EU judges oppose accession of EU to ECHR

22 December 2014 by David Hart KC

Opinion of CJEU, 18 December 2014 – read Opinion

Well, here’s a thing. The EU top court in Luxembourg has decided that it is somehow against the EU treaties for it to defer in specific instances to the other European top dog, the ECtHR in Strasbourg.

Accession of the EU to the ECHR has been a very slow-burn process, with the Commission starting things off in 1979 (sic). The breakthrough, or so it appeared at the time, was the entry into force of Article 6 of the Lisbon Treaty of European Union, in December 2009. This (Art.6(2)) makes it a treaty obligation  that the EU

“shall accede to the ECHR”.

Nice and simple then? No, not exactly, when you look at the extremely complex  Draft Agreement on Accession of the European Union to the European Convention on Human Rights, concluded in April 2013- my post here. This seeks to make the adjustments to both the EU and ECHR institutions enabling a non-state organisation such as the EU to sign up to the ECHR.

One of the steps contemplated by the draft Agreement was the obtaining of an opinion from the CJEU on whether the Agreement was compatible with the EU Treaties. And the CJEU’s firm “non” to that question will inevitably set back the process, if not lead to its complete derailment.

The Opinion has already been well analysed by Aidan O’Neill QC here and Steve Peers here, neither in terms flattering of the CJEU. It is of some importance, so here is my penn’orth.

The gap

The underlying problem is easy to identify. The EU may commit human rights breaches but at the moment cannot be taken to Strasbourg for such breaches. Take the Commission infringing a party’s rights in a competition investigation or indeed an infringement by the CJEU itself of Article 6 ECHR. Neither can go further than the CJEU. A good example of a claim involving the latter arose in the Kokkelvisserij case (here), sequel to a famous CJEU decision (here) on a preliminary reference about the Habitats Directive. The disappointed cockle fishermen tried to go to Strasbourg, complaining that they had not had an opportunity of responding to the Advocate-General’s opinion (and, they said, errors in it) before the Court ruled against them. Strasbourg declared the claim inadmissible. The EU (EC then) had and has a separate legal personality, and further the cockle fishermen had no claim against the Netherlands arising out of the preliminary reference.

In addition, the EU legislative institutions may pass a law which is in breach of the ECHR. A citizen will not be able to complain about any breach of it unless his or her member state is also party to the enforcement of that law.

One area which would be bound to be scrutinised sooner or later by Strasbourg on any accession  is the very restrictive regime for standing before the CJEU and its compatibility with Article 6: see my post here on the Inuit litigation.

The accession agreement

The draft Agreement tried to resolve potential conflicts between the ECtHR in Strasbourg and the CJEU in Luxembourg. Strasbourg decisions involving the EU as a party will be binding on EU institutions including the CJEU. But where the CJEU has not yet assessed the compatibility between the EU law in question and the ECHR, then the CJEU is invited to do so before the Strasbourg Court gives its view – the prior involvement system. But this assessment by the CJEU will not bind the Strasbourg Court, though plainly it will be highly persuasive. The EU will also get its own Strasbourg judge, just like all the member states. In cases involving member states and the EU, both could be party to Strasbourg applications – a proposal known as the co-respondent system.

The CJEU opinion

The CJEU has been here before. In 1996, in Opinion 2/94, it ruled that the EC could not accede to the ECHR, deciding that only a Treaty amendment could overturn this judgment.

The question which now arose is whether Article 6(2) TEU in Lisbon achieved this. That treaty also added a Protocol 8 to the Treaties, regulating aspects of the accession, as well as a Declaration requiring that accession to the ECHR must comply with the ‘specific characteristics’ of EU law.

The Court ruled that the draft agreement was incompatible with EU law, for five main reasons.

1. It did not take account of the specific characteristics of EU law, in that

(i) it did not curtail the possibility of Member States or indeed the ECHR having higher human rights standards than EU law

(ii) it did not provide for the application of the rule of ‘mutual trust’ in Justice and Home Affairs matters, which means that Member States must presume that all other Member States are ‘complying with EU law and particularly with the fundamental rights recognised by EU law’, other than in ‘exceptional circumstances’.

(iii) it failed to rule out the possibility that when applying Protocol 16 to the Convention (post-dating the draft Accession Agreement), which provides for national courts to send questions to the European Court of Human Rights (ECtHR) on the interpretation of the ECHR, those national courts would ask the ECtHR to rule on EU law issues, before they asked the CJEU. This, said the CJEU, would circumvent the EU’s preliminary ruling procedure.

2. It  violated Article 344 TFEU, which gives the CJEU monopoly on inter-state dispute settlement regarding EU law between Member States, since it failed to rule out the possible use of the ECtHR to settle such disputes instead.

3. The co-respondent system would give the ECtHR the power to interpret EU law; and the ECtHR should not have the power to allocate responsibility for breach of the ECHR between the EU and Member States, since only the CJEU can rule on EU law.

4. The system for prior involvement of the CJEU is incompatible with EU law, because it did not reserve to the EU the power to rule on whether the CJEU has already dealt with an issue, and did not permit the CJEU to rule on the interpretation, not just the validity, of EU law.

5.  The rules relating to the Common Foreign and Security Policy (CFSP) were incompatible with EU law, because a non-EU court cannot be given the power of judicial review over EU acts – pretty ironic, this one because the CJEU has no such jurisdiction itself as regards most CFSP issues.

 What, if anything, can be done? 

It is far from clear that these points can be ironed out by simple re-drafting of the draft Accession Agreement.

Probably the key passage of the Opinion is at [179]-[186], where one senses the steel of the CJEU when its jurisdiction is threatened. Having concluded that accession would make the ECHR like every other international instrument binding on the EU institutions, at [183] it relies on previous rulings of the Court to the effect that an international agreement may not have “an adverse effect on the autonomy of the EU legal order”. So the ECHR must not bind the EU to a particular interpretation of the rules of EU law: [184].

And then a dichotomy between permissible and impermissible interpretations which could be reached by the ECtHR, torpedoing any effort to give the ECtHR the last word:

185. It is admittedly inherent in the very concept of external control that, on the one hand, the interpretation of the ECHR provided by the ECtHR would, under international law, be binding on the EU and its institutions, including the Court of Justice, and that, on the other, the interpretation by the Court of Justice of a right recognised by the ECHR would not be binding on the control mechanisms provided for by the ECHR, particularly the ECtHR……

186. The same would not apply, however, with regard to the interpretation by the Court of Justice of EU law, including the Charter. In particular, it should not be possible for the ECtHR to call into question the Court’s findings in relation to the scope ratione materiae of EU law, for the purposes, in particular, of determining whether a Member State is bound by fundamental rights of the EU.

A dichotomy almost impossible to observe in practice, when any decision will involve analysing (i) the requirements of EU law (taking into account the Charter) and (ii) how those requirements conform to Strasbourg’s view of what the Convention requires. And, as Steve Peers observes, it is difficult to see what accession would achieve if secured on the terms laid down by the Court.

In addition, as Aidan O’Neill QC points out, Article 6(2) TEU would appear to foreclose the main thrust of the argument by the Court; the Member States by requiring accession to the ECHR amended the Treaties to get over these jurisdictional concerns of the Court, whereas in the Opinion, the CJEU says it is “Master of the Treaties” and will not recognise the lawfulness of any agreement “which might threaten to displace its position at the apex Court for the EU”.

If this is right, then no amount of redrafting of the Agreement will work to implement accession as apparently intended by those party to the Agreement – the Court will have to get its wings expressly clipped by further amendments of the Treaties.

So it is back to the drawing board. And even if the Agreement and/or Treaties can be re-drafted to get past the Court, there are a number of further steps as I pointed out in my earlier post here:

• the EU will have to come up with its own internal rules as to how it is to function as a party to the ECHR
• the Council of the European Union – the states’ representatives from all 28 EU states – will have to adopt unanimously the decision authorising the signature of the Accession – an Accession which would make it more difficult for any state to retreat from the ECHR.
• All ECHR state parties will then have to ratify amendments to the Convention.

Related posts:

• When is the ECHR going to start watching the EU?
• Hot off the press: how the ECHR is indeed going to be watching the EU
• European Commission fines and their compliance with Article 6
• No standing for the Inuit in Luxembourg
• What have the Inuits got to do with keeping EU law in check?
• Aarhus Convention trumps EU Regulation, says EU Luxembourg Court
• Annulment: all or nothing? Walloons in a mess about muck-spreading?