Dogfight continues: Strasbourg not happy with EU Court on accession to ECHR

spielmannUnsurprisingly, the Opinion of the EU Court (just before Christmas – my post here) that the proposed accession of the EU to the ECHR on current terms would be unlawful has not gone down well in Strasbourg.

An excellent post today by Tobias Lock on the Verfassungblog tells the story here, but these are the highlights. In short, the President of the Strasbourg Court, Dean Spielmann, added some text to his review of 2014, in a speech given yesterday, 29 January – here.

Lots of interesting stuff on the 2014 ECtHR case law (and case load), but his withering bit on the CJEU’s Opinion is worth quoting.

Bearing in mind that negotiations on European Union accession have been under way for more than thirty years, that accession is an obligation under the Lisbon Treaty and that all the member States along with the European institutions had already stated that they considered the draft agreement compatible with the Treaties on European Union and the Functioning of the European Union, the CJEU’s unfavourable opinion is a great disappointment.

In short, the CJEU is out of line with the views of the member states, and not least with the obligation in Article 6 of the Lisbon Treaty that the EU “shall” accede to the ECHR.

But Spielmann did not leave it at that, as we shall see.

He continued

Let us not forget, however, that the principal victims will be those citizens whom this opinion (no. 2/13) deprives of the right to have acts of the European Union subjected to the same external scrutiny as regards respect for human rights as that which applies to each member State. More than ever, therefore, the onus will be on the Strasbourg Court to do what it can in cases before it to protect citizens from the negative effects of this situation.

As Lock points out in his post, there have hitherto been good relations between the top European courts. The case law, such as Bosphorus, assumes that EU protection of human rights would be equivalent or comparable to that required by the Convention. If so, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the EU. But such a presumption can be rebutted if, in the circumstances, it is considered that the protection of Convention rights was “manifestly deficient”. In such cases, the interest of international cooperation would be outweighed by the Convention’s role as a “constitutional instrument of European public order” in the field of human rights.

It may be thought unlikely that the Strasbourg Court retreats from the Bosphorus decision, not least because the EU is now expressly tied into the Charter and the fundamental rights set out in it which mirror those set out in the ECHR. But, Lock speculates, there may occur

a tightening of the conditions for the application of the presumption so that more cases would be reviewable by Strasbourg.

So Strasbourg would look rather more carefully at cases before it with Euro issues. The gloves may not be completely removed by Strasbourg, but the current deference of Strasbourg towards Luxembourg may just be a teeny bit reduced.

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