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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

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.Google Scholar

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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.”Google Scholar

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25 Paras. 3–143 of the Opinion.Google Scholar

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

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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.).Google Scholar

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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.”Google Scholar

44 Para. 183 of the Opinion.Google Scholar

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

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

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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.”.Google Scholar

53 Ibidem.Google Scholar

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.Google Scholar

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79 Para. 213 of the Opinion.Google Scholar

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

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

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.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

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.Google Scholar

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

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