Critically evaluating CJEU Opinion 2/ 2013 on EU Accession to the ECHR

Introduction 

The European Court of Justice (ECJ) found in Opinion 2/2013 that the Draft agreement on European Union Accession to the European Convention on Human Rights (DAA) was incompatible with European Union (EU) Law. In order to critically evaluate the ECJ’s reasoning it is important to consider a list of factors. The factors that will be considered in this essay are the importance of accession to the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR), the objections the ECJ had to the DAA, an analyse of the logic of those objections and a final evaluation of the ECJ’s Opinion.

The importance of accession to the ECHR

The objective of EU accession to the ECHR became an integral part of EU law when it was included in the Lisbon Treaty under Article 6(2). Article 6(2) states “The Union shall accede to the European Convention for the protection of Human Rights and Fundamental Freedoms. Such an accession shall not affect the Union’s competences as defined in the Treatises”[1]. The accession’s inclusion into primary EU Law shows that it was given utmost importance by the Masters of the Treaty. When considering its inclusion into primary EU law combined with three years of formulation, planning and negotiation between Member States, the Council of Europe and the EU Commission one can truly appreciate the gravitas of the decision placed into the ECJ’s hands when asked to provide the Opinion. AG Kokott demonstrates a thorough understanding of the importance of this decision as will be discussed later. In her decision[2] she perceived more opportunities for flexibility, which with some minor reform would have seen DAA as compatible with EU law. A final point regarding the importance of accession to the ECHR is that accession would lead to greater protection of human rights and fundamental rights. The president of the ECJ stated in 2014 at a FIDE Conference that “The Court is not a human rights court; it is the supreme court of the Union” [3]which suggests that the ECJ is not the ideal court for human rights issues and perhaps Peers is right Opinion 2/13 is “a clear and present danger to human rights protection”. [4]

The objections the ECJ had to the DAA and analysis

The ECJ stated ten objections in Opinion 2/13, which were under five headings. The headings were the Article 344 of the TFEU, the specific characteristics and the autonomy of EU law, specific characteristics of EU law as considering judicial review of Common Foreign and Security Policy(CFSP),  the co-respondents mechanism and prior involvement procedure. [5]

The ECJ holds that Article 344 of the Treaty on the Functioning of European Union “enshrined” [6] the principle of “the autonomy of the EU Legal System”[7] and highlights that there is a risk that accession under the DAA will undermine the jurisdiction of the ECJ. ECJ states that the possibility that the DAA will allow the opportunity for a Member State to take an EU Law related case to the European Court of Human Rights (ECtHR) before the ECJ interferes with their jurisdiction and “undermines the requirements set out Article 344 TFEU”[8].  The ECJ also states that the DAA’s diminishment of Article 344 is “against the very nature of EU law”[9]. However, Storgaard suggests the DAA allowed space for “manoeuvre” [10]and the ECJ could have solved its concerns by paying “due attention”[11] to international law and the “characteristics of the ECtHR’s rulings.”  [12] Autonomy is a very dominant theme that is prevalent throughout Opinion 2/13 but this particular objections seems to fall flat as there was the opportunity for the ECJ to consider that the ECtHR would only be competent to rule on matters related to the ECHR [13]and Article 5 of the DAA provided that the proceedings would “constitute dispute settlement within the meaning of Article 55 of the Convention” in order to avoid infringing on the jurisdiction of the ECJ. [14]

The next objections to consider are the ones relating to the specific characteristics and the autonomy of EU law. Concerns regarding the threat to the autonomy of EU law by the DAA have been described as “unwarranted”. [15]The ECJ referred to its decision in the case of Melloni [16] and the effect the DAA would have an effect on sources of EU fundamental rights and EU Law autonomy. The ECJ criticized Article 53 of the convention and said that it “reveres the power of contracting parties to lay down higher standards of protection of Fundamental rights than those guaranteed by the ECHR”[17]. It appears the court fears that the Member States may uses article 53 of the Convention to challenge Melloni, which would threaten the autonomy of EU law. Yet, AG Kokott did not address this issue specifically in her judgement however she found that “EU accession as such neither threatened the direct effect and primacy of EU Law”. [18] Lock also describes the ECJ’s argument here as “unconvincing” [19] and highlights 2 convincing reasons that Article 53 of the Convention becoming a structural part of EU law would have no adverse effect. He states that Article 53 of the Charter of Fundamental Rights of the European Union as interpreted by the ECJ would prevail over the Convention because “international treaties concluded by the EU must still comply with EU primary law”. [20]He also indicates that Article 53 of the Convention imparts that the Convention cannot be interpreted as limiting other fundamental rights.[21]The ECJ also contends two further objections under this heading in that accession threatens the principle of “mutual trust” [22]and the ability of Protocol 16 to the ECHR, which allows a court or tribunal to ask for an advisory opinion on the interpretation of the ECHR. The objection to Protocol 16 is based on the ECJ’s fears that it will be used to circumvent ECJ’s jurisdiction. However, this argument can be dispelled by the fact that that Protocol 16 had not yet entered into force; the DAA did not suggest it would accede to this tool nor did the AG consider this to be a risk to EU Law autonomy[23]. The concept of “mutual trust” in EU law is that a Member State will “presume that fundamental rights have been observed by the other Member States”[24]. The ECJ believes the concept of “mutual trust” could be undermined and lead to tension between Member States. However, this concept ignores the ruling of the ECtHR in the case of MSS v Belgium and Greece [25]where the ECtHR acknowledged the principle of mutual trust but suggested that “blind faith” [26]would not be compatible with the Convention and that at the time in this case the Belgium authorities “knew or ought to have known” [27]that the Article 3 rights of the applicant would have been violated. The fact that the ECJ seemed to “follow suit”[28] in its ruling in NS/ME [29]seems to show that there is flexibility surrounding the principle of mutual trust.

Another objection from the CJEU was that the DAA entrusts the judicial review of acts relating to the EU in CFSP matters “exclusively to a non-EU body”. [30]The ECJ labelled this under the title of “failure to have regards to the specific characteristics of EU law as considering judicial review of CFSP”[31]. The ECJ accepts that CFSP matters fall outside of their jurisdiction but, nevertheless the ECJ maintains that judicial review “acts, actions or omissions on the part of the EU … cannot be conferred exclusively on an international court which is outside the institutional and judicial framework of the EU”  [32]and uses Opinion 1/09 [33]as a reference. The ECJ’s objection on these grounds may appear logical and valid here however they are still fiercely opposed and criticised. Lock suggests the ECJ has created a “veritable Catch- 22” situation where accession is not able to proceed without some CFSP measures being excluded from the ECtHR but in doing so any measures taken to create this exclusion would still infringe on the autonomy of EU law. AG Kokott also recognised the issue regarding judicial review and autonomy however she suggested that “the absence of sufficient arrangements within the EU, by which the autonomy of EU law alone can be protected, can hardly be used as an argument against the recognition of the jurisdiction of the judicial body of an international organisation”[34]. AG Kokott seems to ignore the precedence set by the ECJ in Opinion 1/09 perhaps because Article 6(2) of TEU and the DAA suggests that Member States, Council and the Commission accept giving the ECtHR jurisdiction over CFSP matters as long as it entails issues concerning breach of the ECHR. The ECJ’s objection on autonomy and CFSP grounds seems to be an attempt to expand their jurisdiction even further into EU Law rather than work toward the objective of greater human and fundamental rights protection within the Union. The ECJ’s logic on these grounds seems to go against its very own ideals in Kadi I where it created the “constitutional principle that all Community acts must respect Fundamental rights”   [35].

Finally, the ECJ had objections to the co-respondents mechanism and prior involvement procedure of the DAA. The ECJ suggests that the DAA did not “lay down arrangements” [36]for the use of the co-respondents mechanism and prior involvement procedure that would also “enable the specific characteristics of the EU and EU law to be preserved”. [37] The ECJ maintains that the ECtHR’s being able to make a decision that can apportion blame for a violation of the ECHR by either Member States or the EU would “also risk adversely affecting the division of powers between the EU and its Member States”. [38]The ECJ provide no solutions to the issue of the adverse effect on the division of powers. However, AG Kokott suggests that this issue of autonomy could be solve by giving “a comparable competences as regards to the co-respondent mechanism”[39] to the EU and it’s Member States. This solution would allow Member States and EU institutions an opportunity to intervene before the ECJ and the ECtHR and allows EU institutions and Member States a right to choose if the co-respondent mechanism ought to be triggered. The solution may match the unspecified requirement of the ECJ to ensure that accession “preserves” the special characteristics of EU Law. The ECJ had suggested that prior involvement was necessary to satisfy that “the competences of the EU and the powers of its institutions, notably the Court of Justice, be preserved” [40]and cited Article 2 of Protocol No.8 EU. However, it found that the DAA was still incompatible. The ECJ cited two reasons for why the DAA did not go far enough. First it stated it was not for the ECtHR to decide prior involvement but rather this responsibility should belong to an EU institution[41].  Second, only allowing ECJ involvement to take place where a provision of EU law was an issue but not where there were questions of interpretation[42]. The ECJ has some valid points regarding the issue of prior involvement but their logic is flawed when compared to AG Kokott’s explanation of this issues. The AG’s approach in evaluating this matter is considered “thorough”, clarified and qualified while also respectful to the ECtHR[43]. AG Kokott explained the requirement is necessary because there is no organised publication of cases that are pending before the ECtHR[44]. She also explains the types of cases the EU and its Member States must be made aware of in cases either of them need to request becoming a co-respondent[45]. However, Stoorgaard presents a valid objection to the ECJ and AG’s point by referencing Article 4(3) TEU (sincere cooperation). The obligation of Article 4(3) already secures that the EU and its Member States will be informed of proceeding before the ECtHR.

A final evaluation of the ECJ’s Opinion

Generally Opinion 2/13 is considered a disappointment. However, disappointing judgements can still be legally reliable and logical. In this case the reliability of the CJEU seems to be lacking. When the CJEU’s Opinion is compared to AG Kokott’s Opinion it seems to lack the depth, understanding and pragmatism of the AG’s Opinion. The AG and the ECJ make very similar points but as mentioned earlier the AG is more thorough which may be why she found a way to make the DAA compatible with Article 6(2). Finally the AG seems to be more concerned with achieving the goal set out in Article 6(2) TEU while the CJE appears to be more concerned with protecting their autonomy and possibly expanding their jurisdiction into CFSP matters. The CJEU’s Opinion has also been heavily criticised and it is easy to see why as the ECJ has obvious gaps in their logic which come from misunderstanding the principles of the ECtHR, in overstating the importance of Protocol 16 which most member states have not ratified and creating as Lock said a “catch 22” regarding their requests pertaining to CFSP measures. The ECJ highlighted some valid concerns and issues in their opinion however, these are overshadowed by their failure to be pragmatic and adaptive. Two key aspects that have helped to develop the EU law they are so desperate to protect.

[1] Treaty on European Union

[2] Opinion 2/13, Opinion of Advocate General Kokott, 13 June 2014

[3] S. Douglas-Scott, ‘Opinion 2/13 on EU accession to the ECHR: a Christmas bombshell from the European Court of Justice’ U.K. Const. L. Blog (24th December 2014) (available at http://ukconstitutionallaw.org)

[4] Peers, “The CJEU and the EU’s Accession to the ECHR: A Clear and Present Danger to Human Rights Protection”, EU Law Analysis, Blog on EU law developments , 19 December 2014, http://eulawanalysis.blogspot.co.uk/2014/12/the-cjeu-and-eus-accession-to-echr.html

[5] Opinion 2/13, Accession of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms 18 December 2014

[6] Ibid. at para 201

[7] Ibid

[8] Ibid. at para 208

[9] Ibid at para 212

[10] Stogaard, “EU Law Autonomy versus European Fundamental Rights Protection- On Opinion 2/13 on EU Accession to the ECHR”, Human Rights Law review, 20 July 2015

[11] Ibid

[12] Ibid

[13] Ibid

[14] Lock, “The future of European Union’s accession to the European Convention on Human Rights after Opinion 2/13: is it still possible and is it still desirable?”, European Constitutional Law Review 2015 219-237, 2015

[15] Stogaard, Supra n 10

[16] C-399/11 Stefano Melloni v Ministerio Fiscal

[17] Opinion 2/13, supra n 5 at para 189

[18] Stogaard, supra n 10

[19] Lock, Supra n 14

[20] Ibid

[21] Ibid

[22] Opinion 2/13, supra 5 at  para191

[23] AG Kokott Opinion, supra n 2

[24] Opinion 2/13, supra n 5 at para 192

[25] MSS v Belgium and Greece, Application no. 30696/09

[26] Stogaard, supra n10

[27] Ibid

[28] Ibid

[29] M.S.S. v. Belgium and Greece, Application no. 30696/09, Council of Europe: European Court of Human Rights, 21 January 2011

[30] Opinion 2/13, Supra n5 at para 258

[31] Ibid. at para 258

[32] Ibid at para 256

[33] Opinion 1/09 , 2011 at para 78,80 and 89

[34] AG Kokott Opinion, supra n2

[35] C-415/05 Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of The European Union and Commission of the European Communities [2008] ECR

[36] Opinion 2/13, supra n 5 at para 258

[37] Ibid.

[38] Ibid at para 231

[39] Stogaard, supra n 10

[40] Opinion 2/13, supra n5 at para 237

[41] Ibid, at para 238

[42] Ibid, 241-247

[43] Stogaard, supra n5

[44] AG Opinion, supra n2 at para 224-225

[45] Stogaard, supra n5

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