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

Published online by Cambridge University Press:  06 March 2019

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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.

Type
Special Section - Opinion 2/13: The E.U. and the European Convention on Human Rights
Copyright
Copyright © 2015 by German Law Journal GbR 

References

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.Google Scholar

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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/.Google Scholar

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:Google Scholar

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.Google Scholar

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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.Google Scholar

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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 Google Scholar

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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.Google Scholar

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

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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.Google Scholar

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).Google Scholar

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.”Google Scholar

134 Ibid, at 318.Google Scholar

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.Google Scholar

136 See references in section A of this article.Google Scholar

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.Google Scholar

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

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.Google Scholar