order”. It argues that the fact that the EU is a new legal order “has consequences as regards the procedure for and conditions of accession to the ECHR.” [para 158] This includes the requirement, set out in Protocol No. 8, that any agreement “make provision for preserving the specific characteristics of the EU and EU law.” [para 161] Whereas the starting point for the negotiators was that the EU should be treated on the same footing as other contracting parties, the starting point for the Court was the exceptional nature of the EU. This points to more than a disagreement over certain clauses and provisions in the Agreement, it demonstrates a fundamental disagreement over what the EU’s relationship with the ECHR legal order should look like.
Opinion 2/13 is another major setback in the EU’s journey towards becoming a party to the ECHR. The Court had already frustrated its attempt to accede to the ECHR in Opinion 2/94, where the Court found that the EU did not have competence to join the ECHR. Article 6(2) of the TFEU now sets out that the Union “shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.” The EU is not only capable of acceding to the ECHR, this is now an obligation enshrined in the EU Treaties.
The Court has not simply pointed to certain technical problems with the Draft Accession Agreement. If this were the case, these issues could be addressed by a mixture of amendments to the Agreement, EU legislation, and certain declarations being made by the EU at the time of accession. This was essentially the position of the Advocate General. However, the Court has gone much further than this, and it is clear that the Draft Accession Agreement needs some major changes if it is to survive another Opinion of the Court of Justice. The Court has given a list of what must be satisfied for an agreement to be found in accordance with EU law. Especially given the nature of negotiations that led to the Accession Agreement, it is difficult to see how the EU will be able to include all of these demands when it goes back to the negotiating table. Will Council of Europe members like Russia, whose agreement is also needed for such as accession agreement to enter into force, agree to further amendments that treat the EU differently from other ECHR contracting parties? For some issues, this might not be so problematic. Yet the EU will likely encounter problems on other issues, such as the exemption of CFSP from the Strasbourg Court’s jurisdiction.