Court of Justice of the European Union: Opinion 2/13
The CJEU was asked last year by the EU Commission to give its opinion on whether the draft agreement on the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms was compatible with EU law. The results may surprise some who regard the CJEU as a hotbed of radical judicial activism. However what may look like a bad case of flu is in fact simply a procedural cold. The accession agreement will return, rendered compatible.
In summary the CJEU has sent the agreement back to the negotiators and those drafting it because:
(a) it appeared to treat the EU as a single state when it is not;
(b) it sacrificed legal control of parts of EU law to a non-EU body;
(c) it failed to draw proper demarcation lines between the Charter of fundamental rights (EU document) and the Convention on Human Rights and fundamental Freedoms (Council of Europe document). There is considerable overlap between the two but they are by no means identical.
(d) it failed to include proper safeguards to ensure the supremacy of EU law against the Court of Human Rights in Strasbourg (ECtHR).
(e) it allows a state to use non EU means to resolve a matter of the interpretation of EU law.
(f) it gives exclusive jurisdiction to the Strasbourg courts over certain parts of Common Foreign and Security policy over which the CJEU has no jurisdiction even when they involve Charter of Fundamental Rights guarantees.
The ECHR was concluded in the Council of Europe and in force from 3 September 1953. The 48 members of the Council of Europe are Contracting Parties. In 1996 the CJEU gave an Opinion that, as Community law stood at the time, the Community had no competence to accede to it.
In 2000 the EU proclaimed the Charter of Fundamental Rights of the EU. This has the same legal value as the Treaties (as a result of the Treaty of Lisbon from 1 December 2009). The Lisbon Treaty amended Article 6 of the EU Treaty so that Fundamental rights as guaranteed by the ECHR (and as they result from the constitutional traditions common to the Member States constitute general principles of EU law. That treaty also provided for the accession of the EU to the ECHR to take place.
However that process requires a careful balance to be kept between the competing bodies of law and the competing institutions which administer them. So the EU by Protocol No 8 provides, that the accession agreement must fulfil certain conditions so as, in particular, to make provision for preserving the specific characteristics of the EU and EU law and to ensure that accession of the EU does not affect its competences or the powers of its institutions.
Negotiations led by the Commission from 4 June 2010 resulted on 5 April 2013 in agreement on the draft accession instruments and on 4 July 2013, the Commission asked the CJEU to give its Opinion on the compatibility of the draft agreement with EU law, pursuant to Article 218(11) TFEU.
On Friday 19 December 2013 the CJEU gave its opinion:
1. The EU cannot be considered to be a State, such accession must take into account the fact that accession is subject to the Treaties themselves.
2. As a result of accession, the ECHR, like any other international agreement concluded by the EU, would be binding upon the institutions of the EU and on its Member States, and would therefore form an integral part of EU law. Like any other Contracting Party, the EU would be subject to external control provided for in the ECHR to ensure the observance of the ECHR rights and freedoms and, in particular, to the decisions and judgments of the European Court of Human Rights (‘the ECtHR’). The interpretation of the ECHR provided by the ECtHR would be binding on the EU and all its institutions but the interpretation by the CJEU of a right recognised by the ECHR would not be binding on the ECtHR.
The interpretation of EU law, including the Charter, provided by the Court itself falls within the CJEU’s remit.
The ECHR gives the Contracting Parties the power to lay down higher standards of protection than those guaranteed by the ECHR. However the CJEU took the view that the ECHR should be coordinated with the Charter.
If the Charter rights correspond to those guaranteed by the ECHR, the power granted to Member States by the ECHR must be limited to that which is necessary to ensure that the level of protection provided for by the Charter and so that the primacy, unity and effectiveness of EU law are not compromised.
The first major defect found by the Court is that there is no provision in the draft agreement to ensure such coordination.
The draft agreement impermissibly treats the EU as a single state and treats it as any other Contracting Party. In relation to the matters covered by the transfer of powers to the EU, the Member States have accepted that their relations are governed by EU law to the exclusion of any other law. The ECHR would require each Member State to check that the other Member States had observed fundamental rights, even though EU law imposes an obligation of mutual trust between those Member States. Accession under these conditions would upset the underlying balance of the EU and undermine the autonomy of EU law. The draft agreement contains no provision to prevent this from happening.
As a result of Protocol No 16 ECHR (of 2 October 2013) the highest courts and tribunals of the Member States to request advisory opinions from the ECtHR on questions of principle relating to the interpretation or application of the rights and freedoms guaranteed by the ECHR or the protocols thereto.
The ECHR forming an integral part of EU law, that mechanism could affect the autonomy and effectiveness of the preliminary ruling procedure provided for by the TFEU. This would happen in particular when Charter rights correspond to ECHR rights. Thus a request for a Protocol 16 advisory opinion could trigger the procedure for the ‘prior involvement’ of the Court. There would be a risk that the preliminary ruling procedure might be circumvented. The draft agreement fails to make any provision in respect of the relationship between those two mechanisms.
4. By the TFEU a member state must not submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for by the Treaties. So the CJEU has exclusive jurisdiction in any dispute between the Member States and between those Member States and the EU regarding compliance with the ECHR. According to the draft agreement, proceedings before the Court are not to be regarded as a means of dispute-settlement. This is not sufficient to preserve the CJEU’s exclusive jurisdiction. Under the accession agreement, the EU or Member States might submit an application to the ECtHR concerning an alleged violation of the ECHR by a Member State or the EU in relation to EU law. To render the agreement compatible with TFEU law, it would be necessary expressly to exclude the ECtHR’s jurisdiction for member states between themselves or against the EU as regards the application of the ECHR within the context of EU law.
5. The co-respondent procedure in the agreement was intended to ensure that proceedings brought before the Strasbourg Court by non-EU states (and also individual applications) are correctly addressed to the member state and/or the EU as appropriate. The agreement says that a state is to become a co-respondent either by accepting an invitation from the ECtHR or by decision of the ECtHR upon the request of that Contracting Party.
Suppose the EU or a Member State requests leave to intervene as a co-respondent before the ECtHR, the Strasbourg court must prove that the conditions for their participation in the process are met in the light of the plausibility of the reasons given by them.
However this would mean that the Strasbourg court would have to assess EU law on the division of powers between the EU and its Member States as well as the criteria for the attribution of their acts or omissions. Its decision would be binding on the Member States and on the EU.
That would present an unacceptable risk to the division of powers between the EU and its Member States.
6. The agreement creates further risks for the CJEU. The concept of prior involvement in proceedings – whether the court has previously given a ruling on the same question of law as that in issue before the ECtHR – can only be determined by the competent EU institution (which then binds the ECtHR). If the ECtHR were allowed to rule on that question it would in effect have jurisdiction to interpret the case-law of the Court.
The court advises therefore that the agreement should ensure that in any case pending before the Strasbourg court the EU is fully informed so that the relevant institution can assess if the CJEU has already given a ruling on this question and if not to permit the prior involvement mechanism to be started.
The draft agreement excludes the possibility of bringing a matter before the Court in order for it to rule on a question of interpretation of secondary law by means of that procedure. However placing a limit on the scope of the procedure solely to questions of validity of secondary laws would affect the competences of the EU and the powers of the CJEU.
7. The Opinion finally turns to the question of judicial review of matters of common foreign and security policy. There are certain matters in that field which fall outside the jurisdiction of the CJEU.
However the ECtHR would be empowered to rule on the compatibility with the ECHR of acts, actions or omissions performed in that field including those whose legality the CJEU cannot review in the light of fundamental rights. This would give to a non EU body exclusive judicial review rights over parts of the EU. The agreement failed to have regard to this characteristic of EU law and to reflect it.
The Court therefore concludes that the draft agreement on the accession of the EU to the ECHR is not compatible with EU law.
The opinion of the Court on matters of legality is obviously extremely important. As the Advocate General Kolkott pointed out: The Opinion procedure has the aim of forestalling complications which would result from legal disputes that might arise subsequently concerning the compatibility with EU primary law of international agreements binding upon the EU. Therefore the negotiators of the accession agreement will have to take on board the criticisms of the legality of the agreement at this stage. There may yet be further delay.
However in practical terms little difference may be noted. The rights enshrined in the Charter are in effect already actionable before the Court of Justice within the fields of law governed by EU law, and that significance of that is that even if the Human Rights Act 1998 were to be repealed in this country, human rights would have to be taken into account in all areas governed by the Charter.
The Opinion of the CJEU therefore is a kind of bureaucratic line in the sand. The EU remains a collection of states bound by treaty and not a super state. The Convention on Human Rights is a treaty which binds all 28 member states but binds a further 20. Human Rights is an area in which the slightest deviation by one country (let alone 28) can be used by another country to justify its own poor behaviour. It is important therefore that one body should speak definitively on it. The EU’s need for exclusive jurisdiction over areas of EU law theoretically sets up the possibility of divergence in human rights norms between the 28 member states and the 48 council states. The final accession agreement is likely to reflect that nice balance of power.