ACCESSION to the European Convention on Human Rights (ECHR) has
long been on the EU’s political agenda. The EU’s membership of the
ECHR (European Convention on Human Rights)is not only seen as symbolically significant, but is also aimed at
filling an important gap in the enforceability of human rights across
Europe. At present, the EU cannot be brought before the European Court
of Human Rights (ECtHR - European Court of Human Rights, Strasbourg) and, while all EU Member States are parties
to the ECHR, as long as the EU protects fundamental rights to a standard
equivalent to that required under the ECHR (European Convention on Human Rights), Member States cannot be held
responsible for alleged violations of the Convention resulting from EU law
either (Bosphorus v Ireland (2006) 42 E.H.R.R. 1).
But the EU’s judicial branch has been rather more resistant to accession.
Back in 1994, the Court of Justice stated that the Community, as it was then
known, did not have the competence to accede to the ECHR (European Convention on Human Rights) (Opinion 2/94
[1996] E.C.R. I-1759) and that such competence could only be granted
through a Treaty amendment. The Member States took the Court’s suggestion
to the letter and the Treaty of Lisbon added an express obligation for
the EU to join the ECHR (European Convention on Human Rights) in Article 6(2) TEU. After protracted negotiations,
the EU and the Council of Europe finally reached an agreement (the “draft
agreement”), which was designed to ensure compliance with a number of
conditions set out in Article 6 TEU and Protocol No. 8 to the Treaty of
Lisbon – themselves largely a reflection of the Court’s case law.
However, when the Court was asked whether the draft agreement was compatible
with the Treaties, its answer was again a robust “no” (Opinion 2/13
of 18 December 2014, ECLI: EU:C:2014:245).
Although grouped under five headings that are seemingly distinct, most
of the reasons for the Court’s opinion can be linked back to the fact that the
draft agreement undermines the specific characteristics of the EU and of EU law. As the Court indeed explained in its preliminary remarks, the conditions
to which accession is subject are designed to accommodate the fact
that the EU is not a state but instead a new kind of entity with its own
unique features. As such, the question before the Court had a strong constitutional
law dimension and called upon it to assess whether sufficient account
was taken of the EU’s main constitutional and institutional principles, including
the autonomy of the EU legal order and the role of the Court in ensuring
that these features are preserved.
For the sake of simplicity, the Court’s concerns can be divided into two
categories. On the one hand, some concerns were voiced about some of the
more substantive and/or systemic aspects of the draft agreement. While the
Court accepted that the EU’s submission to an external body is not as such
problematic, the conditions necessary to maintain the specificity and autonomy
of the EU legal order were found to be lacking. First, there was no provision
to ensure that Article 53 ECHR(European Convention on Human Rights), which preserves the Member States’
right to lay down higher standards of protection than those guaranteed
under the ECHR (European Convention on Human Rights), would not jeopardize the primacy and unity of EU law,
which essentially means that, when they act within the scope of EU law,
Member States cannot apply higher standards of fundamental rights protection
than those recognised in the Charter (Case C-399/11 Melloni ECLI:
EU:C:2013:107). Second, the draft agreement did not preclude Member
States from reviewing each other’s decisions on human rights grounds,
which could undermine the principle of mutual trust. Third, there was no
mechanism to ensure that the power granted to the highest domestic courts
and tribunals to ask the ECtHR (European Court of Human Rights, Strasbourg) for an advisory opinion would not undermine
the preliminary reference procedure. Finally, the envisaged framework
did not take account of the special features of judicial review in the
area of the Common Foreign and Security Policy (CFSP). According to
the Court, given its own limited jurisdiction in this area, the draft agreement
amounted to conferring exclusive jurisdiction to a non-EU body over certain
questions of EU law.
On the other hand, another set of concerns was more specifically directed
at the procedural and institutional mechanisms designed to govern the litigation
of cases with an EU law dimension. The Court first found that the
possibility, not specifically excluded by the relevant rules, for the EU or
a Member State to submit an application against the EU or another
Member State to the ECtHR (European Court of Human Rights, Strasbourg) breached Article 344 TFEU, which grants
the CJEU exclusive jurisdiction over disputes concerning EU law and
hence, following accession, the ECHR (European Convention on Human Rights). The Court also expressed concerns
over the co-respondent mechanism. The mechanism has two main components.
On the one hand, it enables the EU or a Member State to be joined to
proceedings, either by invitation or upon request, in cases where the individual
application may not have named the correct respondent. On the
other hand, it provides for the joint responsibility of the EU and any relevant Member State(s) in cases of violation of the ECHR (European Convention on Human Rights) save for exceptional
circumstances where the ECtHR (European Court of Human Rights, Strasbourg), on the basis of the reasons put forward
by the parties, can itself decide the issue of attribution. The Court
considered that part of the relevant rules would call upon the ECtHR(European Court of Human Rights, Strasbourg) to
consider the division of powers in the EU – a question of EU law reserved
for the Court of Justice. Furthermore, the Court took the view that the provisions
on joint responsibility affected the Member States’ position under
the ECHR (European Convention on Human Rights) as they could lead them to be accountable for the violation of
a provision in relation to which they had entered a valid reservation.
Finally, the Court identified two shortcomings in the prior involvement procedure,
a mechanism designed to enable it to consider the compatibility of
an EU law provision with the ECHR (European Convention on Human Rights) if it did not yet have the opportunity to
do so. First, the draft agreement did not reserve the power to decide whether
the Court had already ruled on the question of EU law that was relevant to
the proceedings to an EU institution. Second, it excluded from those questions
issues pertaining to the interpretation – as opposed to the validity – of
secondary EU legislation.
From a practical viewpoint, Opinion 2/13 makes accession, at least in the
near future, rather difficult. This contrasts sharply with the position of
Advocate General Kokott who, having identified some room for improvement,
was nonetheless willing to endorse the compatibility of the draft
agreement with the Treaties. In one sense, the outcome is not, however, entirely
unexpected. Indeed, it is not the first time the principle of autonomy
has been used by the Court to guard the constitutive features of the EU legal
order against external intrusion and a number of envisaged agreements have
faced a similar fate on that basis (e.g. Opinion 1/09 [2011] E.C.R. I-1137).
Yet, the particular human rights context of the opinion raises serious questions
about the nature of EU constitutionalism. The Court claims to be
standing in defence of the EU’s constitutional features, but the opinion displays
a rather thin commitment to the substantive protection of fundamental
rights. This is particularly noticeable on the point about the CFSP, where
the Court essentially opted for the immunity of CFSP acts over the possibility
of control by an external body. But it is also more broadly discernible
in the prioritization of other constitutional principles such as the effectiveness
and primacy of EU law over the respect for human rights.
Particularly in the EU context, the Court’s strategy is problematic. In the
face of the EU’s political and democratic deficit, human rights are at the
heart of the EU as a constitutional project. By undermining the EU’s apparent
commitment to human rights, the Court is thus not reinforcing, but rather
weakening, the EU’s constitutional credentials. By holding on to a
rather dogmatic and formalistic version of autonomy, the Court is not preserving
the specific features of EU law, but largely showing their limitations
as expressions of a more substantive vision. By distancing itself
from its European counterpart at Strasbourg, the Court of Justice is not necessarily safeguarding the distinctiveness of the EU’s identity but risks
losing an important ally in the EU’s attempt at building a genuine
European polity. At the moment, it is unclear how the conundrum will
be solved. But, if the question of accession was rightly not only about
human rights but also about the preservation of the EU’s constitutional
order, the Court may not only have jeopardized its relationship to the
ECtHR (European Court of Human Rights, Strasbourg) but ultimately also undermined rather than furthered its own constitutionalist
agenda.