Skip to main content Accessibility help
×
Home

When Caveats Turn into Locks: Opinion 2/13 on Accession of the European Union to the ECHR

  • Adam Łazowski and Ramses A. Wessel

Extract

The Court of Justice of the European Union (the Court of Justice) decided to strike again. On 18 December 2014, for the second time in history, the Court rejected the European Union's (EU) accession to the European Convention on Human Rights (ECHR). Although the judges do not seem to negate the idea as a matter of principle, they made the renegotiation of the Draft Accession Treaty very difficult, to say the least. The message sent by the Court of Justice to the Member States may have surprised some, but for many it was a rather expected development. The Court of Justice has always been a fierce defender and promoter of the autonomy of EU law. For that purpose, the procedure based on Article 218 (11) TFEU has been, among the others, the Court's greatest weapon. Over the years a clear pattern has emerged: Whenever there is a threat to the autonomy and to the Court's exclusive jurisdiction, the judges will not shy away from taking bold decisions going against the will of the Member States. For obvious reasons, the raison d'être behind the Court's decision is kept secret behind the doors of the deliberation rooms at Kirchberg in Luxembourg. Still, it cannot be denied that Opinion 2/13 shows that the Court of Justice will not give up its resistance to the ECHR accession so easily. In 1996, in Opinion 2/94, the Court held that the European Community, as the law stood then, had no competence to accede to ECHR. Now that Article 6(2) TEU provides for an obligation to accede, subject to conditions laid down in Protocol No 8 to the Founding Treaties, the Court has opted for strict interpretation of the latter, which, ultimately turns the caveats laid down therein into locks. It is clear that these caveats turned into locks are something that the judges will hold on to in the future and, by the same token, they will happily pursue interpretation that is very different from what the Member States intended when negotiating the Treaty of Lisbon and the Draft Accession Agreement.

    • Send article to Kindle

      To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

      Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

      When Caveats Turn into Locks: Opinion 2/13 on Accession of the European Union to the ECHR
      Available formats
      ×

      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

      When Caveats Turn into Locks: Opinion 2/13 on Accession of the European Union to the ECHR
      Available formats
      ×

      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

      When Caveats Turn into Locks: Opinion 2/13 on Accession of the European Union to the ECHR
      Available formats
      ×

Copyright

References

Hide All

1 Opinion 2/13 of the Court of 18 December 2014: Accession by the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, ECLI:EU:C:2014:2454. See also View of Advocate General Kokott, ECLI:EU:C:2014:2475. For an academic appraisal see, inter alia, Steve Peers; Daniel Halberstam; Stian Øby Johansen; and Christoph Krenn in this edition of the German Law Journal. See also A. Łazowski and R.A. Wessel, The European Court of Justice Blocks the EU's Accession to the ECHR, CEPS Commentary, 8 January 2015; http://www.ceps.eu/node/9942.

2 It has been reported that the general feeling after the hearing was that the accession agreement was considered compatible with the EU Treaties. See S.O. Johansen, “Some thoughts on the ECJ hearing on the Draft EU-ECHR accession agreement”; http://blogg.uio.no/jus/smr/multirights/content/some-thoughts-on-the-ecj-hearing-on-the-draft-eu-echr-accession-agreement-part-1-of-2.

3 Other procedures may be of importance, too. A good example of the use of infraction procedure in such a context is Case C-459/03 Commission of the European Communities v Ireland, ECLI:EU:C:2006:345.

4 See Opinion 1/91 of the Court of 14 December 1991 on the European Economic Area, ECLI:EU:C:1991:490; Opinion 1/09 of the Court of 8 March 2011 on agreement creating a Unified Patent Litigation System, ECLI:EU:C:2011:123.

5 Opinion 2/94 of the Court of 28 March 1996: Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, ECLI:EU:C:1996:140.

6 Case C-399/11 Stefano Melloni v Ministerio Fiscal, ECLI:EU:C:2013:107.

7 See, inter alia, Mendelson, M., The European Court of Justice and Human Rights, 1 YEL (1981) 121; Mendelson, M., The Impact of European Community Law on the Implementation of the European Convention on Human Rights, 3 YEL (1983) 99; Bogdandy, A Von, The European Union as a Human Rights Organization? Human Rights and the Core of the European Union, 37 CMLRev. (2000) 1307; I. Butler and O. De Schutter, Binding the EU to International Human Rights Law, 27 YEL (2008) 277; White, R. CA, A New Era for Human Rights in the European Union?, 30 YEL (2011) 100; Schütze, R., Three ‘Bills of Rights’ for the European Union, Yearbook of European Law, 30 YEL (2011) 131.

8 The term ‘new legal order’ was coined by the Court of Justice in seminal judgment in case 26/62 Van Gend en Loos, ECLI:EU:C:1963:1. See further, inter alia, P Pescatore, “Van Gend en Loos, 3 February 1963 - A View from Within” in M P Maduro and L Azoulai (eds) The Past and Future of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart Publishing 2010) 3; Witte, B de, “The Continuous Significance of Van Gend en Loos” in M P Maduro and L Azoulai (eds) The Past and Future of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart Publishing 2010) 9.

9 Initially the Court of Justice approached this idea with fair amount of trepidation. It very early case-law it rejected outright references to fundamental rights (see Case 1/58 Friedrich Stork & Cie v High Authority of the European Coal and Steel Community, ECLI:EU:C:1959:4). This, however, changed in late 1960s when in Case 29/69 Erich Stauder v City of Ulm - Sozialamt (ECLI:EU:C:1969:57) the Court of Justice famously ruled that “the provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community Law [now Union law] and protected by the Court” (para. 7).

10 Coppel, J., O'Neill, A., The European Court of Justice: Taking Rights Seriously?, 29 CMLRev. (1992) 669.

11 Internationale Handelsgesellschaft GmbH v Einfuhr- und Vorratsstelle fur Getreide und Futtermittel (No.2, BVL 52/71) [1974] 2 CMLR 540.

12 See, inter alia, Case C-60/00 Mary Carpenter v Secretary of State for the Home Department, ECLI:EU:C:2002:434; Case C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, ECLI:EU:C:2003:333.

13 More on the history of the Charter of Fundamental Rights see, inter alia, G. de Búrca, The drafting of the European Union Charter of Fundamental Rights, 26 ELRev (2001) 126.

14 Treaty establishing a Constitution for Europe, OJ C 310/2004, p. 1. See further, inter alia, J-C. Piris, The Constitution for Europe: A Legal Analysis, CUP 2006.

15 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007 [2007] OJ C306/1. For an academic appraisal see, inter alia, J-C. Piris, The Lisbon Treaty. A Legal and Political Analysis (Cambridge University Press 2010); Craig, Paul, The Lisbon Treaty. Law, Politics, and Treaty Reform (Oxford University Press 2010); Andrea Biondi, Piet Eeckhout, Stefanie Ripley (eds), EU Law after Lisbon (Oxford University Press 2012); Martin Trybus and Luca Rubini (eds), The Treaty of Lisbon and the Future of European Law and Policy (Edward Elgar Publishing 2012).

16 Craig, P., The Treaty of Lisbon, process, architecture and substance, 33 ELRev (2008) 137, at 165. See also E.F. Defeis, The Treaty of Lisbon and Accession of the European Union to the European Convention of Human Rights, 18 ILSA Journal of International & Comparative Law (2011-2012) 387.

17 This, as argued in the academic literature, has the same effect that it would have had had the Charter been formally part of the Founding Treaties. See M. Borowski, The Charter of Fundamental Rights in the Treaty on European Union in M. Trybus, L. Rubini (eds) “The Treaty of Lisbon and the Future of European Law and Policy”, Cheltenham-Northampton 2012, p. 200, at p. 208.

18 For a comprehensive analysis see Gragl, P., The Accession of the European Union to the European Convention on Human Rights, Hart Publishing, Oxford-Portland, Oregon, 2013.

19 Art. 6(2) TEU: “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms: Such accession shall not affect Union's competences as defined in the Treaties.”

20 See Benoit-Rohmer, L'adhésion de l'Union à la Convention européenne des droits de l'homme, 19 Journal de droit européen (2011) 285 (referred to in R. Barrata, Accession of the EU to the ECHR: the rationale for the ECJ's prior involvement mechanism, 50 CMLRev. (2013) 1305).

21 A brief reminder is fitting that originally the ECHR had been opened to participation of states only. However, Protocol No 14 to ECHR provides now for a possibility of EU's accession.

22 Draft Treaty establishing a Constitution for Europe, OJ C 169/2003, p. 1. It should be noted, however, that Article I-9 of the Treaty establishing a Constitution for Europe, which was signed a year later, provided for a straightforward obligation to accede (OJ C 310/2004, p. 1).

23 Protocol 8 provides: Article 1: “The agreement relating to the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the ‘European Convention') provided for in Article 6(2) of the Treaty on European Union shall make provision for preserving the specific characteristics of the Union and Union law, in particular with regard to: (a) the specific arrangements for the Union's possible participation in the control bodies of the European Convention; (b) the mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the Union as appropriate.”

Article 2: “The agreement referred to in Article 1 shall ensure that accession of the Union shall not affect the competences of the Union or the powers of its institutions. It shall ensure that nothing therein affects the situation of Member States in relation to the European Convention, in particular in relation to the Protocols thereto, measures taken by Member States derogating from the European Convention in accordance with Article 15 thereof and reservations to the European Convention made by Member States in accordance with Article 57 thereof.”

Article 3: “Nothing in the agreement referred to in Article 1 shall affect Article 344 of the Treaty on the Functioning of the European Union.”

24 The package includes Draft Revised Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms, the Draft Declaration by the EU made by the time of signature of the Accession Agreement, the Draft Rules to be added to the Rules of the Committee of Ministers.

25 Paras. 3–143 of the Opinion.

26 See paras. 33-55 of the View of Advocate General Kokott.

27 See infra Sections IV and V.

28 Paras. 156-157 of the Opinion.

29 Paras. 158 and 166 of the Opinion.

30 Para. 167 of the Opinion.

31 See, for instance, Peers, S., ‘The CJEU and the EU's accession to the ECHR: a clear and present danger to human rights protection', EU Law Analysis, 18 December 2014; http://eulawanalysis.blogspot.nl/2014/12/the-cjeu-and-eus-accession-to-echr.html.

32 Para. 169 of the Opinion.

33 Para. 171 of the Opinion.

34 For instance according the Polish version of the Charter it applies when Member States apply [“stosują”] EU law.

35 It provides: “the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law”.

36 Case C-617/10 Åklagaren v Hans Åkerberg Fransson, EU:C:2013:105.

37 Case C-333/13 Elisabeta Dano and Florin Dano v Jobcenter Leipzig, ECLI:EU:C:2014:2358, para. 87.

38 Para. 172 of the Opinion.

39 See on this principle, for instance, M. Klamert, The Principle of Loyal Co-operation in EU Law, Oxford: Oxford University Press 2014.

40 Para. 175 of the Opinion.

41 See on the preliminary ruling, for instance, M. Broberg and N. Fenger, Preliminary References to the European Court of Justice, Oxford: Oxford University Press, 2014 (2nd ed.).

42 Para. 170 of the Opinion. See more generally on this question: J.W. van Rossem, ‘The EU at Crossroads: A Constitutional Inquiry into the Way International Law is Received within the EU Legal Order', in E. Cannizzaro, P. Palchetti and R.A. Wessel (Eds.), International Law as Law of the European Union, Leiden/Boston: Martinus Nijhoff Publishers, 2012, pp. 5989.

43 Para. 178 of the Opinion: “In order to take a position on the Commission's request for an Opinion, it is important (i) to ascertain whether the agreement envisaged is liable adversely to affect the specific characteristics of EU law just outlined and, as the Commission itself has emphasised, the autonomy of EU law in the interpretation and application of fundamental rights, as recognised by EU law and notably by the Charter, and (ii) to consider whether the institutional and procedural machinery envisaged by that agreement ensures that the conditions in the Treaties for the EU's accession to the ECHR are complied with.”

44 Para. 183 of the Opinion.

45 Para 184 of the Opinion.

46 Para. 185 of the Opinion.

47 Para. 186 of the Opinion.

48 See, for instance, S. Peers, T. Hervey, J. Kenner, A. Ward (Eds.), The Charter of Fundamental Rights: A Commentary, Oxford: Hart Publishing, 2014.

49 Article 52(3) of the Charter of Fundamental Rights.

50 See Witte, Bruno de, Article 53, in S. Peers, T. Hervey, J. Kenner, A. Ward (eds), The EU Charter of Fundamental Rights. A Commentary, CH Beck-Hart-Nomos, Oxford and Portland, Oregon, 2014, pp. 15231537.

51 Para. 188 of the Opinion.

52 Para 189 of the Opinion: “In so far as Article 53 of the ECHR essentially reserves the power of the Contracting Parties to lay down higher standards of protection of fundamental rights than those guaranteed by the ECHR, that provision should be coordinated with Article 53 of the Charter, as interpreted by the Court of Justice, so that the power granted to Member States by Article 53 of the ECHR is limited — with respect to the rights recognised by the Charter that correspond to those guaranteed by the ECHR — 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.”.

53 Ibidem.

54 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, OJ 2002 L 190/1.

55 For an academic appraisal see, inter alia, N. Keijzer and E. van Sliedregt, eds., The European Arrest Warrant in Practice, T.M.C. Asser Press, The Hague 2009.

56 Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial, OJ L 81/2009, p. 24.

57 Para. 194 of the Opinion: “In so far as the ECHR would, in requiring the EU and the Member States to be considered Contracting Parties not only in their relations with Contracting Parties which are not Member States of the EU but also in their relations with each other, including where such relations are governed by EU law, require a Member State to check that another Member State has observed fundamental rights, even though EU law imposes an obligation of mutual trust between those Member States, accession is liable to upset the underlying balance of the EU and undermine the autonomy of EU law.”

58 Ibidem.

59 Joined cases C-411/10 and C-493/10, N. S. (C-411/10) v Secretary of State for the Home Department and M. E. and Others (C-493/10) v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform, ECLI:EU:C:2011:865. For an academic appraisal see, inter alia, M. Spreeuw, Do As I Say, Not As I Do: The Application of Mutual Recognition and Mutual Trust, 8 CYELP (2012) 505

60 For an academic appraisal see, inter alia, P Gragl, (Judicial) love is not a one-way street: the EU preliminary reference procedure as a model for ECHR advisory opinions under draft Protocol No 16, 38(2) ELRev. (2013). 229

61 Para. 199 of the Opinion.

62 Para. 200 of the Opinion.

63 See for instance Opinions 1/91, EU:C:1991:490, paragraph 35, and 1/00, EU:C:2002:231, paragraphs 11 and 12; judgments in Commission v Ireland, C-459/03, EU:C:2006:345, paragraphs 123 and 136, and Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission, EU:C:2008:461, paragraph 282.

64 Para. 143 of the Opinion.

65 Paras. 106-107 of the Opinion.

66 Ibidem.

67 Para. 143 of the Opinion.

68 Paras. 163-174 of the Opinion.

69 Para. 177 of the Opinion.

70 See more extensively on the role of the two European courts in the accession negotiations L.F.M. Besselink, ‘Should the European Union Ratify the European Convention on Human Rights? Some Remarks on the Relations between the European Court of Human Rights and the European Court of Justice', in A. F⊘llesdal, B. Peters & G. Ulfstein (eds.), Constituting Europe: the European Court of Human Rights in a National, European and Global Context, Cambridge: Cambridge University Press, 2013, pp. 301333.

71 Available at http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-02/cedh_cjue_english.pdf (last accessed on 15 January 2015) [at 1].

72 Ibidem.

73 See infra Section VI.

74 Discussion document of the Court of Justice of the European Union on certain aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, para. 7, http://curia.europa.eu/jcms/upload/docs/application/pdf/2010-05/convention_en.pdf.

75 Paras. 7-9.

76 Para. 186 of the Opinion.

77 See on this issue also P. Eeckhout, ‘The European Convention on Human Rights and Fundamental Freedoms as an Integral Part of EU Law – Some Reflections', in I. Govaere, E. Lannon, P. Van Elsuwege, S. Adam (Eds.), The European Union in the World: Essays in Honour of Marc Maresceau, Leiden/Boston: Martinus Nijhoff Publishers, 2013, pp. 8799. See more in general on the relationship between the EU and the Council of Europe: E. Cornu, ‘The Impact of Council of Europe Standards on the European Union', in R.A. Wessel and S. Blockmans (eds.), Between Autonomy and Dependence: The EU Legal Order Under the Influence of International Organisations, The Hague: T.M.C. Asser Press/Springer, 2013, pp. 113-129.

78 Para. 212 of the Opinion.

79 Para. 213 of the Opinion.

80 Para. 115 of the View of Advocate General Kokott.

81 The Advocate General Kokott mentioned the possibility used in Article 282 of the United Nations Convention on the Law of the Sea (para. 115 of the View). Kuijper refers to the example of Annex 2 of the UNESCO Convention on cultural diversity, which states that the Member States of the Union which are party to the Convention (next to the EU itself) will apply the provisions of the agreement in question in their mutual relations in accordance with the Union's internal rules and without prejudice to appropriate amendments being made to these rules. P.J. Kuijper, ‘Reaction to Leonard Besselink's ACELG Blog', 6 January 2015; http://acelg.blogactiv.eu/2015/01/06/reaction-to-leonard-besselinks's-acelg-blog/.

82 The discussion on this is well known and the most popular conclusory qualification still seems to be that the EU is a sui generis entity. The Court refers to this when it argues:

The fact that the EU has a new kind of legal order, the nature of which is peculiar to the EU, its own constitutional framework and founding principles, a particularly sophisticated institutional structure and a full set of legal rules to ensure its operation, has consequences as regards the procedure for and conditions of accession to the ECHR.

(para. 158 of the Opinion). See recently on this discussion C. Eckes and R.A. Wessel, ‘The European Union: An International Perspective', in T. Tridimas and R. Schütze (Eds.), The Oxford Principles of European Union Law –Volume 1: The European Union Legal Order, Oxford: Oxford University Press, 2015 (forthcoming).

83 See, inter alia, P. Gragl, op. cit. n. 18; Jacqué, J.P., The Accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms, 48 CMLRev. (2011), 995-1023; Timmermans, C., ‘Fundamental Rights Protection in Europe Before and After Accession of the European Union to the European Convention of Human Rights', in M. van Roosmalen et al. (eds.), Fundamental Rights and Principles: Liber Amicorum Pieter van Dijk, Antwerpen: Intersentia, 2013; Polakiewicz, P., ‘The European Union's Charter of Fundamental Rights and the European Convention on Human Rights: Competition or Coherence in Fundamental Rights Protection in Europe', 14 Revue européenne de droit public (2002), 853-878; Lock, T., EU Accession to the ECHR: Implications for the Judicial Review in Strasbourg, 35 European Law Review (2010), 777-798; Lock, T., The ECJ and the ECHR: The Future Relationship Between the Two European Courts, 8 Law and Practice of International Courts and Tribunals, (2009), 375-398; as well as the contributions to J. Iliopoulos-Strangas, V. Pereira da Silva and P. Potacs (eds.), Der Beitrit der Europäischen Union zur EMRK: die Auswirkung auf den Schutz der Grunrechte in Europa, Baden-Baden: Nomos, 2013.

84 See further, inter alia, P. Gragl, op. cit. n. 18, at pp. 138173; as well as Eckes, C., EU Accession to the ECHR: Between Autonomy and Adaptation, 76 Modern Law Review (2013), 254-285, at 267.

85 For the text of Article 344 TFEU see supra section IV.

86 See further Baratta, R., op. cit. n. 20.

87 Para. 92 of the Opinion.

88 Para. 139 of the Opinion.

89 Para. 137 of the Opinion.

90 Para. 241 of the Opinion.

91 Para. 239 of the Opinion.

92 Paras. 124-135 of the View of Advocate General Kokott.

93 Paras. 236-248 of the Opinion.

94 Para. 252 of the Opinion.

95 Para. 254 of the Opinion.

96 See Hillion, C., ‘A Powerless Court? The European Court of Justice and the Common Foreign and Security Policy', in M. Cremona and A. Thies (eds), The ECJ and External Relations: Constitutional Challenges, Oxford: Hart Publishing (2014); Wessel, R.A., ‘Resisting Legal Facts: Are CFSP Norms as Soft as They Seem?', European Foreign Affairs Review, 2015 (forthcoming); Griller, S., ‘The Court of Justice and the Common Foreign and Security Policy', in A. Rosas, E. Levits and Y. Bot (Eds), Court of Justice of the European Union - Cour de Justice de l'Union Européene, The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Caselaw - La Cour de Justice et la Construction de l'Europe: Analyses et Perspectives de Soixante Ans de Jurisprudence, The Hague: T.M.C. Asser Press (2013) pp. 675692; G. De Baere and P. Koutrakos, ‘The Interactions between the Legislature and the Judiciary in EU External Relations’ in P. Syrpis (Ed.), The Judiciary, the Legislature and the EU Internal Market, Cambridge: Cambridge University Press (2012), pp. 243-273; Saltinyté, L., ‘Jurisdiction of the European Court of Justice over issues relations to the Common Foreign and Security Policy under the Lisbon Treaty', 119 Jurisprudence (2010), 261; Hinarejos, A., Judicial Control in the European Union – Reforming Jurisdiction in the Intergovernmental Pillars, Oxford: Oxford University Press (2009).

97 See in particular C. Hillion, ‘A Powerless Court?', op. cit. n. 96 and R.A. Wessel ‘Resisting Legal Facts', op. cit. n. 96.

98 Para. 251 of the Opinion.

99 Para. 83 of the Opinion.

100 Para. 86 of the View of the Advocate General Kokott.

101 Hillion, C., ‘A Powerless Court?', op. cit. n. 96 and R.A. Wessel ‘Resisting Legal Facts', op. cit. n. 96.

102 Para. 95 of the Opinion.

103 Para. 96 of the Opinion.

104 Para. 252 of the Opinion.

105 In The Netherlands, for instance, both the absence of a constitutional court and the general impossibility of constitutional scrutiny have led the ECHR to fill that gap.

106 It has even been suggested that “Opinion 2/13 could be seen as a strategic move of the ECJ to provoke such a modification of those unloved provisions of the Treaties that limit its judicial powers;” ‘Editorial Comments', 52 CMLRev. (2015), pp. 116 at 14.

107 Admittedly, this point was already mentioned in para. 11 of Discussion Document of the Court, op.cit.

108 See in particular C. Hillion, ‘A Powerless Court?', op.cit. n. 96.

109 See, inter alia, P. Gragl, op. cit. n. 18 at pp. 3149.

110 Kuijper, P.J., ‘Reaction to Leonard Besselink's ACELG Blog', op. cit. n. 81.

111 Besselink, L., ‘Acceding to the ECHR Notwithstanding the Court of Justice Opinion 2/13', 24 December 2014; http://acelg.blogactiv.eu/2014/12/24/acceding-to-the-echr-notwithstanding-the-court-of-justice-opinion-213/

112 ‘Editorial Comments', 52 CMLRev. (2015), op.cit., n. 106, at 12.

113 Cf. also T. Lock, ‘Oops! We did it again – the CJEU's Opinion on EU Accession to the ECHR', Verfassungsblog on Matters Constitutional, 18 December 2014; http://www.verfassungsblog.de/en/oops-das-gutachten-des-eugh-zum-emrk-beitritt-der-eu/#.VK-e08bivs4.

114 See the Report on the 75th meeting of the Steering Committee for Human Rights (CDDH) of he Council of Europe, Doc. 47+1(2012)002, 4 July 2012: http://www.coe.int/t/dghl/standardsetting/hrpolicy/accession/Working_documents/47_1%282012%2902_Extracts_CDDH_Report_EN.pdf.

115 See also Peers, S., op. cit. n. 31; as well as ‘Editorial Comments', 52 CMLRev. (2015) op.cit. n. 106, at 14.

116 See for instance the plans made public by the UK's Justice Minister to pull the United Kingdom out of the European Court of Human Rights; http://www.telegraph.co.uk/news/politics/conservative/11137442/Tory-plan-to-leave-ECHR-contains-howlers-and-is-factually-inaccurate-says-partys-ex-Attorney-General.html

117 See in that regard also the procedure in Article 47 ECHR on the basis of which the Court may give an advisory opinion on the interpretation of the Convention or its protocols, and – arguably – on modifications of the Convention.

118 Sarmiento, D., Who's afraid of the Charter? The Court of Justice, national courts and the new framework of fundamental rights protection in Europe, 50 CMLRev. (2013) 1267, at 1269.

119 Case C-555/07, Seda Kücükdeveci v Swedex GmbH & Co. KG, ECLI:EU:C:2010:21.

120 Case C-399/11, Stefano Melloni v Ministerio Fiscal, ECLI:EU:C:2013:107.

121 See, inter alia, Sara Iglesias Sánchez, The Court and the Charter: The impact of the entry into force of the Lisbon Treaty on the ECJ's approach to fundamental rights, 49 CMLRev. (2012) 1565.

122 See, inter alia, D. Anderson, C.C.Murphy “The Charter of Fundamental Rights”, in A. Biondi, P. Eeckhout, S. Ripley (eds) “EU Law after Lisbon”, Oxford 2012, p. 155.

123 Case C-583/11P, Inuit Tapiriit Kanatami and Others v European Parliament and Council of the European Union, ECLI:EU:C:2013:625.

124 See, inter alia, Case C-236/09, Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres, ECLI:EU:C:2011:100, C-291/12, Michael Schwarz v Stadt Bochum, ECLI:EU:C:2013:670.

125 See further, inter alia, A. Łazowski, Decoding a Legal Enigma: the Charter of Fundamental Rights of the European Union and Infringement Proceedings, 14(4) ERA Forum (2013) 573.

126 Para. 21.

127 See further E. Hancox The meaning of “implementing” EU law under Article 51(1) of the Charter: Åkerberg Fransson, 50 CMLRev. (2013) 1411.

128 See Case C-176/12, Association de médiation sociale v Union locale des syndicats CGT and Others, ECLI:EU:C:2014:2. For an academic appraisal see, inter alia, Ni. Lazzerini, (Some of) the fundamental rights granted by the Charter may be a source of obligations for private parties: AMS, 51 CMLRev. (2014) 907.

129 See Ward, A., Damages under the EU Charter of Fundamental Rights, 12 ERA Forum (2012) 589.

130 See, inter alia, M. Safjan and D. Düsterhaus, A Union of Effective Judicial Protection: Addressing a Multi-level Challenge through the Lens of Article 47 CFREU, 33 YEL (2014) 3.

131 Spaventa, E., Article 45, in S. Peers, T. Hervey, J. Kenner, A. Ward (eds), The EU Charter of Fundamental Rights. A Commentary, CH Beck-Hart-Nomos, Oxford and Portland, Oregon, 2014, pp. 11611176.

132 See on the judicial dialogue L.F.M. Besselink, ‘Should the European Union Ratify the European Convention on Human Rights?', op.cit. n. 70. An interesting (yet admittedly hardly relevant) quote in that article is worth mentioning here: “As one former judge of the ECtHR once remarked, the judges from Luxembourg each travel with their individual car and driver provided by the ECJ; the judges from Strasbourg go by bus.” (at 306).

133 “On 7 January 2010, the Permanent Representatives Committee, approved the participation, as an observer, of a delegate from the Court of Justice of the European Union in the meetings of the Working Party on Fundamental Rights, Citizens Rights and Free Movement of Persons, throughout the duration of the discussions on the draft recommendation for the opening of the negotiations for the accession of the European Union to the European Convention on Human Rights, on the basis of document 17807/09 JAI 948 INST 255.”

134 Ibid, at 318.

135 As argued by S. Peers: “the Court is seeking to protect the basic elements of EU law by disregarding the fundamental values upon which the Union was founded.” See S. Peers, op. cit. n. 31.

136 See references in section A of this article.

137 Cf. also Kuijer, M., The Accession of the European Union to the ECHR: A Gift for the ECHR's 60th Anniversary or an Unwelcome Intruder at the Party?, 3 Amsterdam Law Forum (2011), 17, 2021; as well as ‘Editorial Comments', 52 CMLRev. (2015), op.cit. n. 106, at 3-4.

138 In a similar vein: ‘Editorial Comments', 52 CMLRev. (2015), op.cit. n. 106 at 15.

139 Cf. also Gragl, P., A Giant Leap for European Human Rights? The Final Agreement on the European Union's Accession to the European Convention on Human Rights, 51 CMLRev. (2014), 13-58.

* Professor of EU Law, Westminster Law School, University of Westminster, London.

** Professor of International and European Institutional Law, University of Twente, The Netherlands.

The authors wish to thank Prof. Pieter Jan Kuyper and Dr. Mielle Bulterman for their useful comments on an earlier draft. The usual disclaimer applies.

When Caveats Turn into Locks: Opinion 2/13 on Accession of the European Union to the ECHR

  • Adam Łazowski and Ramses A. Wessel

Metrics

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed